BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD L. WEILAND, File Nos. 883500 & 876589 Claimant, A R B I T R A T I 0 N vs. D E C I S I O N WILSON FOODS CORPORATION, F I L E D Employer, Self-Insured, JAN 16 1990 Defendant. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION These are arbitration proceedings brought by Ronald Weiland, claimant, against Wilson Foods Corporation, self-insured employer, defendant. The cases were heard by the undersigned in Storm Lake, Iowa on November 21, 1989. The record consists of the testimony of claimant. The record also consists of the testimonies of Colleen Sue Weiland and Michael Payne. Additionally, the record consists of joint exhibits 1-18. Subsequent to the hearing, claimant moved to amend petition No. 883500 to reflect an injury date of August 15, 1987. The motion was granted. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on January 4, 1988, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary and permanent disability as to the injury on January 4, 1988; 4. That the extent of entitlement to weekly compensation for temporary total disability or healing period, if defendant is liable for the injury, is stipulated to be from February 15, 1988 to April 24, 1988; 5. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; the commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be April 25, 1988; 6. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $255.35 per week; and, 7. Defendant paid claimant 10 weeks of compensation at the rate of $255.35 per week prior to hearing. ISSUES As a result of the prehearing report and order submitted and approved on November 21, 1989, the issues presented by the parties are: 1. Whether claimant received an injury on August 15, 1987 which arose out of and in the course of claimant's employment; 2. Whether there is a causal relationship between the alleged injury of August 15, 1987 and the claimed disability; 3. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits as a result of the alleged injury of August 15, 1987; and, 4. The nature and extent of temporary or permanent partial disability benefits to which claimant is entitled as a result of his injury of January 4, 1988. FACTS PRESENTED Claimant is 52 years old. He has worked for defendant on three separate occasions. The last occasion started in 1978. Claimant is currently employed by defendant. Claimant testified that on August 15, 1987, he was working in the sausage department and setting up for the night crew. He stated he was attempting to connect a heavy rotating belt to another belt when he hurt his back. Claimant indicated he reported the incident to his foreman, Keith Grower. Claimant also stated he reported to the nurse's station for medical attention. Later, claimant said he sought chiropractic treatment on his own. Claimant also testified the same incident occurred on January 4, 1988. He was referred to Dennis L. Johnson, M.D., by the company nurse. Claimant testified he was prescribed medication and given exercises to perform. Claimant indicated he currently experiences low back pain. He states it is usually a dull pain. He stated he is able to hold a job at defendant's establishment but that the job is a lighter position at base pay only. Claimant testified that prior to his injury on January 4, 1988, he was able to handle a position which carried a $.20 increase over the base pay. Michael Payne, the personnel director, testified for defendant. He reported new jobs with $.20 to $.30 per hour increases have been offered to claimant and his co-workers. Mr. Payne stated claimant has been accepted for the new position. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that he received injuries on August 15, 1987 and January 4, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). The claimant has the burden of proving by a preponderance of the evidence that the injuries of August 15, 1987 and January 4, 1988 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable. work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). ANALYSIS Claimant has proven by a preponderance of the evidence that he sustained an injury on August 15, 1987 which arose out of and in the course of his employment. Claimant described the incident. He provided the details of the events surrounding his injury. Claimant's medical history supports claimant's contentions that he was injured in August of 1987. Dennis L. Johnson, M.D., attributes claimant's condition to his injury of August 15, 1987. Dr. Johnson, in his letter of May 31, 1989, writes the following: In reviewing my records on this patient, in his history he states that he first experienced his low back pain while changing a heavy conveyor belt in August of 1987 at work at the Wilson Plant. In July of 1989, Dr. Johnson elaborates in a letter to claimant's attorney: Yes, I believe that my findings after examining Mr. Weiland are consistent with the history Mr. Weiland gave me in regards to the August 1987 injury at Wilson Foods. In light of the foregoing, it is the determination of the undersigned that claimant's work injury of August 15, 1987 is causally related to claimant's alleged condition. However, it is this deputy's decision that claimant's August injury did not cause claimant to sustain any temporary or permanent disability. The bases for that decision are that claimant did not miss any work time until after the work injury of January 4, 1988. Also, claimant did not seek medical attention until after the injury of January 4, 1988. The parties in the instant case stipulated that claimant's injury of January 4, 1988, resulted in both temporary and permanent disability. The parties stipulated that claimant is entitled to healing period benefits from February 15, 1988 to April 24, 1988. This period is comprised of 9.857 weeks. The final issue to address is the nature and extent of claimant's permanent disability. Dr. Johnson, the treating orthopedic physician, determined the following with respect to claimant's condition: The patient does have a grade 1 degenerative spondyololisthesis [sic] of L5 on S1 with lipping anteriorly at L4-5 and L5,S1. It is my opinion that the patient does have a permanent partial physical impairment rating of 6 percent of the lumbar spine equal to 6 percent of the whole man. Scott B. Neff, D.O., an orthopedic physician, examined claimant for the purpose of providing an impairment evaluation. Dr. Neff wrote in his joint letter with Thomas W. Bower, L.P.T.: He continues to complain of pain and discomfort when he gets into certain positions and he feels a catching sensation. He has constant pain in his low back but no radicular pain on either side. Range of motion studies show full range of motion for the trunk. The patient is currently working in the Sausage Department at Wilson Foods. The patient is somewhat frustrated and indicates that he does not feel that he is improving and wants answers. He has been told by Dr. Blume, a neurologist in the Sioux City area, that he has two ruptured discs and since he is working presently, he would not recommend surgery at this time. He has also been told that he needs a fusion. We have no additional medical nor any CAT scan or x-ray information at this time to either prove or disprove the fact that he has two herniated discs. The mere fact that he has full range of motion, and essentially the only basis that we have at this time for rating, there would be no percentage of impairment. However, if the patient does have in fact two ruptured discs, the patient would have sustained a 7% impairment to the body as a whole. Hopefully the information regarding the diagnostic studies will be forwarded to Dr. Neff and we can further elaborate on this at this time. In June of 1989, Dr. Neff determined: Consequently, it is my opinion that this patient, based on the x-ray reports that we have and his physical examination, has a total of a 10 percent impairment to his body as a whole as a result of his combined back problem, that problem being the combination of a herniated disc at L5-S1, and a spondylolysis at L5-S1. In my opinion, the impairment which would be attributed to his work activity, based on the history, would be 5 percent to the body as a whole. Claimant was also examined for purposes of providing an impairment evaluation by Horst G. Blume, M.D., a neurosurgeon. Dr. Blume, after examining claimant, wrote in his letter of May 3, 1989: It is my opinion, within reasonable medical probability that since the patient has two ruptured discs, he has a permanent/partial impairment to the body as a whole of 25% and this percentage is related to the work related accidents at Wilson Packing Company as described in this letter, but the spondylolysis and spondylolisthesis pre-existed prior to the accidents. It is also my opinion that the patient should definitely avoid lifting except 20 pounds occasionally in order to avoid aggravation of his pain condition. After reviewing all of the medical evidence, it is the determination of the undersigned that greater weight is given to the opinion of Dr. Johnson. He was the treating physician. He had seen claimant on numerous occasions. The other physicians were not retained for treatment purposes. They were retained only for purposes of evaluation. Therefore, it is determined claimant has a functional impairment of six percent. Claimant argues he has an industrial disability. He maintains there has been a loss of earnings and a loss of earning capacity. Claimant asserts that because he has recently been working at a position which only pays a base rate, he has sustained a loss of earnings and a loss of earning capacity. Defendant argues that claimant has bid upon and obtained a two bracket job which is waiting for claimant. Claimant can have the position with a two week trial period. It is the determination of the undersigned that claimant is industrially disabled. Claimant has been placed under certain work restrictions relative to lifting. He is only able to lift on an occasional basis. Claimant had been unable to work two and three bracket positions for a period of time. The evidence now demonstrates claimant is assuming a position with his fellow workers which will provide for four to six brackets above the base pay level. Employment records for claimant demonstrate that up to the time of the hearing, he was able to work all but four weeks in 1989. In light of the foregoing, it is the decision of the undersigned that claimant has sustained a permanent partial disability in the sum of 10 percent. FINDINGS OF FACT AND CONCLUSIONS OF LAW Finding 1. Claimant sustained a back injury arising out of and in the course of his employment on August 15, 1987. Finding 2. Claimant sustained a back injury arising out of and in the course of his employment on January 4, 1988. Finding 3. Claimant did not sustain any temporary or permanent disability as a result of the work injury on August 15, 1987. Finding 4. As a result of the work injury on January 4, 1988, claimant has an attributable functional impairment of six percent of the body as a whole. Finding 5. As a result of his work injury on January 4, 1988, claimant missed work from February 15, 1988 to April 24, 1988. Conclusion A. Claimant has met his burden of providing he has a 10 percent permanent partial disability as a result of his injury on January 4, 1988. Conclusion B. Claimant has met his burden of proving he has healing period benefits due to him for 9.859 weeks. Conclusion C. Claimant has failed to meet his burden of proof relative to any temporary or permanent disability because of his work injury of August 15, 1987. ORDER THEREFORE, defendant is to pay unto claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of two hundred fifty-five and 35/100 dollars ($255.35) per week as a result of the injury on January 4, 1988. Defendant is to also pay nine point eight-five-seven (9.857) weeks of healing period benefits at the stipulated rate of two hundred fifty-five and 35/100 dollars ($255.35) per week as a result of the injury on January 4, 1988. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant is to be given credit for all benefits previously paid to claimant. Costs of the action are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a claim activity report upon payment of this award. Signed and filed this 16th day of January, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law 632-640 Badgerow Bldg P 0 Box 1194 Sioux City, IA 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. Cherokee, IA 51012 5-1108; 5-1803 Filed January 16, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD L. WEILAND, File Nos. 883500 & 876589 Claimant, A R B I T R A T I 0 N vs. D E C I S I 0 N WILSON FOODS CORPORATION, Employer, Self-Insured, Defendant. Claimant awarded 10 percent permanent partial disability for an injury to claimant's back. Claimant was able to return to work but at a position which only paid a base rate. Claimant, at the time of the injury, was to be given a new position which paid above the base pay level. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SVSAN PALMER-ATTARI, Claimant, vs. BANKERS LIFE & CASUALTY CO., FILE NO. 883503 A P P E A L Employer, D E C I S I O N and ARGONAUT INSURANCE COMPANIES, Insurance Carrier, Defendants. The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 11, 1990 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this 21st day of August, 1992. BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Ronald L. Anderson Attorney at Law 600 Midland Building 206 6th Avenue Des Moines, Iowa 50309 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 9998 Filed August 21, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUSAN PALMER-ATTARI, Claimant, vs . File No. 883503 BANKERS LIFE & CASUALTY CO., A P P E A L Employer, D E C I S I O N and ARGONAUT INSURANCE COMPANIES, Insurance Carrier, Defendants. 9998 Summary affirmance of deputy's decision filed October 11, 1990 . Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT M. SCHOON, : : Claimant, : : vs. : : File Nos. 883508, STYLECRAFT, INC., : 809961 & 796895 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : TRAVELERS INSURANCE COMPANY : and STANDARD FIRE INSURANCE : COMPANY, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ statement of the case This is a consolidated proceeding in arbitration brought by Robert M. Schoon, claimant, against Stylecraft Inc., employer (hereinafter referred to as Stylecraft). In case numbers 796895 and 809961 there is a claim against Stylecraft as insured by Standard Fire Insurance Company (an appendage of Aetna Casualty & Surety) for workers' compensa tion benefits as a result of alleged injuries on May 14, 1985 and November 7, 1985. Case number 883508 involves a claim against the Second Injury Fund as a result of an alleged work injury on January 16, 1987. A third claim against Stylecraft in this case as insured by Travelers Insurance Company due to the alleged January 16, 1987 injury was settled prior to hearing. On August 28, 1990, a hearing was held on the consolidated proceedings against Stylecraft as insured by Standard Fire Insurance Company and the Second Injury Fund and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have Page 2 stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Stylecraft at all times material herein. 2. If defendant Stylecraft is held liable for the alleged injuries, the parties stipulate that claimant has been paid his entitlement to temporary total disability/healing period benefits. Claimant is not seeking additional temporary total disability or healing period benefits in this proceeding. 3. If permanent disability benefits are awarded as a result of the November 7, 1985 alleged injury, they shall begin on January 14, 1987. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $268.47 for the alleged injury of November 7, 1985. 5. All requested medical benefits have been or will be paid by defendants. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to permanent disability benefits; and, III. The extent of claimant's entitlement to benefits from the Second Injury Fund. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant worked for Stylecraft from 1980 until 1989 at which time he was terminated because no work was available at Stylecraft within his physician imposed work restric tions. Claimant was an upholsterer at the plant in Milford, Iowa. He earned approximately $10.63 per hour in this job at the time of the alleged injury on November 7, 1985. Although claimant was receiving incentive pay, his earnings averaged $425.00 a week over 40 hours. On or about May 14, 1985, claimant suffered an injury which arose out of and in the course of his employment. Claimant injured his left arm while grabbing a chair which Page 3 had slipped off a work bench. Claimant was treated by a physician who diagnosed that he suffered either a tear or a strain of the tendon near the elbow. Claimant was off work for one week and four days and returned to work to full duty. Claimant could not recall the specific events of the injury at hearing and stated that he did not suffer any con tinuing or lingering problems with his arm following his recovery and returned to work. An opinion from a physician that this injury caused permanent impairment has not been offered into the evidence. Therefore, claimant has failed to show by the evidence that he suffered permanent partial impairment or permanent disability as a result of the injury of May 14, 1985. On or about November 7, 1985, claimant suffered another injury which arose out of and in the course of his employ ment at Stylecraft. This time, claimant injured his right shoulder while lifting and sliding a chair. Claimant was initially treated by his family doctor but was later referred to an orthopedic surgeon, J. Michael Donohue, M.D. Dr. Donohue diagnosed impingement of the right shoulder and after a 10 week period of conservative care, surgery became necessary and was performed on January 13, 1986. This surgery involved removal of a portion of the acromion, a bone under which the rotator cuff of the shoulder moves; removal of the ligament under the acromion; and, removal of an abnormally thicken bursa, a membrane between the rotator cuff and the acromion. Following recovery from this surgery, claimant was allowed to return to work part-time on February 26, 1986 He was later released to full duty on April 16, 1986, without restrictions. Claimant returned to his original job. Claimant's earnings remain unchanged after his full recovery until January 16, 1987. On or about January 16, 1987, claimant suffered a third injury which arose out of and in the course of his employ ment at Stylecraft. This injury involved his left shoulder. Claimant was treated by Dr. Donohue for this injury as well. Dr. Donohue diagnosed impingement of the left shoulder and found it necessary to operate on this shoulder on two occa sions. The first surgery was performed on June 10, 1987. This surgery was similar to the surgery performed on the right shoulder. Claimant, however, continued to have prob lems and Dr. Donohue diagnosed a rotator cuff tear which was surgically repaired in March of 1988. Following recovery from these surgeries, claimant was released to return to work but with a restriction against repetitive use of both of the shoulders and against over head use of his arms. Claimant was placed on various light duty jobs by Stylecraft but was eventually terminated because there was no work available within these restrictions. As a result of the work injury of November 7, 1985, claimant has a 10 percent permanent partial impairment to the body as a whole. These findings are based upon the uncontroverted views of the only treating orthopedic sur geon, Dr. Donohue. Although Dr. Donohue stated that impingement syndrome results from cumulative trauma over time, it was the last incident on November 7, 1985 in this process which precipitated his treatment and the permanent Page 4 partial impairment and corrective surgery clearly extended beyond the arm. The parts of the body affected constituted a portion of the socket of the ball and socket shoulder joint. Although Dr. Donohue released claimant to return to work without restrictions in 1986, the doctor stated in his deposition that he has now changed his mind and feels it is necessary to impose a restriction against repetitive use of the right shoulder as well. Again, this opinion is uncon troverted. As a result of the work injury of November 7, 1985, claimant has suffered a 20 percent loss of earning capacity. Claimant's medical condition before the work injury was excellent and he had no ascertainable functional impairments or ascertainable disabilities. Claimant was able to fully perform physical tasks involving heavy lifting and repeti tive use of his arms below and above his head. Although claimant was able to return to work to his upholstery job for a period of time in 1986, he could not do so today because of the added restriction now placed upon the use of his right shoulder by Dr. Donohue. Therefore, his inability to return to work at Stylecraft is in part due to the November 7, 1985 injury. Claimant is 42 years of age. Claimant has a high school education. Claimant's past employment primarily consists of heavy manual labor in farm ing, trucking, heavy equipment operation and carpentry. Claimant was able to continue an outside carpentry business for a period of time prior to the January 16, 1987 injury, but with the added restriction placed upon him now by Dr. Donohue, this is not possible. Therefore, claimant's inability to continue functioning as a carpenter is again partly due to the November 7, 1985 injury. Claimant has secured replacement employment as a manager of a building department of a large store in Spirit Lake, Iowa. Claimant currently earns approximately $2,200.00 a month in this job but must work 65 hours a week on average. Therefore, he has a net loss in his hourly rate. It should be noted that the finding of industrial disability as a result of the November 7, 1985 injury is only that portion which was contributed by that injury. The industrial disability as a result of the January 1987 injury was apportioned out. It is further found that although the injuries on November 7, 1985 and January 16, 1987 involved the right and left shoulder and extended into the body as a whole, they also involved an injury to the right and left arm respec tively. However, it is also found that the combined effect of both injuries does not result in a loss of earning capac ity in excess of the sum of the loss of earning capacities suffered by claimant from each injury. The second injury on January 16, 1987 was equal in the nature and extent of dis ability to the first injury on November 7, 1985. Claimant failed to show by a preponderance of the evidence that the loss of heavy use of both of his arms would be any more dis abling than the loss of heavy use of the dominant right arm in his occupations as upholsterer or carpenter. conclusions of law I. Claimant has the burden of proving by a prepon Page 5 derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice, it was found that claimant suf fered two distinct injuries on November 7, 1985 and January 16, 1987 to the body as a whole. The analysis of whether an injury extends beyond a scheduled member in the body as a whole is largely an anatomical analysis to locate the body part affected. The evidence clearly revealed the injury extended beyond the upper head of the arm bone. See Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant has Page 6 suffered a 20 percent loss of earning capacity as a result of the work injury of November 7, 1985. Based upon such a finding, claimant is entitled as a matter of law to 100 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. III. Claimant also seeks additional disability bene fits from the second injury fund under Iowa Code sections 85.63 through 85.69. There are three requirements under the statute to invoke Second Injury Fund liability. First, there must be a permanent loss or loss of use of one hand, arm, foot, leg or eye. Secondly, there must be a permanent loss or loss of use of another such member or organ through a compensable subsequent injury. Third, there must a perma nent industrial disability to the body as a whole arising from both the first and second injuries which is greater in terms of relative weeks of compensation then the sum of the scheduled allowances for those injuries. Defendants contend that the Fund is not liable as claimant has only shown injuries to the shoulders or to the body as a whole which do not invoke Fund liability under Iowa Code section 85.64. However, the cases cited by the Fund all were decided prior to the decision of Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989) and a companion case Fulton v. Jimmy Dean Meat Co., Filed July 23, 1986 (Appeal Decision), which interpreted the decision in Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300, 304 (Iowa 1979). In these cases, it was recognized by this agency that an injury to one of the body members invoking Fund lia bility under Iowa Code section 85.64 could extend into the body as a whole. There is no condition precedent that both of the injuries invoking Fund liability be only injuries solely compensable as scheduled under 85.34(2)(a thru t). In the case sub judice, claimant has shown separate injuries to the right and left extremities each resulting in permanent partial disability thereby satisfying the first two requirements for Fund liability. However, claimant failed to satisfy the third requirement by a showing that the combined effect of both industrial disabilities was greater than the sum of the industrial disabilities arising from each injury. Therefore, the claim against the Fund must be denied as the Fund's liability is apportioned out as required by the recent supreme court decision in Second Injury Fund v. Braden, (No. 89-1193) Filed July 18, 1990. order 1. The claim against the Second Injury Fund in case number 883508 is denied with costs under Division of Industrial Services Rule 343 IAC 4.33 assessed against the claimant. 2. With reference to case number 809961, defendant, Stylecraft, as insured by Standard Fire Insurance Company, shall pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred Page 7 sixty-eight and 47/l00 dollars ($268.47) per week from January 14, 1987. 3. With reference to case number 796895, the claim for additional disability benefits is denied. 4. Defendant, Stylecraft, as insured by Standard Fire Insurance Company, shall pay accrued weekly benefits in a lump sum and shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendant, Stylecraft, as insured by Standard Fire Insurance Company, shall pay the costs in case numbers 796895 and 809961 pursuant to Division of Industrial Services Rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendant, Stylecraft, as insured by Standard Fire Insurance Company, shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.1. Signed and filed this ____ day of November, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. E. W. Wilcke Attorney at Law 826 1/2 Lake St P O Box 455 Spirit Lake IA 51360 Ms. Lorraine J. May Attorney at Law 4th Floor Equitable Bldg Des Moines IA 50309 Mr. James M. Cosgrove Mr. James P. Comstock Attorneys at Law 1109 Badgerow Bldg P O Box 1828 Sioux City IA 51102 Mr. Craig Kelinson Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 Page 8 5-1803; 3202 Filed November 28, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : ROBERT M. SCHOON, : : Claimant, : : vs. : : File Nos. 883508, STYLECRAFT, INC., : 809961 & 796895 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : TRAVELERS INSURANCE COMPANY : and STANDARD FIRE INSURANCE : COMPANY, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1803 Extent of permanent partial disability benefits. 3202 It was held that there is no condition precedent that both of the injuries invoking Fund liability under 85.64 be injuries solely compensable as scheduled under 85.34(2)(a thru t). The Second Injury Fund is not relieved of liability simply because one of the injuries may also extend into the body as a whole. However, the claim against the Fund was denied because claimant failed to show that the combined effect of both industrial disabilities from the first and second injuries was greater than the sum of the industrial disabilities from each injury. In other words, the Fund's liability was apportioned out under the recent supreme court decision in Second Injury Fund v. Braden, Filed July 18, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DANNY ALAN FIELDS, : : Claimant, : : vs. : File No. 883516 : UNIVERSITY OF IOWA HOSPITALS : C O M M U T A T I O N AND CLINICS, : : D E C I S I O N Employer, : : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding wherein Danny Alan Fields seeks to commute the remaining balance of the permanent partial disability award previously made in this case as a result of an Arbitration Decision filed May 31, 1990, in which he was found to have a 45 percent permanent partial disability. Fields seeks a partial commutation of all but the last week of the permanent partial disability compensation benefits which become payable in the future. The principal issue for determination is whether the requested commutation would be in Fields' best interest. The case was heard at Des Moines, Iowa, on January 14, 1992. The record in the proceeding consists of claimant's exhibits 1 through 7. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Danny Alan Fields is a 40-year-old married man who lives at Swisher, Iowa, and is employed at the University of Iowa in Iowa City, Iowa. His petition for a partial commutation was filed in March 1991 at which time there were approximately 154 weeks of unpaid future benefits. At the present time, there are 99 weeks of future unpaid benefits computed as of March 10, 1992. A partial commutation of all but the last of those 99 weeks would result in the first 98 of the remaining 99 weeks being commuted. The factor for 98 weeks is 89.2412. At claimant's weekly benefit rate of $267.74, the commuted value is $23,893.44. This represents Page 2 a discount in the amount of $2,345.08 from the amount of benefits which would be paid over 98 weeks. Fields suffers from a work-related back injury. He has undergone two surgeries and has substantial residual activity restrictions which prohibit him from performing his prior work as a maintenance mechanic for the University of Iowa Hospitals and Clinics. He is now employed as a parking lot attendant by the University of Iowa. He earns substantially less than what he had earned as a maintenance person. Fields has 19 years of seniority with the University of Iowa and is reluctant to seek employment elsewhere in view of the advantages of his seniority and other fringe benefits. His reluctance certainly seems reasonable. Claimant has accumulated a number of bills and significant recurring monthly payments. The bills are as follows: Nature of Debt Balance Monthly Payment Mastercard $ 3,518.00 $ 59.00 Sears 1,454.00 100.00 (est.) Wards 1,721.00 112.00 GMAC 6,835.00 177.37 Kirkwood College 210.00 Kiracofe Oil Co. 236.00 Total $13,973.00 $ 448.37 The award in this case provides Fields with weekly benefits in the amount of $267.74. This provides a monthly benefit of $1,159.31. Claimant pays one-third of the monthly benefit to his attorney. This leaves him a net amount of $772.87 per month from his workers' compensation recovery. In the event the partial commutation is granted, one-third of that amount will be payable as attorney fees, namely $7,964.48. This would leave Fields with a net lump sum of $15,928.96. After paying attorney fees and the debts which he seeks to extinguish, Fields would be left with approximately $1,956.00 if 98 weeks are commuted. Fields lives in a home which he is purchasing on contract with a contract interest rate of 10 percent per annum. The home is in need of substantial repairs in order to maintain its status of habitability. Fields hopes to extinguish his debts with the funds from the commutation and refinance the home in some method which will provide him with funds to perform the needed repairs in the event that the remaining amount of the commuted funds is insufficient to pay for the repairs, a situation which seems quite likely. Fields hopes to obtain a lower interest rate in the refinancing process. The extinguishment of his other debts will enhance his ability to refinance the home. If Fields were to pay his existing debts in their normal course, it would require several years for him to extinguish them, a Page 3 period of time which would extend far beyond the approximate two years for which he will continue to receive workers' compensation benefits if a commutation is not granted. Under those circumstances, in two years, he would have less income but higher monthly payments than what the situation would be if a commutation is granted. The plan which Fields has developed appears reasonable. While it appears that he may have been somewhat guilty of overspending and abuse of credit in the past, his current plan to extinguish all his short-term debt so that his only outstanding debt is his home contract--mortgage if refinancing is accomplished--certainly seems much more beneficial to him than the alternative of applying his periodic workers' compensation benefits to his short-term debts since the short-term debts extend beyond the period of his weekly benefits. If a commutation is not granted, his outstanding debts may render him ineligible for refinancing his home, depending upon what income to debt ratio standards are applied by the lender. If he is debt-free, he will be in the best possible position for refinancing. It is found that it is in the best interest of Danny Alan Fields to grant the partial commutation as requested of all but the last week of his permanent partial disability award. When making the computations contained in this decision, it is assumed that the defendants have paid all weekly benefits in a timely fashion as required by law and that the amount of the claimant's debts are as represented at the time of hearing. conclusions of law The legal standard for a commutation was initially stated in Diamond v. Parsons Co., 356 Iowa 915, 129 N.W.2d 608 (1964). The four factors to be determined are as follows: 1. The worker's age, education, mental and physical condition, and actual life expectancy (as contrasted with information provided by actuarial tables). 2. The worker's family circumstances, living arrangements, and responsibilities to dependents. 3. The worker's financial condition, including all sources of income, debts and living expenses. 4. The reasonableness of the worker's plan for investing the lump sum proceeds and the worker's ability to manage invested funds or arrange for management by others (for example, by a trustee or conservator). Those same factors were more recently approved in the case Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 (Iowa 1983). The commissioner is not to act as an unyielding Page 4 conservator of the claimant's property. The test is a simple best interest balancing test which compares only the status following commutation with the situation that would exist if there were no commutation. When considering all the four stated factors, there appears to be nothing in regard to the age, education, mental and physical condition, and actual life expectancy of Fields which would weigh against granting the commutation requested. There likewise appears nothing concerning his family circumstances, living arrangements and responsibilities to dependents which would be adversely affected by granting the commutation requested. Fields' plan to extinguish his short-term debt certainly appears reasonable. The small amount of remaining funds after the debts were extinguished would be available to pay closing costs which would be involved with refinancing the home or to pay for some of the repairs to the claimant's home. A precise plan for each and every dollar is not required. It does appear to be in claimant's best interest to enable him to extinguish his short-term debt, even if his plan to refinance his home were not accomplished. As previously noted, if the debt is not extinguished, he will soon be facing a situation of less income than he presently enjoys, yet with the same or similar monthly expenditures for short-term debt. That alternative is certainly contrary to the claimant's best interests. Preserving the last week will preserve the claimant's right to future medical benefits and review-reopening. It is therefore concluded that the requested partial commutation should be granted, namely commutation of 98 of the 99 remaining weeks computed as of March 10, 1992. Page 5 order IT IS THEREFORE ORDERED that Danny Alan Fields is granted a partial commutation of the first ninety-eight (98) of the remaining ninety-nine (99) weeks of permanent partial disability benefits which are currently payable to him as a result of the arbitration decision entered May 31, 1990, and the subsequent Stipulation and Agreement for Settlement filed October 23, 1990. IT IS FURTHER ORDERED that defendants pay Danny Alan Fields the sum of twenty-three thousand eight hundred ninety-three and 44/100 dollars ($23,893.44) on March 10, 1992, representing the first ninety-eight (98) weeks of the remaining ninety-nine (99) weeks of benefits which are to become payable to Danny Alan Fields in the future. Defendants shall also immediately pay any past due, accrued weekly benefits, if any such past due, accrued amounts are unpaid. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. J. Nicholas Russo Attorney at Law 615 Iowa State Bank Building Iowa City, Iowa 52240 Mr. James F. Christenson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANNY ALAN FIELDS, Claimant, File No. 883516 vs. A R B I T R A T I O N UNIVERSITY OF IOWA HOSPITALS, D E C I S I O N AND CLINICS, Employer, F I L E D STATE OF IOWA, MAY 31 1990 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration wherein Danny Alan Fields seeks compensation for healing period benefits, permanent partial disability benefits, payment of medical expenses and a limitation of credit for any disability insurance benefits paid under a group policy based upon an alleged back injury of March 2, 1988. The case was heard in Cedar Rapids, Iowa, on May 14, 1990. The record in the proceeding consisted of the testimony of the claimant, Danny Alan Fields, claimant's wife, Michael Stark, Mike Whitehead, Virgil Fountain, and Juergen W. Knoop. The record also contains Joint Exhibits 1 through 20. ISSUES The issues for resolution are: 1. Whether claimant's March 2, 1988 injury arose out of and in the course of his employment; 2. Whether claimant's alleged condition and disability is causally connected to his March 2, 1988 injury; 3. The nature and extent of claimant's disability; 4. Claimant's entitlement to 85.27 benefits based on their causal connection; 5. The extent, if any, of defendants' entitlement to credit under Iowa Code section 85.38(2); and 6. Whether the credit under 85.38(2), if liability is found, should be based on net amount of disability payments after deduction of federal, state and social security taxes and attorney fees on the gross amount. FINDINGS OF FACT The undersigned deputy having heard the testimony and considered all the evidence, finds that claimant is a 38-year-old high school graduate who began working for defendant employer at age 22 in October 1973. Claimant started as an apprentice working as a preventative maintenance worker in the heating, ventilation and air conditioning department. Claimant became a journeyman in the early 1980's. The maintenance work involved 25 percent heavy duty work and the rest light to medium work. Claimant mainly acquired his education and experience in this type work by on-the-job experience. Claimant did take a course involving his work at Kirkwood Community College. Claimant's work history prior to beginning work for defendant employer involved mainly odd labor jobs, golf course mowing and playing in a band. Claimant played in a band up to and around October 1988. Claimant sought chiropractic treatment from a Dr. McDaniel as early as the mid-1980's for general muscle aches and for manipulative adjustment and occasional low back pain. Claimant indicated he went more than he would have because Blue Cross-Blue Shield was paying the bills. Claimant sought medical treatment from a Dr. Barnes prior to March 2, 1988 due to anxiety and panic attacks. Claimant was admonished on one or more occasions in 1985 and 1986 for filing incident reports. Defendants acknowledge this but contend these were for equipment problems and did not involve injury reports. Claimant did not distinguish between the two but left the impression that his supervisor was referring to and including injury reporting. The only time an incident or accident report is in evidence is reflected in Joint Exhibit 19, pages 28 and 42-53. These reports contain notations of injuries claimant suffered at work on the respective occasions. The exhibit is indicated as an "Unusual Incident, Medicine Error & Accident Report. There is no other type of report in evidence which indicates an equipment problem or accident would be reported on a different separate form as inferred from Mr. Juergen Knoop's testimony. The exhibit forms referred to above are obviously multipurpose, suitable for personal injury incidences, accidents or equipment problems as evidenced by the categories "Other," "Lost, Damaged or Stolen Property," and under the category "IV/Errors", "Equip. Malfunction." These latter items obviously had nothing to do with claimant's injury, but were on the same reporting form. Defendants' witness, Mr. Knoop, is obviously misleading the undersigned on this point. Claimant never acknowledged that he was filing superfluous or unnecessary reports. In fact it is evident he thought he was following the company rules. Claimant had not seen a neurologist or orthopedic surgeon for any medical care prior to March 2, 1988. Claimant contends he was injured at work on March 2, 1988 while using two pipe wrenches to take apart a steam trap and claimant slipped and sprained his back when the pipe union suddenly came loose and gave way. Claimant knew he was to report injuries within two days of the incident but because of the prior warnings by his supervisor, Mr. Knoop, as to filing several unnecessary reports, claimant did not report this incident until approximately 88 days later, in other words, March 31, 1988. Claimant also did not think his injury was that serious. From past experiences with his work, it wasn't unusual for claimant to have bruises, slight and insignificant pain, and he thought the pain in his low back would go away. Defendants contend claimant waited 88 days to file a report, which delay indicated he was not really injured, that he is a fake and falsified the real situation. Although it is advisable to file a report as soon as possible, the law provides one has 90 days from the date of the occurrence of the injury to give the employee notice. Iowa Code section 85.23 (1987). As in all notice statutes, there is no inference of dishonesty or fraud if one waits near the end of the period to exercise one's statutory rights. Claimant had reason to be cautious about filing the report. Claimant did acknowledge that in all the prior cases of which he reported an injury, he filed a report within a day up to a few days. Claimant continued to work but did seek medical treatment from a Dr. McDaniel, a chiropractor, who advised claimant to continue working. Claimant was not getting better as he thought he should, so in April 1988 he became concerned that he may have a more serious injury than he had thought and was concerned that he hadn't reported the incident in the 48 hour period, as required under company rules. Claimant had reported to his co-employee what had happened but had not given defendants any other notice of injury. Claimant thought he was going to get fired if he filed a report after the two day requirement. Claimant then sought legal counsel. He also sought help from his psychologist, Dr. Gersch, who referred him to Richard F. Neiman, M.D. Dr. Neiman told claimant not to work. Claimant returned to work fifteen days in the summer of 1988 but was unable to work any longer due to his injury. Claimant was referred then to M.C. Mysnyk, M.D., an orthopedic surgeon in the summer of 1988. Claimant testified he played in the band in addition to his regular employment. Two fellow band members, who also were employees of defendant employer, testified that they noticed a problem with claimant's physical condition in March 1988, at which time claimant related to them that he hurt his back at work. Claimant had asked them to carry his equipment into the house in which the three were practicing and rehearsing for an upcoming engagement. Both Stark and Whitehead indicated that this request by claimant was unusual since claimant usually carried his own equipment to wherever they were going to practice and/or play. This particular practice was the weekend of March 5 or 6, 1988, as claimant and these two witnesses were rehearsing for a future engagement. Whitehead recalled a conversation with claimant prior to March 1988 in which claimant related a conversation he had with his supervisor regarding claimant's frequency in reporting incidences. Claimant indicated at that time that he was required to calm down the number of reports. Both Stark and Whitehead were long-time friends of claimant and Whitehead actually worked with claimant in the same department for fifteen years. The state's attorney fiercely attacked the credibility of these two witnesses because he saw and possibly overheard them talking to claimant's attorney during a very short recess prior to these two witnesses testifying. These witnesses were earlier excluded from the courtroom proceedings by claimant's motion to exclude witnesses who were going to testify until they are called to testify. Although it appeared claimant's attorney was the one who subpoenaed these witnesses, it was obvious he had little opportunity to visit with them during a brief break as the state's attorney indicated he interrupted their conversation. The two witnesses made it very clear that whatever they discussed, they were telling the truth then and now when being called to testify under oath. The undersigned finds these two witnesses are credible. Virgil Fountain recalled that claimant told him in March or April 1988 that claimant hurt his back at defendant employer's place of business in the pediatric cardiology department. Mr. Fountain has known claimant since claimant began working for defendant employer and is actually claimant's lead person assigning the various jobs to claimant. Fountain recalled the approximate time claimant had his injury because this witness had a back injury around March or April 1988 and went through surgery himself in May 1988. Fountain acknowledged claimant was reprimanded prior to March 1988 for abusing or misusing sick leave. Claimant's wife supported claimant's reason for holding off reporting his March 2, 1988 injury. She said claimant told her his boss had told him that claimant was filing too many unnecessary reports and claimant was to cool it. She indicated claimant had been put on a six month probation earlier because of taking too much sick leave. Mrs. Fields described how claimant's condition after his March 2, 1988 injury became progressively worse rather than getting better, all of which ultimately resulted in claimant's surgery. Claimant and his wife bought a house in 1986 and began remodeling it in the fall of 1987, when they ran out of money. Claimant has not been able to work on the house since the March 2, 1988 accident. Mrs. Fields related claimant's feelings of being intimidated by Mr. Knoop, who was described as being very demanding. Juergen Knoop, claimant's supervisor, said claimant always filed reports within the 24 hours except for his March 2, 1988 incident. Knoop acknowledged he discussed with claimant his excessive filing of incident reports, but not regarding accident reports. Although Knoop tried to distinguish an incident report which involves equipment or machine breakdown versus an accident report which involves a personal injury, he was not able to explain why the only reports in evidence refer to "Unusual Incident, Medication Error, and Accident Report." (Jt. Ex. 19, pp. 28, 42-52) Mr. Knoop first indicated hesitantly that he observed claimant during March and April 1988 on a daily basis and never saw any indication that claimant injured his back. Later on in his testimony, Mr. Knoop said he didn't follow claimant around or didn't observe his work. It is obvious this witness, at most, only saw claimant coming to and leaving work and did not know or observe how claimant worked during this March to April 1988 period. Dr. Mysnyk performed a right L4-5 diskectomy with partial L4 and L5 right laminectomies on September 9, 1988 (Jt. Ex. 6, p. 6). Claimant went through a work hardening program and slowly progressed and was getting better. In December 1988, claimant and his son cut down a tree. Claimant said his son did most of the work. Claimant acknowledged he had some pain in his back after this tree incident but emphasized he wasn't injured by this incident. Claimant returned to the doctor in December 1988 and after a enhanced MRI, claimant incurred a second surgery on February 1, 1989 (Jt. Ex. 6, p. 17) for a rupture of his same disc. This second surgery was described as "a right-sided L4-L5 laminotomy and excision of recurrent disk." Claimant then went through the Kirkwood Community assessment program at the entry level skill to determine his work goals and abilities. The Iowa Department of Vocational Rehabilitation also helped claimant. Dr. Mysnyk released claimant to work on October 10, 1989 and prescribed certain restrictions. Claimant related certain household tasks and activities he could do prior to the March 2, 1988 injury that he couldn't do now. Claimant said he attempted to seek re-employment at defendant employer but there were no positions that he was able to obtain. Claimant was unable to physically perform the particular job he had on March 2, 1988. Claimant was then eventually hired as a parking lot cashier attendant at a salary of $12,000. Claimant was making $21,000 at the time of his March 2, 1988 injury. Mark C Mysnyk, M.D., an orthopedic surgeon, testified by way of deposition on March 10, 1990 that he had first treated claimant on August 25, 1988 and advised claimant to remain off work pending an outcome of certain procedure. By the time of claimant's examination, claimant had already had a CT scan and L4-5 disc problem diagnosis and a steroid injection on May 10, 1988. After an extensive examination and reviewing claimant's prior medical and the results of claimant's CT scan and MRI, it was apparent claimant had an L4-5 herniated disc. The doctor said he then performed an L4-5 diskectomy on September 9, 1988. The doctor discovered both a free fragment plus a bulging disc. Dr. Mysnyk opined that claimant's March 2, 1988 injury caused claimant's herniated disc (Jt. Ex. 14, pp. 16-17). The doctor noted upon following claimant's progress that claimant was making slow progress with his rehabilitation and had developed some pain in his low back (Jt. Ex. 14, p. 19) Dr. Mysnyk referred to his December 6, 1988 notes which indicated claimant had developed some pain in his low back that was different than the pain he had before his first surgery and that it felt like a muscular pain (Jt. Ex. 14, p. 19). The doctor indicated this was not a new injury but a common occurrence for someone who had undertook an activity of some rigor before they have completed a work hardening program. Claimant had another CT and MRI which confirmed claimant had a recurrent herniated nucleus pulposus at the L4, L5 level (Jt. Ex. 14, p. 23). Dr. Mysnyk opined that claimant's recurring disc herniation was due to the original injury. He said he doesn't know anyone who can explain why that happens shortly after surgery but it happens in 5 to 10 percent of the cases. Claimant's second surgery for a recurrent herniated disc was performed on February 1, 1989. Using the third edition of the AMA Guides, Dr. Mysnyk opined on October 10, 1989 that claimant had a 12 percent impairment to his body as a whole (Jt. Ex. 13, p. 1) and had reached maximum recovery and released claimant to return to work with the previous job restrictions of no lifting more than 20 pounds repetitively or 50 pounds at one time, and no bending or crawling, occasional squatting, and no climbing (Jt. Ex. 12; Dep. Ex. 2) Dr. Mysnyk further concluded claimant probably will always have problems if he tries to.do any heavy lifting such as 50 pounds and that claimant would not be able to return to his former job (Jt. Ex. 14, pp. 32-33). The doctor was cross-examined as to claimant's tree chopping incident. The doctor did not know the extent of claimant's participation, how strenuous it was, or the size of the tree, but the doctor was only told that claimant chopped down a tree. During the hearing itself, there was very little description as to the tree size and how the tree was cut and disposed of. Defendants did not develop this on cross-examination and yet contend this is a big deal and caused claimant's current back problems and second surgery. Defendants further contend claimant should have called in claimant's son, who helped claimant cut down the tree, to support claimant's testimony. It is true claimant has the burden of proof. Unless defendants presume claimant is lying and not credible and presumes the deputy will think likewise, defendants had equal opportunity to investigates the facts and call other witnesses if they thought claimant was lying. Defendants are apparently satisfied that the less detail they develop on this issue, the better the odds will be that claimant is not truthful. It is very obvious from the defendants' position in this case and defendants' argument after the hearing, that they do not believe claimant and their disparaging remarks at the hearing support this. The undersigned believes claimant is credible and accepts the doctor's opinion that claimant's condition and surgeries are causally connected to his March 2, 1988 injury. Claimant's attorney rightfully took exception to defendants' attorney's harsh and piercing attack on claimant's credibility. Such remarks are not evidence and do not make a good defense. It is clear defendants do not believe claimant as they denied liability in this case. That gives no excuse to attack the claimant with the barrage of negative words especially with the record we have. Although Dr. Mysnyk knew claimant was on medication prescribed for his anxiety problems, he emphasized that claimant's stress could not cause claimant's recurrent disc problem but could aggravate the symptoms of a recurrent disc and increase the pain. The undersigned finds any stress problems claimant has were not caused by claimant's March 2, 1988 injury and, also, finds that the stress did not cause or increase any impairment claimant may have resulting from his March 2, 1988 injury. There is considerable evidence of claimant's treatment for control of his panic disorder. Although this can contribute to claimant's overall problems, he was on medication. There is no medical evidence that indicates claimant's anxiety problems have added to his impairment (Jt. Ex. 3). Prior to Dr. Mysnyk's treatment, claimant was diagnosed by Dr. Neiman, a neurologist, pursuant to a CT scan being performed, that claimant has a large bulging disc at L4-5 level (Jt. Ex. 2, p. 17; Jt. Ex. 4, p. 5). X-rays taken later at Mercy Hospital, Iowa City support this diagnosis (Jt. Ex. 4, p. 7). The undersigned finds claimant incurred a work-related low back injury on March 2, 1988 while attempting to take apart with wrenches a steam pipe connection which broke loose causing claimant to slip. Claimant's March 2, 1988 injury arose out of and in the course of his employment. The fact that claimant waited 88 days to report his injury was coincidental with the nature of his injury and the working conditions and atmosphere that existed with his supervisor and defendant employer at the time. The state's contention that the fact claimant waited until two days before the statutory 90 days notice statute ran is unacceptable. The state most likely would have used the same argument if claimant had reported the injury in one-half that time. Claimant's injuries and his two surgeries, September 9, 1988 and February 1, 1989, are causally connected to his work injury on March 2, 1988. Defendants denied liability so the 85.27 medical benefit issue is moot in light of the above finding of causal connection. Dr. Mysnyk, the orthopedic surgeon, opined claimant incurred a 12 percent permanent partial impairment to his body as a whole as a result of claimant's March 2, 1988 injury. This doctor performed claimant's two surgeries. Claimant was off for a considerable period of time, namely, April 28, 1988 up to October 10, 1989 minus fifteen days, due to his March 2, 1988 injury. Dr. Mysnyk said claimant reached maximum healing period on October 10, 1985. The undersigned finds claimant has a 12 percent permanent partial impairment to his body as a whole as a result of his March 2, 1988 injury and this injury caused claimant to have the two surgeries referred to above and incur the healing period set out above. Claimant is not able to return to his former job with defendant employer because of his March 2, 1988 injury and the resulting restrictions imposed upon him by his doctor. Defendants have found claimant a job that does not violate his work restrictions. This job resulted in claimant now earning approximately $9,000 less wages or 42.9 percent of the wages he was earning at the time of his injury. Claimant has gone from an environmental systems mechanic to a parking lot attendant cashier. Defendants argue why claimant has not sought a better job than his current one. Claimant did seek a better job with defendant employer but obviously the work restrictions have not enabled him to work at his former job or jobs that violated his restrictions. The evidence appears claimant inquired about his former job but the employer obviously did not allow him to return to that job and obviously felt claimant's restrictions prevented him from doing that job. Defendant employer is a large employer. Claimant was injured while being employed by defendant employer. The state's attorney's argument criticizing claimant for not looking for a better paying job is without merit under the circumstances of this case. There would be no better place to start as far as defendants' criticism than for the defendant employer to offer claimant a better job which doesn't violate his restrictions, or pay him more income for claimant's current job or the allegedly best job that they have currently found for him. Claimant's injury has put him out of the job market and an area of the industry in which he worked for many years. Claimant's earning capacity has been substantially decreased. Claimant appears to be smart enough to pursue some education and to better himself. He apparently has no choice but to pursue work involving sedentary type desk jobs due to his March 2, 1988 injury. Claimant must support himself and his family and it is easier said than done for him to return to schooling full-time and work 40 hours a week. It appears claimant is going to attempt to pick up a few hours of education a year, but this will take considerable time. What job claimant will qualify for with additional education is speculative and it will obviously not be resolved until a number of years. The state of Iowa has denied liability. It could provide claimant with access to an education more reasonably than others since it controls the well-known educational institutions and is responsible for claimant's injury. There has been no indication this will happen or whether claimant meets the educational entrance requirement. Claimant seems to indicate his schooling will come gradually by attending Kirkwood Community College, which is closer to where he lives. The undersigned will not speculate. It is obvious claimant's present job is a substantial step downward in comparison to his ability and long work history before this injury. Although claimant has seen a chiropractor and has some back pain history, he has been performing his strenuous job which involves some heavy duty work for several years. Taking into consideration all the criteria for determining industrial disability, including but not limited to claimant's age, education, length of healing period, work experience, loss of income, location of the injury, severity of the injury, motivation and functional impairment, the undersigned finds claimant has a 45 percent industrial disability and disability benefits are.to commence beginning October 10, 1989 at the weekly rate of $267.74. The parties agreed that claimant was paid $17,153.88 group disability benefits by the Principal Group pursuant to defendant employer's disability insurance policy obtained for claimant's benefit. This amount covered the period between October 10, 1988 and October 10, 1989. Since these payments are taxable income to the claimant, any credit given to defendants against the workers' compensation benefits are to be the net amount after the allowance for the payment of the federal, state and FICA tax consequences to the claimant by reason of said payments. This agency has supported this position in a prior decision. See Gritton v. Department of Transportation and State of Iowa, File No. 751165, filed December 20, 1989. Claimant contends that the gross amount of long-term disability payments should be further reduced by the attorney fee agreement he has with the claimant, which in this case is based on one-third of those amounts to be covered. It is only reasonable that the state should not benefit by the way of a credit at the expense of claimant paying for the services of his own attorney, thereby resulting in the state benefiting from the claimant's attorney's efforts. Defendants totally denied liability and there would be no credit issue involved had the claimant's attorney not started this litigation. The undersigned therefore finds that the defendants are to be given credit for the $17,153.88 long-term disability benefits after all the federal, state and FICA taxes owed by claimant on said benefits and further reduced by the sum of one-third of $17,153.88 attorney fees. The claimant's attorney has applied for approval of attorney fees. This agency does not approve attorney fee applications unless there is a dispute involving same. There is an additional amount of $6,809.25 paid by the Principal Insurance Group as disability benefits for a period after October 10, 1989. It appears that the Principal Group is not requesting reimbursement of that amount based on the proposition that this was not paid during a healing period and, therefore, is an amount in reference to permanent partial disability benefits for which they are not requesting reimbursement or subrogation rights. Claimants contend that none of this amount should be offset as a credit in any respect. Defendants contend that they should also get credit for this amount. As cited above, Iowa Code section 85.38(2) allows the employer a credit "to or against any compensation payments." (Emphasis added) Section 85.38(2) includes all compensation payments without distinguishing between temporary total disability benefits, healing period benefits, permanent partial disability benefits or permanent total disability benefits. Therefore, it can only be concluded that defendants are entitled to a credit against the compensation payments made to claimant for any long-term disability benefits made to claimant. Simply put, to do otherwise would be to compensate claimant twice for the same injury. This position has been previously ruled upon by this agency in the Gritton case previously cited above. It is therefore found that the defendants shall be given credit for the net amount of $6,809.25 after the same has been reduced by the federal, state and FICA tax consequences of claimant and further reduced by the one-third attorney fees. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 2, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of March 2, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co., (appeal decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W. 2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. Iowa Code section 85.38(2) provides: In the event the disabled employee shall receive any benefits, including medical, surgical or hospital benefits, under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if any rights of recovery existed under this chapter, chapter 85A or chapter 85B, then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments, including medical, surgical or hospital, made or to be made under this chapter, chapter 85A or chapter 85B. Such amounts so credited shall be deducted from the payments made under these chapters. Any nonoccupational plan shall be reimbursed in the amount so deducted. This section shall not apply to payments made under any group plan which would have been payable even though there was an injury under this chapter or an occupational disease under chapter 85A or an occupational hearing loss under chapter 85B. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against them by reason of having received such payments only to the extent of such credit. Claimant's March 2, 1988 back injury which arose out of and in the course of his employment caused claimant to to incur a 45 percent industrial disability, entitling him to 200 weeks of permanent partial disability benefits at the rate of $267.74. Claimant is further entitled to healing period benefits and medical benefits as hereafter ordered. ORDER THEREFORE, it is ordered: That defendants are to pay healing period benefits for the period beginning April 28, 1988 up to October 10, 1989 minus the fifteen (15) days claimant worked in July and August 1988, which totals seventy-four point five seven one (74.571) weeks at the weekly rate of two hundred sixty-seven and 74/100 dollars ($267.74). That defendants pay unto claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the weekly rate of two hundred sixty-seven and 74/100 dollars ($267.74) commencing October 10, 1989. That defendants shall pay all of claimant's medical bills. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have paid through a group disability policy twenty-three thousand nine hundred sixty-three and 13/100 dollars ($23,963.13) disability benefits. The amount of credit as to these payments for which defendants shall be given credit is that amount minus any federal, state and FICA taxes for which claimant would be responsible out of said amount, as provided by law, and further reduced by the sum of one-third of the twenty-three thousand nine hundred sixty-three and 13/100 dollars ($23,963.13), which represents attorney fees. That defendants are to be given further credit for the sum of sixteen thousand nine hundred forty-four and 25/100 dollars ($16,944.25) against the medical bills incurred by claimant. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this 31st day of May, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr J. Nicholas Russo Attorney at Law 615 Iowa State Bank Bldg Iowa City, IA 52240, Mr Robert Wilson Mr Dean A. Lerner Assistant Attorney General Tort Claims Hoover Building Des Moines, IA 50319 3303.20 Filed March 10, 1992 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : DANNY ALAN FIELDS, : : Claimant, : : vs. : File No. 883516 : UNIVERSITY OF IOWA HOSPITALS : C O M M U T A T I O N AND CLINICS, : : D E C I S I O N Employer, : : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 3303.20 Claimant was granted a partial commutation in order to become debt free other than for his home mortgage. It was found to be in the claimant's best interests to extinguish those debts rather than have monthly payments which would remain after the period of time when his workers' compensation permanent partial disability benefits would cease. It would further enhance the claimant's ability to refinance his home at a lower interest rate if he were debt free. 1701; 5-1100; 5-1108.50 5-1802; 1803 Filed May 31, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANNY ALAN FIELDS, Claimant, VS. File No. 883516 UNIVERSITY OF IOWA HOSPITALS, A R B I T R A T I O N AND CLINICS, D E C I S I O N Employer, STATE OF IOWA, Insurance Carrier, Defendants. 5-1100 Found claimant's injury arose out of and in the course of claimant's employment. 5-1108.50 Found claimant's back condition and two ruptured disc surgeries at L4-L5 and 12% permanent partial impairment to his body as a whole are causally connected to his work injury. 1803; 5-1802 Claimant awarded 45% industrial disability and healing period benefits. 1701 Credit given to defendants for group disability insurance benefits under 85.38(2) is the net after deducting federal, state and FICA tax consequence to claimant and after deducting one-third attorney fees on gross amount.