Page 1 before the iowa industrial commissioner ____________________________________________________________ : ALBERT F. SEVERINO, SR., : : File Nos. 884892, 925600, Claimant, : 931354, 931355, : 931356 vs. : : A R B I T R A T I O N CITY OF DES MOINES, IOWA, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This decision concerns five proceedings in arbitration brought by Albert F. Severino Sr., against his employer, the City of Des Moines, Iowa. File number 884892 deals with an alleged injury of May 6, 1988 wherein Severino sustained a heart attack. He seeks compensation for healing period, permanent partial disability and payment of expenses for an independent medical examination under Code section 85.39. The employer disputes that the heart attack is an injury which arose out of and in the course of employment and denies all liability. File number 931354 deals with an injury that occurred on May 11, 1989 when a truck rolled over and Albert injured his left shoulder. The employer admits the occurrence of the injury. Severino seeks compensation for healing period and permanent partial disability. The employer denies any liability for permanent partial disability and asserts that, if any exists, it is a scheduled member disability. It was stipulated in the prehearing report that any permanent partial disability which is awarded is payable commencing May 15, 1989. Claimant has not made a specific allegation of a claim for healing period compensation based upon the May 11, 1989 injury. He apparently claims four-sevenths of a week based upon the stipulated commencement date for permanent partial disability. File numbers 931355, 931356 and 925600 deal with alleged injury dates of August 10, 1989, December 13, 1989 and May 31, 1989, respectively. All three files appear to deal with the conditions of bilateral Dupuytren's contracture, carpal tunnel syndrome and ulnar tunnel syndrome. Claimant seeks compensation for healing period and permanent partial disability. The employer denies that the conditions arose out of the employment. The parties Page 2 stipulated that, in the event of liability, healing period entitlement runs from August 10, 1989 through May 13, 1990 in file number 925600. The healing period for other files is disputed. It was stipulated that the commencement date for permanent partial disability, in the event of an award, is May 14, 1990. The case was heard at Des Moines, Iowa, on June 25, 1991. The evidence consists of claimant's exhibits 1 through 18 (including 9A), defendant's exhibits A through Q and testimony from claimant and Michael Peterson. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Albert F. Severino Sr., is a 56-year-old man who has been employed by the City of Des Moines since 1974. During the first several years of employment, he worked primarily as a street maintenance worker where his duties involved the use of his hands operating pneumatic tools, shovels and hand tools. Ever since 1984, he has worked as a truck driver and used his hands primarily for steering, shifting and pulling levers in the truck (exhibit 18). Prior to commencing employment with the City of Des Moines, Albert worked extensively in the building maintenance and janitorial service industry. He has been affiliated with three different businesses and has supervised as many as 300 employees in those businesses. Albert has also been engaged in the restaurant and bar business. Albert has a history of adult-onset diabetes mellitus. He has had problems with his vocal cords. In early 1983, he was diagnosed as having early Dupuytren's contracture (exhibit A, page 2). On October 16, 1987, he underwent outpatient treadmill tests at Mercy Hospital for chest pain. The test results were normal (exhibit I, pages 17 and 22). Prior to May 6, 1988, Albert was not known to have any cardiac condition other than hypertension. On May 6, 1988, Albert reported to work at his normal time of approximately 7:00 a.m. He worked with a crew which was pouring tar into cracks in asphalt streets and then spreading sand over the tar. Albert's only function was to drive the truck. The truck was equipped with a manual transmission which required that he push in and then release the clutch every time the truck was to move. Whenever he moved the truck, he would pull it ahead a distance of approximately five feet. The frequency of moves was once every three or four minutes. Albert testified that the activity of pushing the clutch, brake and shifting every three of four minutes was strenuous for him. He also testified that the truck emitted a lot of carbon monoxide. Page 3 After working for approximately two hours in the manner described, he began to experience chest pains. He testified at hearing that he had no idea what was going on, thought it was possibly heart burn and kept working for approximately one-half hour. He described pain which worsened and went down his right arm. Eventually, he called the foreman, drove to the yard, was taken to the city office at the armory and was then transported by ambulance to Mercy Hospital. At Mercy Hospital, Albert was diagnosed as having sustained a myocardial infarction. His primary treating cardiologist was Martin R. Aronow, D.O. He was discharged on May 13, 1988 (exhibit I, page 34). It is found that the history found in exhibit I, page 38 which places the onset of Albert's chest pain as when he was in bed is an error. The actual onset is found to have occurred while he was sitting in the truck as he described at hearing. Following release from the hospital, Albert underwent cardiac rehabilitation (exhibit I, pages 117-133). He was released to return to regular work on July 13, 1988 (exhibit C, page 34). Work capacity/treadmill testing performed while hospitalized showed only a mild impairment of Albert's physical work capacity and no significant ST segment change, chest pain or significant arrhythmia (exhibit I, page 43). A subsequent treadmill test performed April 7, 1989, showed Albert to have reached his maximum predicted heart rate without chest pain or arrhythmia (exhibit J, page 2). Dr. Aronow, claimant's primary treating cardiologist, reported that claimant had experienced a very small infarction which produced little damage to his heart. He further stated that Albert's continuing to work after the onset of pain made no difference whatsoever in the outcome of the cardiac event. Dr. Aronow specifically stated that Albert's work did not cause or aggravate his cardiac condition. The doctor further stated that Albert's functional cardiac capacity was no worse after the heart attack than it had been prior to its occurrence (exhibit H, pages 1-4). Albert was evaluated by Paul From, M.D. Dr. From found Albert to be 20-25 percent permanently impaired as a result of his cardiac condition. He went on to state: In final summary, it is my opinion with a reasonable degree of medical certainty that Mr. Severino's employment on May 6, 1988, and his continued exertion following the onset of chest pain aggravated the myocardial infarction he was then having. Thereby, the continued exertion lighted up his pre-existing heart condition and has ultimately resulted in his present disability. Page 4 (Exhibit 5, page 6) Dr. Aronow is a qualified cardiologist and was also Albert's treating physician for the cardiac condition. The assessment of this case which has been made by Dr. Aronow regarding causation and impairment is found to be correct where it differs from that of Dr. From because Dr. Aronow is more familiar with the case, holds the status of a cardiologist and his assessment of impairment is strongly corroborated by the treadmill tests which were performed both prior and subsequent to the heart attack which occurred. It is specifically found that Albert's activity of driving the truck on May 6, 1988 was not unusually strenuous in comparison to Albert's normal employment activities. It is found that the activity of driving the truck in the manner described at hearing provided a level of exertion which is no greater than the exertions of normal, nonemployment life of Albert or any other typical person. It is further found that Albert's work activities on May 6, 1988 were not a substantial factor in producing the myocardial infarction which struck him on that date and did not aggravate or contribute to any disability which resulted from the heart attack. On May 11, 1989, Albert was driving a truck which rolled over. A passenger weighing approximately 300 pounds fell onto Albert and pinned him in the truck for a considerable amount of time. Thereafter, Albert had continuing pain and discomfort affecting his right shoulder. It appears as though Albert did not miss any time from work following that incident. He appears to have worked 80 hours during the pay period running from May 1 through May 14, 1989 and also during the pay period running from May 15 through May 28, 1989 (exhibit L, pages 8 and 12). Following the shoulder injury, Albert received physical therapy from Ina Helweg, R.P.T., (exhibit 7, page 2). At hearing, he complained of continuing pain and discomfort affecting his right shoulder and limitation in his ability to perform some of his work activities such as loading the truck. A note from the Employee Health Clinic dated June 14, 1989 indicates that Albert's right shoulder had a full range of motion with occasional pain which was related to the May 11, 1989 injury (exhibit C, page 49). On September 27, 1989, he complained of his shoulder when seeing orthopaedic specialist Sinesio Misol, M.D., (exhibit A, page 6). The notes indicate that the doctor felt Albert had bursitis in the shoulder and injected the shoulder (exhibit A, page 6). A subsequent note dated October 4, 1989, shows the shoulder to be less painful than it was previously, with good mobility, but with a moderate amount of remaining pain (exhibit A, page 7). Shortly thereafter, Albert's Page 5 orthopaedic care was transferred to Douglas S. Reagan, M.D., and he again made shoulder complaints. On January 23, 1990, in connection with other surgical procedures, Dr. Reagan injected the subacromial bursa and manipulated the shoulder (exhibit B, page 2; exhibit J, pages 11 and 12). Dr. Reagan has rated Albert as having a three percent permanent impairment of his right shoulder (exhibit B, page 7). No particular work activity restrictions appear in the record with regard to the shoulder. It is found that the accident that occurred on May 11, 1989 is a substantial factor in bringing about the bursitis condition afflicting Albert's right shoulder. The three percent impairment rating assigned by Dr. Reagan is found to be correct. Albert's description of the discomfort and limitations of his ability to use his shoulder are found to be credible and correct. It is further found that the physical abnormality in Albert's right shoulder is subacromial bursitis as diagnosed by Drs. Reagan and Misol. Those structures are not part of the arm. They are located proximal to the arm. The source of Albert's loss of ability to use his arm is found to be located in Albert's body, rather than in his arm. Since Albert earns his living through physical activity, the impairment of his shoulder does affect his earning capacity. It limits his ability to perform some occupations. He has not, however, experienced any reduction in earnings as a result of the shoulder injury. He is approaching normal retirement age and appears to have a relatively secure position with the City of Des Moines, though no position of employment can be absolutely secure. It is found that Albert has experienced a five percent reduction of his earning capacity as a result of the May 11, 1989 shoulder injury. The remaining three files, namely 931355, 931356 and 925600, all deal with Albert's hands and elbows. He was diagnosed with early Dupuytren's contracture in 1983, but the condition was not aggressively treated at that time (exhibit A, page 2). On May 31, 1989, when being checked for his right shoulder at the city Employee Health Clinic, Albert also made complaints regarding thick callouses on the palms of both hands which caused discomfort when gripping (exhibit C, page 44). Albert was administered therapy by Ina Helweg, but it did not resolve his symptoms (exhibit D, pages 2-4). Albert was referred to orthopaedic surgeon Sinesio Misol, M.D., who diagnosed bilateral Dupuytren's contracture (exhibit A, page 3). On July 11, 1989, Dr. Misol reported that claimant's condition can be aggravated symptomatically by work, but that work trauma is not the cause of the condition (exhibit A, page 3). In a report dated November 20, 1989, D. Straubinger, D.O., referred to Albert's Dupuytren's contracture as "industrial hand Page 6 syndrome." He stated it is a complex problem which is related to both repetitive trauma and diabetes mellitus (exhibit C, page 61). After Albert's care for his hands was transferred to Dr. Reagan, he was diagnosed as having bilateral carpal tunnel syndrome. On January 23, 1990, Dr. Reagan performed surgery which included right carpal tunnel release, right ulnar tunnel release, excision of a palmar nodule and manipulation and injection of the subacromial bursa of the right shoulder (exhibit J, pages 11 and 12; exhibit B, page 2). Albert then underwent occupational therapy (exhibit I, pages 160-170). On March 6, 1990, Dr. Reagan performed left Dupuytren's contracture release of the long, ring and little fingers, carpal tunnel release and ulnar tunnel release surgery (exhibit J, pages 15 and 16; exhibit B, page 3). After an extended period of recovery, Albert was released to return to work on May 14, 1990 (exhibit B, page 6). Dr. Reagan has rated Albert as having a seven percent permanent impairment of his right wrist and a six percent permanent impairment of his left hand (exhibit B, page 7). The ratings made by Dr. Reagan are found to be correct. In a note dated March 2, 1990, James L. Blessman, M.D., reported that claimant's activities at work were sufficiently aggravating to make the carpal tunnel syndrome a work-related condition, even though there were a considerable number of congenital factors (exhibit C, page 72). In a subsequent report dated April 27, 1990, Dr. Blessman indicated that claimant does have diabetes and that it is probably the primary reason why he needed surgery (exhibit C, page 75). It is found that Dr. Blessman is correct in his assessment that diabetes is the primary reason why the surgery became necessary, but he is also found to be correct in his statement that claimant's work activities aggravated the condition. It is found that Dr. Misol is correct in that Albert's work did not cause the Dupuytren's contracture, but that it did aggravate the symptoms and the condition significantly to require the surgical treatment which was performed. It is found that Albert first experienced disability as a result of his hand disorders on August 10, 1989. It is further found that the carpal tunnel syndrome was present and symptomatic on August 10, 1989, even though it had not yet been diagnosed. The conditions in claimant's hands and wrists were not disabling until he left work for purposes of undergoing surgery on August 10, 1989. conclusions of law In all the claims, Albert Severino has the burden of proving, by a preponderance of the evidence, that the injury he alleges actually occurred and that it arose out of and in the course of employment. The words "arising out of" refer Page 7 to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 (Iowa 1971). In any case, the claimant has the burden of proving, by a preponderance of the evidence, that the injury is a proximate cause of the disability on which the claimant is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 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 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 v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The Supreme Court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. Injuries which result from cumulative trauma are Page 8 compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Aggravation of a preexisting condition is one form of compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). 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. Albert asserts that his heart attack arose out of and in the course of his employment. It is clear that it occurred while he was in the course of his employment since he was driving the employer's truck at the time of onset. The more substantial issue is whether the heart attack arose out of or was proximately caused by the employment. It is apparent that Albert had preexisting coronary artery disease as demonstrated by the blocked artery found by the angiogram. The legal standard for compensability of a heart attack when the heart is previously weakened or diseased has been long established. Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 1974). Compensability is allowed when the evidence shows an instance of unusually strenuous employment exertion or when the employment exertion is greater than the exertions of normal, nonemployment life of the employee or any other person. The standard for comparison with normal, nonemployment life is quite vague. There are those individuals who, in their nonemployment lives, run in marathons, remodel their homes, mow lawns, shovel snow, play tennis and engage in a number of forms of quite substantial exertion. On the other hand, there are those who live in apartments or condominiums and do nothing more strenuous than walk on what is essentially level ground, at a leisurely pace, between the front door of their home and their vehicle, never carrying more than a few pounds of weight at any time. The undersigned is of the opinion that the normal, nonemployment life which is the standard for comparison includes such levels of physical exertion as mowing one's own yard, carrying groceries, shoveling snow, playing golf and performing other activities which provide a moderate level of physical exertion, albeit exertion which is performed at a rate dictated by the Page 9 individual. The activities of steering a vehicle, shifting gears, pushing and releasing a clutch, stepping on a brake pedal and stepping on an accelerator pedal as described by Albert in his testimony concerning his activities of May 6, 1988, are activities which do not provide a level of exertion greater than that of normal, nonemployment life. Those exertions are not greater than the normal exertions of Albert's employment. It is therefore concluded that Albert Severino has failed to prove, by a preponderance of the evidence, that his heart attack of May 6, 1988 arose out of or was proximately caused by his employment with the City of Des Moines, Iowa. Even though a heart attack was not proximately caused by the employment, compensation can be awarded if the employee continues to work and by doing so, aggravates or worsens his cardiac condition. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407, 410 (Iowa 1984). Dr. Aronow has opined that such events did not occur in this case. His assessment of the case having been previously found to be correct prevents Albert from obtaining any recovery under the theory of aggravation by continuing to work. With regard to Albert's shoulder injury, exhibit L fails to show that he missed any time from work, other than perhaps for a doctor's appointment. It does not appear as though he lost any pay as a result of a doctor's appointment since the record shows Albert being paid for 80 hours of work during the two-week pay period which includes the date of injury. It likewise shows 80 hours of work during the following two-week pay period. It is therefore concluded that he is not entitled to recover any compensation for healing period on account of the May 11, 1989 injury to his shoulder. The condition of Albert's shoulder which has been found to be disabling is a chronic subacromial bursitis. Since that structure is not part of the arm and it is the source of the disability, Albert is entitled to have the disability evaluated industrially. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). The fact that the doctor rated the impairment as part of the upper extremity is not controlling since, in the medical sense, the term "upper extremity" is often used to include structures such as the acromion, clavicle and scapula. The term "arm," however, as used in the statute, does not extend proximally beyond the proximal end of the humerus. 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 Page 10 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). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. It has been previously found that the impairment rating made by Dr. Reagan is correct and that Albert's description of his residual complaints and limitations regarding his shoulder is also correct. It has previously been found that Albert has experienced a five percent reduction in his earning capacity as a result of the shoulder injury. It is therefore concluded that Albert Severino has a five percent permanent partial disability under the provisions of Code section 85.34(2)(u). This entitles him to recover 25 weeks of compensation for permanent partial disability payable at the stipulated rate of $263.30 per week commencing May 15, 1989 as stipulated in the prehearing report. File numbers 931355, 931356 and 925600 all deal with problems affecting Albert's hands and upper extremities. Albert was seen at the city clinic on May 31, 1989 and was referred to Ina Helweg, but the record does not show him to have been disabled by the condition of his hands at that point. The record indicates that he continued to work until August 10, 1989 when he was off work for surgery. On December 13, 1989, his carpal tunnel syndrome was initially diagnosed by Dr. Reagan. It is clear that Albert was not Page 11 subjected to any additional trauma after August 10, 1989 and he therefore could not have possibly developed carpal tunnel syndrome or even aggravated the condition through his employment during the period of time intervening between August 10 and December 13, 1989. As indicated by the medical evidence, the problems with Albert's hands, namely the Dupuytren's contracture, carpal tunnel syndrome and ulnar tunnel syndrome, were caused by a number of factors. His diabetes is certainly a primary factor. His work, however, is also determined to have been a proximate cause of those conditions. While his recent years of work were as a truck driver, his earlier years of employment as a street maintenance worker appear to have provided considerable gripping and grasping types of activities. The fact that claimant's diabetes made him somewhat predisposed to developing the conditions which afflicted him is controlling only if those conditions would have arisen absent his work activities. The reference to Dupuytren's contracture as being sometimes referred to as "industrial hand syndrome" and the March 2, 1990 report from Dr. Blessman show the carpal tunnel syndrome and Dupuytren's contracture to be work related. The April 27, 1990 statement from Dr. Blessman does not negate the carpal tunnel syndrome being work related. It simply states that it is a lesser causative factor than Albert's diabetes. The statement from Dr. Misol which indicates that the Dupuytren's contracture does not have its origin in work place trauma is construed to simply mean that the condition is not initially caused by work trauma, but that it can be aggravated by work. That statement, combined with the characterization of the condition as "industrial hand syndrome" is determined to be sufficient to establish Albert's work for the City of Des Moines as a substantial factor and a proximate cause of the need for treatment and the residual disability following surgical treatment of the Dupuytren's contracture condition. Albert's employment with the City of Des Moines, Iowa, is therefore found and concluded to be a proximate cause of the bilateral Dupuytren's contracture, carpal tunnel syndrome and ulnar tunnel syndrome which afflicted him, either as a direct cause or as an aggravation of a preexisting condition or preexisting predisposition to develop those conditions. The work is likewise determined to have been a proximate cause of the residual disability which afflicts Albert Severino's right and left hands. There is no particular incident which is identified in the record as causing either the Dupuytren's contracture, carpal tunnel syndrome or ulnar tunnel syndrome. The claim is therefore one based upon cumulative trauma. The injury date for injuries based upon cumulative trauma is the date Page 12 that the employee becomes disabled from working as a result of the condition. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). There is but one injury, that being an injury of August 10, 1989. The alleged injury dates of May 31, 1989 and December 13, 1989 are duplicative of the actual legally correct injury date of August 10, 1989. This is a case where the onset of the disability was due to bilateral symptoms. It is not a case where one hand became symptomatic, recovered and then the other became symptomatic. It is therefore a case in which the permanent disability is to be evaluated in accordance with section 85.34(2)(s). The healing period is established by stipulation made in the prehearing report. It commences August 10, 1989 and runs through May 13, 1990, a span of 39 and 4/7 weeks. The permanent partial disability compensation is payable commencing May 14, 1990. The amount of permanent partial disability is established by the impairment ratings made by Dr. Reagan in his August 6, 1990 report. In that report, Dr. Reagan makes reference to a seven percent impairment of the right wrist. The term "wrist" is not one used in the workers' compensation law or in the Guides to the Evaluation of Permanent Impairment issued by the American Medical Association. The doctor also rates claimant as having a three percent impairment of the right shoulder and that the total impairment of the right upper extremity is ten percent. Accordingly, it appears as though the seven percent rating and the three percent rating are ratings of the upper extremity according to the terminology used in the AMA guides. Seven percent of the right upper extremity is equivalent to a four percent impairment of the whole person. The six percent impairment of Albert's left hand is equivalent to a three percent impairment of the whole person. Using the combined values chart, the total impairment is seven percent of the whole person. Albert is therefore entitled to recover 35 weeks of permanent partial disability compensation based upon the August 10, 1989 injury. The rulings in this case will result in Albert receiving permanent partial disability compensation based upon the May 11, 1989 injury at the same time as he is receiving healing period compensation for the August 10, 1989 injury. There is no prohibition against such double payments when they are based upon separate injury dates. It is no different than receiving permanent partial disability compensation after returning to work following an injury. The healing period for the second injury is simply replacement for wages which would have been earned if Albert had not been re-injured. The prehearing report stipulates that the employer is Page 13 entitled to credit for 39 and 5/7 weeks of compensation which had been paid prior to hearing at the weekly rate of $263.30. The stipulation appears to limit the credit only to the alleged May 31, 1989 injury, file number 925600. It has been determined that May 31, 1989 is not actually a date of injury and that the actual date of injury for the condition referred to in file number 925600 is August 10, 1989. Reference to the agency file shows that the dates of disability for which those weekly benefits were paid commence on August 10, 1989. It is therefore concluded that the employer is entitled to credit for those 39 and 5/7 weeks of compensation, even though they were paid in file number 925600 and the actual benefits are awarded in file number 931355 because both files deal with the same injury and are therefore duplicative. An adjustment for the change in rate is required. The stipulated rate from the prehearing report is $263.30. That rate is based upon an injury of May 31, 1989. Since August 10, 1989 has been determined to be the correct date of injury, a new benefit schedule changes the rate to $263.88. order IT IS THEREFORE ORDERED that in file number 931354, the employer pay Albert Severino twenty-five (25) weeks of compensation for permanent partial disability payable commencing May 14, 1989 at the stipulated rate of two hundred sixty-three and 30/100 dollars ($263.30) per week. IT IS FURTHER ORDERED that in file number 931355, the employer pay Albert Severino thirty-nine and four-sevenths (39 4/7) weeks of compensation for healing period payable commencing August 10, 1989 at the rate of two hundred sixty-three and 88/100 dollars ($263.88) per week. IT IS FURTHER ORDERED that the employer pay Albert Severino thirty-five (35) weeks of compensation for permanent partial disability in file number 931355 at the stipulated rate of two hundred sixty-three and 88/100 dollars ($263.88) per week payable commencing May 14, 1990. IT IS FURTHER ORDERED that the employer is entitled to credit in the amount of ten thousand four hundred fifty-six and 70/100 dollars ($10,456.70) for the stipulated thirty-nine and five-sevenths (39 5/7) weeks of compensation which were previously paid at the incorrect rate. The remaining approximately sixty (60) weeks which are unpaid are all past due and subject to interest pursuant to section 85.30 of The Code to be computed from the date each weekly payment came due until the date of actual payment. IT IS FURTHER ORDERED that claimant receives nothing under file numbers 884802, 925600 and 931356. IT IS FURTHER ORDERED the costs of each action are assessed against defendant pursuant to rule 343 IAC 4.33. Page 14 IT IS FURTHER ORDERED that defendant shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 6th Street P.O. Box 209 Waukee, Iowa 50263 Mr. Steven C. Lussier Assistant City Attorney City Hall 400 East First Street Des Moines, Iowa 50309-1891 5-1803; 5-2202; 2209 Filed September 30, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ALBERT F. SEVERINO, SR., : : File Nos. 884892, 925600, Claimant, : 931354, 931355, : 931356 vs. : : A R B I T R A T I O N CITY OF DES MOINES, IOWA, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-2202 Driving a city work crew truck held to not be a level of exertion which exceeded normal, nonemployment life or the claimant's usual employment exertions. The heart attack which had its onset while claimant was driving the truck was held not to be work related. Benefits were denied. 5-1803 Fifty-six-year-old claimant, with a three percent impairment rating of the shoulder based upon subacromial bursitis in his shoulder, subjective complaints and limitations, but no actual medical restrictions and no change in job classification or actual earnings, awarded five percent permanent partial disability computed industrially. 2209 Where three injury dates were alleged, all dealing with the same bilateral condition, it was determined that there was but one actual date of injury, namely the date that disability commenced, and that the other two files were duplicative. Benefits paid under one of the duplicative files were applied toward the employer's liability which was assessed in the file which alleged the correct injury date. Claimant awarded healing period and 35 weeks permanent partial disability under section 85.34(2)(s). Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT L. WILKINSON, : : Claimant, : : vs. : : File No. 885129 CEDAR FALLS CONSTRUCTION : COMPANY, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : U. S. F. & G., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Robert L. Wilkinson, claimant, against Cedar Falls Construction Company, Inc., employer, and U. S. F. & G., insurance carrier, as defendants. The hearing was held on January 16, 1991 at Waterloo, Iowa. The case was considered fully submitted at the close of the hearing. The evidence consists of joint exhibits 1-3 and defendants' exhibits A-BB. Claimant objected to defendants' exhibits CC and DD, which reflect wage information which was sought by claimant through formal interrogatories served less than 30 days prior to the hearing. Defendants supplied the information to claimant the day of the hearing, and claimant objects to the untimeliness of receipt of the information. Claimant also objects to the introduction of the information pursuant to Iowa Code section 85.40. The Code section, in relevant part, provides that: The employer shall furnish, upon request of an injured employee or dependent or any legal representative acting for such person, a statement of the earnings, wages, or salary and other matters relating thereto during the year or part of the year that such employee was in the employment of such employer for the year preceding the injury; but not more than one report shall be required on account of any one injury. The undersigned finds that the information provided to claimant through the interrogatory is not the type of information contemplated under Iowa Code section 85.40. Page 2 Therefore, claimant was obligated to make a formal discovery request. Although claimant did so, he served the interrogatory less than 30 days prior to the hearing, and technically, defendants did not have to provide the information to claimant. Defendants did prepare the answer, and the information is received over claimant's objections. The record also consists of testimony from the claimant; Roger Marquardt; Richard Fratze; Darryl Sharp; Arlet Cassaidy; Dorinda Pounds; and, Cecilia O'Brien. The undersigned would be remiss if she did not mention the condition of the exhibits offered by both parties. Defendants' exhibits contained duplicates and triplicates of many of the medical records, reports and other written materials. The exhibits marked as joint exhibits (although claimant referred to them as claimant's exhibits in the brief submitted) were unorganized and were not numbered by page, as required by the prehearing report, paragraph 9. Additionally, the deposition of claimant's primary treating physician was offered and received as evidence. None of the exhibits referred to and used in the deposition were attached to the copy given to the undersigned, which again, made it difficult to develop a logical progression of claimant's medical needs and treatment. And, the copy provided to the undersigned was not copied correctly; most, if not all of the pages on the right side were placed incorrectly in the copy machine, and the wording on the right side of the margin is omitted. Finally, numerous pages are missing from the deposition. The condition of the exhibits not only violated the requirements of the prehearing report, but also made it difficult to present the evidence in an organized and logical manner in this arbitration decision. findings of fact The undersigned deputy, having considered all of the evidence, finds the following facts: At the time of the hearing, claimant was 31 years of age. He is married, and has two children, ages 11 and 9. Claimant completed the eleventh grade in high school, enlisted in the Army, and served for approximately two years. While in the Army, he gained experienced as a track and wheel vehicle mechanic. Claimant's work history involves mostly manual labor-intensive jobs, revolving around construction work and factory work. From 1978 to 1988, claimant worked for approximately 12 employers. Although a complete recitation of claimant's various jobs and employers is not necessary, a few employers, and the specific type of experience claimant gained by working for these employees, is warranted. Several years prior to his employment with defendant, Cedar Falls Construction Co., Inc., (hereinafter called Cedar Falls), claimant worked for a construction company Page 3 called McCarthy Improvement. While working for this company, claimant acquired skills in work construction cement work, specifically learning how to "saw" concrete. In the construction field, this is a skilled position and qualifies claimant for positions for which an ordinary laborer might not qualify. As such, claimant would be able to demand more money than an ordinary laborer. Immediately preceding claimant's employment with defendant Cedar Falls, claimant held a position performing cement work for Shimp Construction Company in Dunkerton, Iowa. He was earning $6.50 an hour. He saw an advertisement in the paper for an experienced saw person, and contacted defendant Cedar Falls. Claimant filled out an application on May 11, 1988 (Defendant Exhibit A, Page 1), and began working for defendant Cedar Falls on May 12, 1988. Claimant was hired at a base rate $6.00 per hour; however, he began working on a federally-funded project in Polk County at a certified pay rate of $9.50 per hour plus $1.30 per hour fringe benefit pay. (Joint Exhibit 3) Claimant states he was to work at least 12 hours per day, 7 days per week for approximately 1 year. At the time, claimant was living in Fairbank, Iowa. The position with defendant Cedar Falls required him to work in Des Moines, and claimant made arrangements to live with his sister in Grinnell, Iowa so that he could accept the position. Claimant was injured on the second day of the job. He was performing his duties, which involved sawing the concrete on the road so that it could be easily removed and prepared for resurfacing. On May 13, 1988, claimant was mixing concrete in a vat. He brought over the water tank, loaded the vats, wrapped up the hose and shut off the water. He started to pour the patch of concrete and encountered problems with the power screed, the device which levels out the cement. Claimant was told by his boss to grab the end of a rope which was attached to the screed. The cement truck was located behind claimant, and as claimant was pulling the rope attached to the power screed, he was hit from behind by the chute which was attached to the cement truck. Claimant felt pain immediately, went back to his saw truck, and finished sawing the patch of concrete he was working on prior to helping with the power screed. Later in the day, as claimant was getting ready to leave work, his boss on the job site asked him if he had been cut by the chute. Claimant responded that he had not been cut but that his back hurt where the chute hit him. As the day progressed, claimant sought treatment from L. LeMasters, PA, at the Fairbank Health Clinic in Fairbank, Iowa. Claimant was sent to the hospital in Oelwein, Iowa where underwent x-rays, and was referred to David Poe, M.D., an orthopedic surgeon. Claimant remained under Dr. Poe's care from May 16, Page 4 1988 through January 27, 1989. (Jt. Ex. 1) Initially, on May 16, 1988, the assessment of claimant's condition was "low back strain with possible nerve entrapment secondary to inflammation." The x-rays results of claimant's lumbosacral sign showed "equivocal bilateral L5 spondylolysis." (Def. Ex. B, P. 3) The records due indicate that claimant began physical therapy on June 1, 1988. Claimant also underwent a C.A.T. scan of the lumbo-sacral spine. (Jt. Ex. 1) However, the results of the CT scan were not made available to the undersigned. Claimant proceeded to receive care at the orthopedic clinic at Mercy Hospital in Oelwein, Iowa. Unfortunately, the earliest clinical consultation report the undersigned can find in the exhibits offered and received, is dated July 18, 1988. (Jt. Ex. 1) On examination, Dr. Poe's notes indicate these findings: The pain in his midline spine has gone from 100 down to 40. He is walking better but still not able to flex or walk comfortably. On exam he has mild spasm, he is able to forward flex with his fingertips 6 inches from the floor. He has negative straight leg raising and a normal neurologic exam. His x-rays in the past have shown bilateral spondylolysis at L5. My recommendation is to continue his therapy and rehab, walking and swimming. He would be fit for light duty only with a weight lifting restriction. He will check with the men at Cedar Falls Construction and see if they would have something lighter for him to do. I do not believe that he would be able to do his old job at the present time. Claimant continued with physical therapy, and apparently had periodic visits with Dr. Poe through July and August of 1988. (Jt. Ex. 1) The clinic consultation report, dated August 29, 1988 provides the following information: This gentlemen is 29 and has had recurrence of all of his low back midline symptoms. When he went back to work his pain went down to 15 and presently he is back up to 100. . . . IMPRESSION: . . . Second diagnosis is bilateral spondylolysis at L5, congenital, with super-imposed soft tissue strain. Specifically his present symptoms seem to be aggravated by his work and repetitive bending, lifting and stooping. I do not believe that he would be able to lift 250 pound barrels or 50 pound bags at the present time. I believe that he should remain home and to do his therapy Williams exercises, walking, swimming and to continue to make efforts to lose weight. It may be that this gentlemen is unable Page 5 to return to his employment and that he might be a candidate for vocational retraining in a job that did not involve such heavy lifting and repetitive bending. I have asked him to return and see me in 2 weeks. Claimant continued with physical therapy, and the first progress notes submitted as evidence are dated October 6, 1988. (Jt. Ex. 1) Clinic consultation records dated October 3, 1988 indicate that claimant suffered an "acute myofascial sprain-strain." It was recommended that he continue rehabilitation and he was again released to work on a light duty status, with no heavy lifting greater than 15 pounds, and medical restrictions of no repetitive bending, lifting, or stooping. (Jt. Ex. 1) The medical records indicate that on October 31, 1988, claimant was diagnosed as having a chronic sprain and L5 spondylolysis. (Jt. Ex. 1 [duplicate copies]) Claimant had been put on a weight loss program, and was encouraged to continue his weight loss and his walking and swimming and fitness exercises, as well as the flexion exercises recommended by the physical therapist. At that point, he was released from Dr. Poe's care and was told to see Dr. Poe "this winter." Claimant was released to return to full duty on December 21, 1988. (Jt. Ex. 1) On January 27, 1989, Dr. Poe reached the following opinion: It is my impression that he has a spondylolysis at L5 with an acute myofascial sprain-strain superimposed and related to his work injury as outlined in all the paperwork. It is my impression that he has a permanent partial impairment in the range of ten to fifteen percent (10-15%) disability as well. Claimant was also evaluated at the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals and Clinics in Iowa City, Iowa. On May 26, 1989, Ted Wernimont, M.S.W., rendered the following opinion: You were scheduled to return to the Department of Orthopaedics on May 24, 1989 for re-evaluation. Apparently you were unable to attend this appointment and we want to reinforce with you at this time that we feel that you are now completely healed for workman's [sic] compensation purposes and that you have a 10% body as a whole impairment rating. .... Therefore, at this time, we feel that you are essentially released to return to full-time Page 6 employment within a 50 pound weight restriction. analysis and conclusions of law The first issue to be resolved is whether claimant is entitled to temporary disability or healing period benefits, or permanent partial or permanent total disability benefits. A review of the evidence presented shows that there is no genuine conflict as to whether claimant has sustained a permanent disability due to the accident on May 12, 1988. Dr. Poe, claimant's treating physician, rendered an opinion with respect to the permanent nature of claimant's disability and gave the claimant a 10-15 percent permanent partial disability rating. Mr. Wernimont, a rehabilitation specialist, gave the claimant a 10 percent permanent partial disability. The defendant insurance company previously paid claimant 50 weeks of permanent partial disability benefits. (Jt. Ex. 3) The real issue in the case revolves around claimant's industrial disability. 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." A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. 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 dis ability 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. Page 7 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 dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). At the time of the injury, claimant was almost 27 years old. He had not graduated from high school at that time, but in 1990, he received his GED. Claimant's medical condition prior to the injury on May 12, 1988 is unremarkable. Although there is some evidence that claimant had a preexisting condition of spondylolysis, no attempt was made to apportion the amount of functional disability attributable to the preexisting condition, and that permanency which would be attributable to the injury at work. Additionally, there is no medical evidence which indicates that claimant's preexisting condition required any type of medical treatment prior to the injury. Immediately after the injury, claimant's medical condition required bed rest; medications; physical therapy; and, a lumbar support corset. Presently, claimant's back condition seems to have stabilized, and the evidence presented does not seem to indicate that he has any continuing problems for which he has sought medical treatment. Claimant sustained an injury to his lower back, and endured a healing period of only two or three months. For the most part, claimant worked in a light duty capacity during that time. He sustained an injury which did not mandate surgical intervention, although he has had a permanent loss of function. As discussed earlier, claimant has work experience in the form of laborer-type positions, although his main interest appears to be in the field of mechanics. He has spoken with several rehabilitation specialists, and has completed courses to gain a vocation in gun smithing. He successfully completed a J.T.P.A. program in order to gain his GED, and has also expressed an interest in wildlife or conservation work. The claimant displayed potential for rehabilitation. On an intellectual, emotional and physical level, claimant appeared to be average. Claimant's earnings prior to and subsequent to the injury range between $5.00/hour to $6.50/hour. His wage of Page 8 $9.50 per hour while working for defendant Cedar Falls appears to be one of the highest paying positions claimant has held during his working years, although the saw position he held with McCarthy Improvements paid more than $9.00 per hour. It is noted that the position he held with McCarthy Improvements is similar, if not exactly the same as the position he held with defendant Cedar Falls. Although there is some evidence in the record which indicates claimant did not work well with the rehabilitation specialist enlisted by the defendants, he did express his desire to return to work on numerous occasions. Again, claimant has been functionally rated at between 10 and 15 percent permanent partial disability as a result of the injury. In addition, medical restrictions have been placed on his activities, and include no lifting than greater than 50 pounds more than 4 times per hour, and limited lifting, bending and stooping. After considering all of the factors listed above, the undersigned finds that claimant has sustained a 20 percent industrial disability. Having found that claimant is entitled to additional permanent partial disability payments, it is also found that he is entitled to healing period benefits and temporary partial disability benefits. Iowa Code section 85.33(2) provides, in pertinent part: "[T]emporarily, partially disabled" means the condition of an employee for whom it is medically indicated that the employee is not capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, but is able to perform other work consistent with the employee's disability. "Temporary partial benefits" means benefits payable, in lieu of temporary total disability and healing period benefits, to an employee because of the employee's temporary partial reduction in earning ability as a result of the employee's temporary partial disability. . . . Between May 12, 1988 (injury date) and December 21, 1988 (full release), claimant returned to work in a light duty status periodically. Neither party offered sufficient evidence to enable the undersigned to clearly identify the specific time periods in which claimant was working, and the time periods claimant was entirely off of work; however, claimant is entitled to temporary partial disability on those days he worked in a light duty status. His rate for temporary partial disability benefits is calculated under Iowa Code section 85.33(4): If an employee is entitled to temporary partial benefits . . . the employer for whom the employee was working at the time of injury shall pay to the Page 9 employee weekly compensation benefits, . . . for and during the period of temporary partial disability. The temporary partial benefit shall be sixty-six and two-thirds percent of the difference between the employee's weekly earnings at the time of injury . . . and the employee's actual gross weekly income from employment during the period of temporary partial disability. Claimant's workers' compensation rate, for purposes of temporary partial disability payments, is determined by the following calculation: Gross weekly wages: $684.00 - Wages earned on light duty: 240.00 444.00 x 66 2/3 = $295.97 Claimant also makes a claim for further healing period benefits for time off of work from December 21, 1988 through May 21, 1989. Claimant argues that the appointment with Dr. Poe on December 20, 1988 was initiated by the employer, and that he was told to ask the doctor for a full release. He claims that the company deliberately misled him so that they could fire him and pay him unemployment instead of workers' compensation because the unemployment benefits cost the company less money. Defendant Cedar Falls counters with the stance that claimant was not singled out to be terminated, but was merely a victim of a seasonal lay-off. The evidence reflects that Dr. Poe's full release was on a "trial basis" only, and he was unsure whether claimant could return to full duty. (Jt. Ex. 1) Although Dr. Poe's deposition was offered and received as an exhibit at lease one critical page is missing from the copy received at the hearing which makes it virtually impossible to obtain a clear understanding of Dr. Poe's recommendations. (The missing pages are unable to even be identified due to the poor condition of the copy given to the deputy.) The undersigned is not persuaded by claimant's assertions, and he is denied healing period benefits for the time off of work from December 21, 1988 to May 21, 1989. The evidence submitted shows that claimant was fully released by Dr. Poe on December 21, 1988. It is true that claimant was off of work during this time, but his status was not that of a recuperating worker. The last issue to be resolved is claimant's workers' compensation rate. Although much time was spent on whether claimant's rate should be based on $9.50 per hour or $6.00 per hour, the Page 10 undersigned finds the issue easily addressed. Iowa Code section 85.36 provides, in pertinent part: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed,... [emphasis added] Under the statute, if an employee has not worked 13 weeks prior to the injury, the rate is based on the earnings of similar employees in similar occupations. Iowa Code section 85.36(7). Evidence presented at the hearing shows that claimant actually earned $9.50/hour as a saw-man for defendant Cedar Falls. He had previously worked as a saw-man for McCarthy Improvements and earned $9.96/hour. (Defendant Ex. A, P. 2) No other evidence was submitted to show what other saw-men earned under these work circumstances. Claimant testified he was to work for defendant Cedar Falls seven days a week, 12 hours per day. (Tr. Pages 95-96) Defendants claim the job required him to work five to six days a week for 12 hours. (Tr. P. 187) The undersigned finds that claimant's rate should be based on $9.50/hour, 12 hours a day, six days a week, for gross weekly earnings of $684.00. Therefore, claimant's workers' compensation rate is $420.33, based on his marital status and exemptions. order THEREFORE, it is ordered: That claimant is awarded temporary partial disability benefits during the days he worked on light duty between May 12, 1988 and December 21, 1988; That claimant's rate for the purpose of temporary partial disability is $295.97; That claimant is awarded healing period benefits for those days he was completely off of work between May 12, 1988 and December 21, 1988; That claimant is awarded permanent partial disability benefits for one hundred (100) weeks; beginning December 21, 1988; That claimant's workers' compensation rate for the healing period and permanent partial benefits is four hundred twenty and 33/100 dollars ($420.33); Page 11 That defendants shall pay accrued benefits in a lump sum, and are entitled to credit against the award for weekly benefits previously paid; That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30 That defendants and claimant shall each pay one-half of the entire costs incurred; That defendants shall file an activity report upon payment of this award as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Michael M Pedersen Attorney at Law PO Box 2158 501 Sycamore St Ste 710 Page 12 Waterloo Iowa 50704 Mr David R Mason Mr Mark W Fransdal Attorneys at Law 315 Clay St PO Box 627 Cedar Falls Iowa 50613 3003; 1801 Filed April 30, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : ROBERT L. WILKINSON, : : Claimant, : : vs. : : File No. 885129 CEDAR FALLS CONSTRUCTION : COMPANY, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : U. S. F. & G., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 3003 Claimant was hired to work for $6.00/hour. He actually earned $9.50/hour because the construction project which he was assigned was federally funded and required certain skilled positions to be paid at higher wages. Claimant's rate determined by the $9.50/hour wage. 1801 Claimant, 31 years old, GED, laborer positions, sustained a 10-15 percent functional impairment rating, with a not more than 50 pound, 4 times a day lifting restriction. Claimant awarded 20 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT L. WILKINSON, File No. 885129 Claimant, vs. APPROVAL OF CEDAR FALLS CONSTRUCTION COMPANY, INC. SETTLEMENT Employer, UNDER IOWA CODE and SECTION 85.22(1) U. S. F. & G., Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding to obtain the approval of a settlement pursuant to Iowa Code section 85.22(1) and (3) sought by Robert L. Wilkinson, claimant, against Cedar Falls Construction Company, Inc., employer and U. S. F. & G., insurance carrier, defendants, as a result of an injury which occurred on March 3, 1988. A hearing was held in Waterloo, Iowa on April 28, 1992. Claimant was represented by Jay P. Roberts. Defendants' were represented by Mark W. Fransdal. The record consists of the testimony of James P. Moore, insurance adjuster, Robert Wilkinson, claimant, Max Kirk, personal injury attorney, and Michael Pedersen, claimant's attorney, claimant's exhibit 1, and defendants' exhibits F through J. Both attorneys presented a brief description of disputes at the time of the hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent post-hearing briefs. Claimant then filed a supplemental brief. Defendants' filed a supplemental brief and claimant filed a responsive brief. ISSUES The parties requested a determination of approval of a settlement made by claimant with a third party insurance carrier without the consent of defendant employer and defendant insurance carrier and a determination of the amount of credit to which defendants' are entitled against additional amounts of workers' compensation benefits which might be paid by defendants' to claimant after the date of the settlement. FINDINGS OF FACT Claimant was injured on May 3, 1988, when a cement Page 2 truck struck him while he was screeding concrete at a construction site. A first report of injury was filed and a workers' compensation claim was initiated against claimant's employer, Cedar Falls Construction Company, Inc. and its insurance carrier U. S. F. & G. Claimant also filed a personal injury lawsuit on April 20, 1990, against the third party cement truck owned by G. N. A. Concrete which was insured by Cincinnati Insurance Company. A workers' compensation arbitration hearing was held on January 16, 1991. The third party action was scheduled to be tried on February 18, 1991. A few days prior to the trial of the third party action claimant and his spouse settled the third party action for $90,000. A dispute arose between claimant and defendants as to how this settlement was to be allocated between claimant, his spouse and his children. At the time of this hearing on April 28, 1992, claimant contended that the $90,000 third party settlement should be allocated as follows (1) $45,000 to claimant, (2) $37,000 to claimant's spouse and (3) $8,000 to claimant's two children [$4,000 to each child]. Defendant employer and its insurance carrier contended that $75,000 should be allocated to claimant and that $15,000 should be allocated to claimant's spouse and his two children. The defendant employer contended that the $75,000 figure was more realistic and more representative of claimant's interest in the $90,000 settlement and also it would give defendants a much greater credit against their payment of any future workers' compensation benefits after the settlement. Defendants had filed a notice of workers' compensation subrogation lien in the third party lawsuit on approximately December 17, 1990, in the amount of $17,972.40 for various benefits which they had paid at that time (Exhibit G, pages 39 & 40). The settlement with the third party carrier was finalized on February 22, 1991 (Ex. G, pp. 46 & 47). Moore, defendant insurer's claim representative testified that this was the amount of defendant's lien at the time of the settlement with the third party insurance carrier (Transcript page 35). Subsequent to this third party settlement on February 22, 1991, the deputy industrial commissioner awarded claimant additional temporary and permanent disability weekly benefits on April 30, 1991, based on the evidence submitted in the workers' compensation arbitration hearing which was held on January 16, 1991. Defendants' contend that the additional workers' compensation benefits awarded in this decision plus accrued interest total an additional $49,321.05 to which they are entitled, in addition to the $17,972.40. A large portion of this additional amount is due to the fact that defendants' paid claimant benefits at the rate of $167 per week whereas the deputy determined that Page 3 claimant was entitled to weekly benefits of $420 per week. The deputy also awarded substantial temporary and permanent disability benefits that defendants had not previously paid to claimant. At the time of this hearing on April 28, 1992, both parties believed that defendant employer and insurance carrier were entitled to a credit against the proper amount which should be allocated to claimant's portion of the $90,000 recovery against any future workers' compensation benefits which were to be paid by defendants to claimant after the settlement. However, since this hearing on April 28, 1992, the Supreme Court of Iowa determined on May 13, 1992, in Fisher v. Keller Industries, Inc. and R. C.'s Hardware, Inc., 485 N.W.2d 626 as amended on denial of rehearing on June 18, 1992, that Iowa Code section 85.22 provides alternative methods for recouping benefits that an insurer has paid to an injured worker. The court stated that Iowa Code section 85.22(1) applies to the situation where, as here, the claimant brings an action against the third party carrier. Then the employer and its carrier may file a lien in the third party action to be indemnified out of the recovery of damages to the extent of the payments so made, plus interest, less attorney's fees and costs. The court pointed out that the other method of third party recovery available to the employer and it's workers' compensation carrier is subrogation as provided for in Iowa Code section 85.22(2). This section provides that the employer, or the employer's workers' compensation insurer carrier, may bring its own action against the third party defendant, if claimant fails to do so within 90 days after being requested to do so. In this case, as in the Fisher case, the action was brought by claimant against the third party directly and it is therefore an action for indemnity. The court pointed out in Fisher that Iowa Code section 85.22(1) provides that the employer or the employer's insurer which paid the compensation shall be indemnified out of the recovery of damages to the extent of the payment so made, and that it makes no provision for a credit to the employer or workers' compensation insurance carrier against benefits that will be paid in the future. The court pointed out that this is in sharp contrast with Iowa Code section 85.22(2) which provides for subrogation and makes a specific allowance for future workers' compensation benefits. The court then stated, "We see nothing in Chapter 85 directing a credit for the payments not made." Fisher, page 630. The court further stated that the workers' compensation insurance carrier's right to indemnification extends only to the payments it had made at the time claimant secured his recovery under Iowa Code section 85.21(1). Therefore, it is determined that U. S. F. & G., in this case, is entitled only to indemnification for the payments Page 4 made at the time of the settlement in the amount of $17,972.40. Claimant tendered this amount of money minus the prorata share of attorney's fees and costs which resulted in a net payment to U. S. F. & G. of $11,856.83 on February 27, 1991 (Ex. G, p. 62). Therefore, insofar as a credit is concerned, in view of the decision in the Fisher case it is immaterial that defendants did not consent to the settlement. Irrespective of whether the proper allocation to claimant is $75,000 or $45,000 defendants have recouped all that they are entitled to recoup pursuant to the Fisher decision. Furthermore, pursuant to the Fisher decision it is determined that defendants have no claim at this time to the additional $49,321.05 which was ordered to be paid to claimant subsequent to the settlement, which was awarded by the deputy industrial commissioner in the arbitration decision, because the Fisher decision clearly specifies that the right to indemnification extends only to the payments which the workers' compensation insurance carrier had made at the time that the claimant secured his recovery. It might be noted that if the workers' compensation insurance carrier had paid claimant at the rate of $420 per week instead of $167 per week and if the same carrier had paid claimant the temporary and permanent disability benefits that the deputy determined that they owed, then their losses would have been for the most part eliminated by a prompt and more reasonable payment of this claim prior to the settlement. The Fisher case overrules and reverses the agency precedent of allowing a credit against future benefits established in Alexander v. Iowa Public Service, I Iowa Industrial Commissioner Report 3, Declaratory Ruling dated June 25, 1981, which was reaffirmed by Higgins v. Peterson, II Iowa Industrial Commissioner Report 199, Appeal Decision January 29, 1982, and nullifies the description of the agency precedent described in Lawyer and Higgs, Iowa Workers' Compensation, Law and Practice (2nd Ed.) Section 29-1 on page 289. It is determined that the settlement in the amount of $90,000 for claimant's injuries is reasonable (Ex. G, pp. 58 & 59; Transcript pp. 80-100). There is no need to allocate it since defendant employer and insurance carrier have already recovered all of the money to which they are entitled from the third party recovery. It should also be noted that defendants' never did object to the $90,000 settlement. Their only objection was to the allocation of it in order to obtain a bigger credit against future benefits. The Supreme Court has ruled that Iowa Code section 85.22(1) makes no provision for a credit against future benefits. Wherefore, it is determined that the settlement of claimant with the third party carrier in the amount of $90,000 is approved. Defendants' are entitled to be Page 5 indemnified to the extent of the insurer's payment at the time of the settlement in the net amount of $11,856.83. The indemnity payment in this amount is correct and fully discharges claimant's liability to the employer and workers' compensation carrier from the third party settlement. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law these conclusions of law are made. That the settlement in the amount of $90,000 with the third party carrier is approved. Iowa Code section 85.22(3). No allocation of this amount is required or appropriate. That the employer and workers' compensation carrier's indemnity claim at the time of the settlement was $17,972.40 and that after the deduction for a prorata share of attorney's fees and costs that defendant's net entitlement is $11,856.83 (Ex. G, p. 62) and that this amount was paid to and received by defendants prior to hearing (Ex. G, pp. 63 & 65). Fisher 485 N.W.2d 626(Iowa 1992). ORDER THEREFORE, IT IS ORDERED: That no further amounts are owed by claimant to defendants from the third party settlement recovery. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.40 and 86.19(1). Signed and filed this ____ day of October, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jay P. Roberts Attorney at Law 620 Lafayette St. P.O. Box 178 Waterloo, IA 50704 Mr. Mark W. Fransdal Mr. David R. Mason Attorneys at Law 315 Clay Street P.O. Box 627 Page 6 Cedar Falls, IA 50613 1700, 1704, 3400 Filed October 9, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT L. WILKINSON, File No. 885129 Claimant, vs. APPROVAL OF CEDAR FALLS CONSTRUCTION COMPANY, INC. SETTLEMENT Employer, UNDER IOWA CODE and SECTION 85.22(1) U. S. F. & G., Insurance Carrier, Defendants. ___________________________________________________________ 1700, 1704, 3400 Claimant was injured on May 3, 1988. A workers' compensation claim was opened and the workers' compensation carrier paid $17,972.40 in benefits. Claimant filed a third party personal injury claim in the district court on April 20, 1990. Defendant workers' compensation carrier filed a notice of lien for $17,972.40 in the third party action on December 17, 1990. An arbitration proceeding was held on January 16, 1991. The third party action was scheduled for hearing on February 18, 1991, but was settled for $90,000.00 just a few days prior to the trial and the settlement was finalized on February 22, 1991. The deputy industrial commissioner filed a decision on April 30, 1991, which awarded claimant an additional $49,321.05 in temporary and permanent disability benefits and accumulated interest. Claimant did not have the consent of defendants to make the settlement nor did he obtain the approval of the industrial commissioner prior to settlement as required by section 85.22(3). A dispute arose as to whether $45,000 or $75,000 of the $90,000 should be allocated to claimant as distinguished from the consortium claims of his wife and children. The parties all believed that defendants would be entitled to a credit against the payment of future workers' compensation benefits over and above the amounts owed to defendants at the time of the settlement up to the portion allocated to claimant's portion of the third party settlement. Essentially the amount of the credit was in dispute and the amount of the credit depended on the amount of the $90,000 settlement that was allocated to claimant's portion of the settlement. Defendants' never did object to the settlement in the amount of $90,000. This hearing was held on April 28, 1992. This decision relies on the recent Iowa Supreme Court Decision of Fisher v. Keller Industries and R. C.'s Hardware, 485 N.W.2d 626 decided on May 13, 1992, as amended on denial of rehearing on June 18, 1992, and holds that the defendant employer and defendant workers' compensation carrier are only entitled to recover from the third party settlement the amount that they had paid out on the date of the third party settlement to wit, $17,972.40, and that they were not entitled to recover the $49,321.05 ordered to be paid to claimant pursuant to the award of the arbitration deputy on April 30, 1991, after the date of the third party settlement. The Supreme Court stated in the Fisher Case that Iowa Code section 85.22 makes no provision directing a credit for payments not made at the time of the third party recovery. In other words, Iowa Code section 85.22 makes no provision for a credit against future benefits which might be paid by the workers' compensation insurance carrier after a recovery on a third party claim. The Fisher case overrules and reverses the agency precedent of allowing a credit against future benefits established in Alexander v. Iowa Public Service, I Iowa Industrial Commissioner Report 3, Declaratory Ruling dated June 25, 1981, which was reaffirmed by Higgins v. Peterson, II Iowa Industrial Commissioner Report 199, Appeal Decision January 29, 1982, and nullifies the description of the agency precedent described in Lawyer and Higgs, Iowa Workers Compensation. Law and Practice (2nd Ed.) Section 29-1 on page 289. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : WILLIAM WADSWORTH, : : Claimant, : : vs. : : File No. 885130 COPE CONSTRUCTION, : : A P P E A L Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY, : : 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. Defendants state the following issues on appeal: I. Did the deputy industrial commissioner err in ruling that claimant sustained a 20.5% permanent partial impairment of the right leg? II. Did the deputy industrial commissioner err in awarding 45.1 weeks of permanent partial disability benefits? FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed September 24, 1993 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Claimant has been a carpenter for 27 years. On May 16, 1988, he fell 12 feet from scaffolding while on the job landing on his right foot. Claimant suffered an extensive fracture of the foot and ankle requiring three surgeries to insert a pin, remove the pin and remove a nerve ending. Today claimant complains of inability to walk on uneven, muddy terrain and to make twisting movements with his foot. Flexion and extension are not problems but he cannot roll his foot right or left. He also complains of numbness in the ankle and foot. He has been on inflammatory medication for four years. He still is experiencing pain in the ankle and foot today. Page 2 *****The injury is not limited to the foot because the ankle is involved and there was permanent damage to the nural nerve above the foot. This finding is based upon the description of the injury by claimant's treating physician Martin Roach, M.D., an orthopedic surgeon and R. F. Neiman, M.D., a neurologist. *****A rating by Dr. Roach*****referred to a "10% PPD" for the foot and ankle injury which he stated relates to a 4 percent of the body as a whole. There was no rating of permanent impairment to the leg by Dr. Roach.***** Dr. Neiman gave a rating opinion [of 20.5 percent of the leg] to claimant on July 21, 1992. Dr. Roach*****rated claimant's permanent disability on May 18, 1992.***** CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed September 24, 1993 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. I. A permanent partial disability is either scheduled or unscheduled. A scheduled disability is evaluated by the functional loss method. The industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. Delong's Sportswear 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Iowa Code section 85.34(2). Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922). Pursuant to Iowa Code section 85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in those cases where the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). [The medical evidence in the record consists of two medical opinions on whether claimant's impairment from his injury is limited to the foot, or whether it extends to the leg. Dr. Roach, the treating physician, opines that claimant's impairment is limited to the foot and ankle. Dr. Neiman treats claimant's impairment as extending to the leg. Initially, it is noted that pain radiating to another body part does not extend the nature of the disability. Weishaar v. Snap-On Tools, Appeal Decision, June 28, 1991. Claimant's testimony that his pain extends beyond the ankle into the leg and even into the hip is insufficient to carry his burden to show that the impairment from the injury extends beyond the ankle. It Page 3 is also noted that for purposes of workers' compensation in Iowa, an ankle is considered part of the foot. Angerman v. K-Mart Corp., Arbitration Decision, February 20, 1990. Thus, the conflicting medical testimony on whether the impairment from claimant's work injury extends beyond the ankle into the leg must be considered. Dr. Roach was claimant's treating physician. Dr. Roach performed claimant's surgeries, and thus had an opportunity to make an internal examination that Dr. Neiman did not have. Further, Dr. Roach treated claimant in the course of up to 20 visits, over a long period of time. In contrast, Dr. Neiman saw claimant only once. The greater weight will be given to the evidence of Dr. Roach. It is concluded that claimant's impairment from his work injury does not extend beyond the ankle and is an impairment of the foot and not the leg. Claimant is entitled to 10 percent of 150 weeks under Iowa Code section 85.34(2)(n). [In the case sub judice, it was found that claimant suffered a 10 percent permanent loss of use of his foot. Based on such a finding, claimant is entitled to 15 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(n) which is 10 percent of 150 weeks, the maximum allowable weeks of disability for an injury to a foot in that subsection.] Claimant is entitled to an independent evaluation under Iowa Code section 85.39 when the claimant is dissatisfied with a permanent disability rating by an employer retained physician. Therefore, the expense of the evaluation by Dr. Neiman will be awarded. WHEREFORE, the decision of the deputy is affirmed and modified. Page 4 ORDER THEREFORE, it is ordered: That defendants shall pay to claimant fifteen (15) weeks of permanent partial disability benefits at a rate of two hundred twenty-nine and 26/l00 dollars ($229.26) per week from October 24, 1988. That defendants shall pay to claimant the cost of the evaluation by Dr. Neiman. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for the fifteen (15) weeks of benefits previously paid. That defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. That defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of January, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids, Iowa 52404 Mr. John M. Bickel Attorney at Law P O Box 2107 Cedar Rapids, Iowa 52406 5-1803; 1803.1 Filed January 31, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM WADSWORTH, : : Claimant, : : vs. : : File No. 885130 COPE CONSTRUCTION, : : A P P E A L Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803; 1803.1 Claimant's ankle impairment found to be limited to the foot and not extending to the leg. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM WADSWORTH, : : Claimant, : : vs. : : File No. 885130 COPE CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by William Wadsworth, claimant, against Curt Cope Construction, employer, hereinafter referred to as Cope, and United Fire and Casualty, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on May 16, 1988. On June 2, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. On May 16, 1988, claimant received an injury arising out of and in the course of employment with Cope. 2. Claimant is not seeking additional temporary total or healing period benefits in this proceeding. 3. If the injury is found to have caused permanent disability, the type of disability is a scheduled member disability to either the foot or leg. 4. If permanent partial disability benefits are awarded, they shall begin as of October 24, 1988. 5. At the time of injury claimant's gross rate of weekly compensation was $361.00; he was married; and he was entitled to two exemptions. Therefore, claimant's weekly rate of compensation is $229.26, according to the Industrial Page 2 Commissioner's published rate booklet for this injury. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to permanent disability benefits. II. The extent of claimant's entitlement to an independent examination under Iowa Code section 85.39. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed 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 has been a carpenter for 27 years. On May 16, 1988, he fell 12 feet from scaffolding while on the job landing on his right foot. Claimant suffered an extensive fracture of the foot and ankle requiring three surgeries to insert a pin, remove the pin and remove a nerve ending. Today claimant complains of inability to walk on uneven, muddy terrain and to make twisting movements with his foot. Flexion and extension are not problems but he cannot roll his foot right or left. He also complains of numbness in the ankle and foot. He has been on inflammatory medication for four years. He still is experience pain in the ankle and foot today. It is found that claimant suffered an injury to his leg rather than just his foot. The injury is not limited to the foot because the ankle is involved and there was permanent damage to the nural nerve above the foot. This finding is based upon the description of the injury by claimant's treating physician Martin Roach, M.D., an orthopedic surgeon and R. F. Neiman, M.D., a neurologist. It is found that the injury of May 16, 1988 was a cause of a 20.5 percent impairment to the leg. This is based upon the rating of impairment by Dr. Neiman. A rating by Dr. Roach could not be considered because his opinions were vague. He referred to a "10% PPD" for the foot and ankle injury which he stated relates to a 4 percent of the body as a whole. There was no rating of permanent impairment to the leg. Also, Dr. Roach made no reference to use of a rating guide while Dr. Neiman referred to the AMA guidelines. Dr. Neiman gave his rating opinion to claimant on July 21, 1992. Dr. Roach is an physician retained by Cope and he rated claimant's permanent disability on May 18, 1992. Claimant had reason to be dissatisfied with Dr. Roach's Page 3 rating. CONCLUSIONS OF LAW I. A permanent partial disability is either scheduled or unscheduled. A scheduled disability is evaluated by the functional loss method. The industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v Delong's Sportswear 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in those cases where the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case sub judice, it was found that claimant suffered a 20.5 percent permanent loss of use of his leg. Based on such a finding, claimant is entitled to 45.1 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(o) which is 20.5 percent of 220 weeks, the maximum allowable weeks of disability for an injury to a leg in that subsection. Claimant is entitled to an independent evaluation under Iowa Code section 85.39 when the claimant is dissatisfied with a permanent disability rating by an employer retained physician. Therefore, the expense of the evaluation by Dr. Neiman will be awarded. ORDER 1. Defendants shall pay to claimant 45.1 weeks of permanent partial disability benefits at a rate of two hundred twenty-nine and 26/l00 dollars ($229.26) per week from October 24, 1988. 2. Defendants shall pay to claimant the cost of the evaluation by Dr. Neiman. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for the fifteen (15) weeks of benefits previously paid. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant Page 4 to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids, Iowa 52404 Mr. John M. Bickel Attorney at Law P O Box 2107 Cedar Rapids, Iowa 52406 5-1803 Filed September 24, 1993 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM WADSWORTH, Claimant, vs. File No. 885130 COPE CONSTRUCTION, A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE & CASUALTY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case.