Page 1 before the iowa industrial commissioner ____________________________________________________________ : DIANA VANDERPOOL, : : Claimant, : : vs. : : File No. 885396 GLENWOOD STATE HOSPITAL : SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on October 29, 1991, at 10:00 a.m., in Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on May 7, 1988. The record in the proceedings consists of the testimony of claimant, Harold Brammer, and Diane Pine; and claimant's exhibits 10-14; and defendants' exhibit A through I. Defendants filed a motion to exclude claimant's witnesses and exhibits based on claimant's failure to comply with the hearing assignment order. There was no dispute that claimant did not comply with the hearing assignment order. Claimant's contentions were frivolous, one of which was basically that claimant's attorney did not put the required witness and exhibit lists in the mail timely so that they would be picked up by the postman, because the postman did not pick up mail on October 14, 1991, which was Columbus Day. It would have been useless, as far as the claimant's attorney was concerned, to timely deposit the lists in the mailbox when it wouldn't be picked up. If deposited in the mailbox, it is really not material, assuming that it is true, that the post office would not have made a pickup if it was deposited in a post office box. It appears that the post office box that claimant's attorney was referring to is a basket on a secretary's desk from which a mailman picks up the firm's mail when he makes a delivery to the firm of any mail that a postman might have to deliver to the firm. Of course, the basket would not be considered a post office receptacle anyway. The hearing assignment order provided that each party Page 2 requested one and one-half hours to present its case, including any anticipated cross-examination. The parties were repeatedly reminded of the time allotted and the time the parties were using or wasting in various arguments. Due to the claimant's actions of untimely filing of witness and exhibit lists, and the extended arguments regarding the motion of defendants, the submission of the oral evidence itself did not begin until 1:00 p.m. or after, at which time the parties again were warned that they had almost used all their time and they should judge themselves accordingly in pursuing the balance of their testimony. Again, after re peated warnings and extensions of time and additional warnings from the court and court reporter of commitments, the undersigned cut off any further testimony or presentation of evidence at approximately 5:30 p.m., the parties having taken approximately six and one-half hours. Claimant was mainly violating the time requirements and, particularly because of the time claimant took to try to defend claimant's attorney's violation of the hearing assignment order. Defendants' motion was sustained. issues The issues for resolution are: 1. Whether claimant's alleged injury on May 7, 1988, arose out of and in the course of claimant's employment; 2. Whether there is any causal connection as to any temporary or permanent disability as a result of claimant's alleged May 7, 1988 injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits, if any; and, 4. Claimant's entitlement, if any, to 85.27 medical benefits, the particular issue being reasonableness and necessity, causal connection and authorization; findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 50 year old high school graduate who has no other formal education. Claimant had limited employment prior to her beginning work with defendant employer as she was taking care of her children at home. Claimant first worked four months for defendant employer in 1974, then three months in 1977, and again in January 1982, whereby she worked until November 24, 1988, at which time she quit her employment in order to go to Utah with her husband. Claimant said she worked a few months in Salt Lake City, Utah, but could not do the work. She contends she left that employment due to physical and mental problems, namely, stomach and back problems and headaches. Claimant and her husband returned from Salt Lake City four months later in 1989. Claimant reapplied to work for Page 3 defendant employer and was turned down. She said she applied two more times and was turned down. She does not know why. Claimant explained her duties when she worked for defendant employer. These duties involved daily lifting and most of the patients are handicapped. Claimant is now working since January 4, 1991, in a laundromat as an mangle ironer at $4.25 per hour. Claimant described her injury on May 7, 1988, as a result of a fellow worker striking her in the shoulder so hard that claimant claims she went across the room and caught herself before falling but after she hit the table or the back of a chair. She said she had a two inch circumference bruise. Claimant went to work the next day and reported the injury and then went to the doctor. Except for working two hours on May 8 and working May 16, 17 and 18, claimant did not work again until September 1, 1988. Claimant said the doctor released her to go to work on that date. Claimant said she currently has a problem lifting or holding her arm out. She said the pain starts in the middle of her arm and goes into the shoulder and neck and goes down her back. Claimant said she has headaches and stomach problems. She said these are partially caused by her May 7, 1988 injury and that they became more severe after her May 7, 1988 injury. Claimant said her current job at the laundromat requires no lifting. She said that when she worked for defendant employer, she could do her job and lift the patients. She acknowledged she wants to work again for defendant employer and thought she could do the work but not as she did prior to May 7, 1988 (Defendants' Exhibit A). On cross-examination, claimant was referred to defendants' exhibit A, page 6, in which the claimant said she was quitting work because her husband was being transferred from Omaha to Salt Lake City with the Union Pacific Railroad. Claimant's attention was called to her deposition taken August 7, 1991 (Def. Ex. G) in which she testified no prior problems before May 7, 1988, which is the same testimony that she gave at this hearing. Defendants' attorney pointed out several incidents in defendants' exhibit A in which claimant reported incidents in April 1988, March 1988, February 1988, September 1987, November 1986, August 1986, June 1986, January 1986, September 1985, etc. Contrary to what claimant said earlier in her testimony, she now says she doesn't have stomach problems. Claimant denied she was painting her house on a stepladder in July 1988 and she does not remember getting her house ready to sell. Claimant admitted that had she not moved to Salt Lake City, she probably would have continued Page 4 to work for defendant employer. Diane Pine testified she currently is in school at Iowa Wesleyan, but did work with claimant while at defendant employer's. She was present when the incident claimant described resulted in claimant's alleged injury. Ms. Pine was within two feet of the claimant when another staff member, Lou Ann Gordon, smacked claimant's shoulder with an open hand. Ms. Pine said claimant shuffled backwards about one and one-half feet but did not fall nor did not appear to be injured. Claimant did not hit anything but bumped into another staff member. Ms. Pine said that Lou Ann Gordon did the smack as a joke. Everyone seemed to be in shock when this event occurred. Ms. Pine demonstrated the nature of the slap, which appears to be very light and a joking type of slap. Ms. Pine indicated claimant could not have gone across the room as she described because the room is small and there were too many people in it at the time. Harold Brammer testified he has worked with defendant employer for five years. He said he drove by the claimant's house in July 1988 and claimant was standing on a ladder with paint in one hand and a brush in the other. Defendants' exhibit A, page 7, reflects or responds to claimant's request for a six month leave of absence to go to Salt Lake City, Utah. Defendants' exhibit A, page 8, shows claimant's notice to defendant employer that she was relocating to Salt Lake City and therefore was quitting at the end of the day, November 24, 1988. Defendants' exhibit A reflects an April 26, 1988 accident report whereby claimant pulled a muscle while lifting a patient into a wheelchair; a March 1988 accident report whereby claimant pulled muscles in the upper back; and a February 13, 1988 accident report whereby claimant contends the left side of the back, shoulder blade and lower back is hurt. There are several more, namely, June 27, 1988, September 16, 1987, 1986, 1985, etc. Claimant's exhibit 13 is claimant's personnel file in which there appears to be a lot of duplication of items, particularly accident reports. Not only is there duplication within this file, but also in connection with defendants' exhibits. It is undisputed a slapping incident occurred at work on May 7, 1988, with another staff member slapping claimant in the shoulder. It does not appear that this was a hard slap and appears to have been in a friendly, joking way. Although there was no excuse and the fact is one can be hurt by a friendly or unfriendly blow, there is no medical report that causally connects claimant's current complaint to this incident. In 1988 alone, there were three instances prior to May 7, 1988, in which claimant reported an injury (accident report) that affected, in part, similar parts of claimant's body as it relates to claimant's May 7, 1988 Page 5 alleged injury. It appears claimant was released to return to work on May 11, 1988, after her May 7, 1988 incident. The parties agreed claimant was off work May 8, 1988 through August 31, 1988, minus May 16, 17, and 18 and two hours on May 8. It would appear the greater weight of medical evidence would indicate claimant was off due to a May 7, 1988 incident. There is no evidence claimant was permanently injured from the May 7, 1988 incident and no medical evidence shows any permanent impairment or restrictions as a result of any incident that occurred on May 7, 1988. It appears claimant quit work to be able to transfer to Salt Lake City, Utah, with her husband. The undersigned finds that claimant incurred a temporary total disability as a result of a May 7, 1988 work injury, which resulted from a staff member slapping the claimant on her left shoulder or left arm. The undersigned finds that claimant incurred a temporary total disability from May 8, 1988 through August 31, 1988, minus three and one-quarter days. The undersigned further finds that there is no medical evidence and claimant has not carried her burden to show that she has any permanency resulting from a May 7, 1988 work injury. There is an 85.27 issue concerning medical benefits. There is no evidence of any bills, plus there is no evidence if there were any bills that they were a result of claimant's May 7, 1988 injury. Therefore, there is no award to claimant for any medical benefits. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on May 7, 1988, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 7, 1988, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). It is further concluded that: Claimant incurred an injury which arose out of and in the course of her employment on May 7, 1988, as a result of a staff member slapping claimant on the left upper extremity, and that this resulted in claimant being Page 6 temporary totally disabled from May 8, 1988 through August 31, 1988, minus three and one-quarter days at the rate of $231.58, which amounts to a total of 15.857 weeks. Claimant has no permanent impairment or disability as a result of any May 7, 1988 work injury. Claimant is not entitled to payment of any medical bills as there were no medical bills submitted into evidence. order THEREFORE, it is ordered: That defendants shall pay unto claimant temporary total disability benefits at the rate of two hundred thirty-one and 58/100 dollars ($231.58) for a period beginning May 8, 1988 through August 31, 1988, minus three and one-quarters day, which amounts to a total of fifteen point eight five seven (15.857) weeks of benefits. That defendants shall pay accrued weekly benefits in a lump sum and shall receive 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 shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Lyle A Rodenburg Attorney at Law 101 - 101 Park Bldg Council Bluffs IA 51501 Ms Joanne Moeller Mr Dean Lerner Assistant Attorney General Hoover Building Des Moines IA 50319 5-1100; 5-1108 5-1801; 5-2503 Filed December 4, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : DIANA VANDERPOOL, : : Claimant, : : vs. : : File No. 885396 GLENWOOD STATE HOSPITAL : SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100; 5-1108; 5-1801 Claimant awarded 15.857 weeks of temporary total disability after a finding that claimant's injury arose out of and in the course of claimant's employment and that there was a causal connection. 5-1803 No permanent disability found. 5-2503 Claimant not entitled to 85.27 medical benefits. No bills presented. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ KAREN BANGHART, Claimant, vs. File No. 885687 COMMTRON CORPORATION, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 25, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant's permanency began on November 30, 1989, as stipulated by the parties. The designation of November 3, 1989, in the arbitration decision was an error. Defendants shall pay benefits accordingly. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Attorney at Law West Towers Office Complex 1200 35th St., Ste 500 West Des Moines, Iowa 50265 Mr. James C. Huber Attorney at Law 418 6th Ave. 500 Liberty Bldg. Des Moines, Iowa 50309-2421 9999 Filed November 17, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KAREN BANGHART, Claimant, vs. File No. 885687 COMMTRON CORPORATION, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed January 25, 1991, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KAREN BANGHART, Claimant, VS. File No. 885687 COMMTRON CORPORATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Karen Banghart, now known as Karen Walker, as a result of injuries to the body as a whole which allegedly occurred on April 21, 1988. Defendants denied compensability for the injury. The issues for determination are as follows: 1. Arising out of and in the course of employment. 2. Causal connection. a) Healing period. b) Industrial disability. c) Medical benefits. 3. Healing period entitlement. 4. Industrial disability entitlement; and 5. Medical benefits entitlement. This case was heard and fully submitted at Des Moines, Iowa, on November 29, 1990. The record in the proceeding consists of joint exhibits 1 through 6, claimant's exhibits 7 through 10 and defendants' exhibit B. Defendants offered exhibit A as an offer of proof and it was not read nor considered by the undersigned. Letters written by the attorneys were offered and considered. While these exhibits helped define the issues, they were given little weight. BANGHART V. COMMTRON CORP Page 2 FINDINGS OF FACT Having considered all the evidence received the following findings of fact are made: Claimant, Karen Banghart, now known as Karen Walker, was 33 years old at the time of the hearing. Claimant, on April 21, 1988, worked for employer as a graphic artist. In that capacity she was required to perform a moderate amount of repetitive overhead lifting. Claimant had a congenital cervical rib that was aggravated by the repetitive overhead work as a graphic artist. Alexander Matthews, M.D., a thoracic and vascular surgeon opined that claimant's symptoms of both the right and left upper extremities are work related (exhibit 1, page 68). It is found that on April 21, 1988, claimant sustained an injury to the right and left upper extremities arising out of and in the course of employment with employer. Claimant testified that she had no similar symptoms in her upper extremities prior to April 21, 1988. This was refuted by defendants use of exhibit 1 page 72 during cross-examination. This exhibit revealed a history given by claimant of similar episodes. Claimant also testified that she was not satisfied with the tentative diagnosis of carpal tunnel syndrome given by the first two doctors that she saw. Claimant's testimony when considered in connection with the exhibits leads the undersigned to the conclusions that she was aware of the cervical rib problem and had previous symptomology. Because of this, it is also found that claimant is an unreliable historian. Claimant was taken off work by Daniel A. Keat, D.C., on April 25, 1988, due to the work-related injury (ex. 1, p. 75). Claimant returned to work with defendant employer on May 31, 1988 and worked through June 1, 1988. Claimant then left work on a leave of absence starting June 1, 1988. She was officially taken off work by Dr. Keat on June 3, 1988. Claimant was then under continuous medical care from a multitude of specialists resulting in bilateral thoracic outlet syndrome surgery. On March 28, 1989, claimant was released to work by W.C. Keening, Jr., M.D. Defendant employer made available a light duty telemarketing position on April 19, 1989. Claimant sat through one half day of training and then walked off the job alleging it to be too difficult. Claimant testified that her duties on April 19, 1989 consisted of sitting and holding a phone receiver to her head. Claimant stated that she held the receiver with her right hand. Dr. Keening was dismayed at claimant's failure to follow through with this job (ex. 1, p. 37). The employer's offer of the telemarketing position was made in good faith and did not violate claimant's work restrictions. Claimant was not motivated to return to work. Claimant refused to accept suitable work consistent with her restrictions on April 19, 1989. BANGHART V. COMMTRON CORP Page 3 No healing period benefits are allowed after that date, and before surgery. Iowa Code section 85.33(3). Claimant is entitled to healing period benefits starting on April 25, 1988 and continuing through April 18, 1989. Defendants shall receive credit for any salary payments made for work on May 31, 1988 and June 1, 1988. It should be noted that claimant stated at trial that she did not attempt to perform the telemarketing job on April 19, 1989. Instead she merely observed. This is contrary to her statement in exhibit 4, page 146. Claimant then had surgery for her thoracic outlet syndrome on September 6, 1989. She was released to return to work on November 3, 1989 by Scott Neff, D.O. (ex. 1, p. 9). Claimant is also entitled to healing period starting September 6, 1989 through November 3, 1989. The final healing period issue to be decided concerns the allegations of lost time due to depression. Claimant now alleges to be totally disabled due to a major depressive disorder. The exact cause of the depression is in dispute. Dr. Neff opined that the depression is not work related (ex. 1, p. 7). Michael Taylor, M.D., states that there is a causal connection. Dr. Taylor's opinion is rejected notwithstanding his psychiatric expertise. Dr. Neff is more familiar with claimant's overall situation as he was one of the first doctors to see claimant. Dr. Neff's report of December 20, 1989 (ex. 1, p. 7), relates better to the evidence presented at hearing. Furthermore, Dr. Taylor does not explain how the addiction to crank, the physical abuse, alcoholism, attempted suicide and numerous other family problems failed to impact the major depressive disorder. Since Dr. Taylor did not discuss those stress factors, it is assumed that he did not have a complete and accurate history. As of December 20, 1989, defendants are no longer responsible for any of claimant's stress related or psychiatric expenses. Claimant also appeared calm and collected at trial. She held together very well while under vigorous cross-examination. No lost time shall be allowed for the alleged psychiatric condition as claimant has failed to prove by a preponderance of the evidence that the condition is caused by the April 21, 1988 injury. Claimant has also alleged that chemical dependency is related to the work injury. This argument is rejected. Claimant stated that she had an addictive personality and was involved with the wrong crowd. No direct link to the work injury was made. No benefits shall be allowed for the chemical dependency problem as no causal connection exists. Claimant alleged that her attempted suicide was work related. This claim is also rejected. Claimant testified that she attempted suicide as a result of her eviction from the vocational rehabilitation dormitory. Claimant was apparently BANGHART V. COMMTRON CORP Page 4 ejected from the dormitory due to her disruptive behavior and an unexplained situation involving her nephew. None of the precipitating factors of the suicide are directly related to the work injury of April 21, 1988. Therefore, no benefits shall be allowed for that incident. The issue of medical benefits must be addressed. Claimant is entitled to full payment of all medical expenses related to the thoracic outlet syndrome. This includes the hotel and travel expenses for the Colorado trip. Claimant's mother accompanied her on this trip and assisted her during convalescence. No provision under the code allows reimbursement for claimant's mother's expenses. Nor is there any provision for reimbursement of telephone expenses. Defendants are not responsible for those costs. However, the hotel costs are not to be split in half. Claimant is entitled to full reimbursement for a single room rate. Defendants allege authorization as a defense. Defendants denied the date of injury in answer to claimant's petition. Defendants also denied the injury in the prehearing report and order approving the same. Agency precedent states that an employer may not guide the course of treatment while denying that the injury arose out of and in the course of employment. Defendants have failed to prove authorization as a defense due to the denial of liability. Claimant alleges the need for ongoing physical therapy. It is doubtful that claimant will follow through with such a program. Claimant unilaterally elected out of a similar program in January 1989 (ex. 1, p. 67). While claimant is entitled to future medical care for the thoracic outlet syndrome, she has failed to meet her burden of proof in this situation. Claimant's request for physical therapy appears to be related more to the nonwork major depressive disorder than to the work-related thoracic outlet syndrome. The final issue to be resolved concerns industrial disability. Claimant is a 33-year-old female who did not graduate from high school, but does have a GED. She completed 11 months of a 12-month graphic arts program at Des Moines Area Community College (DMACC). She has a work history strong in the graphic arts field. Claimant has a problem with work absenteeism. Claimant has strong clerical skills. Claimant's work restrictions are best described as no use of the upper extremities at or above shoulder level, no medium or heavy repetitive work. Claimant stated that her left arm is no longer symptomatic while her right arm is still painful. Claimant has a permanent partial impairment of 10 to 24 percent to the body as a whole. Claimant has had difficulty in returning to work due to numerous personal and family problems. Claimant has excellent communication skills. Claimant was earning $8.10 per hour at the BANGHART V. COMMTRON CORP Page 5 time of the injury. Claimant will no longer be able to pursue the graphic arts area due to work restrictions. Claimant is employable as a clerical worker at a range of $5 to $7 per hour. Claimant has sustained a loss of earnings of $1.10 to $3.10 per hour as a result of the thoracic outlet syndrome. Employer made a good faith effort to reemploy claimant. It is found that claimant has incurred a 20 percent industrial disability to the body as a whole. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 21, 1988, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967) Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co.,.158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum, 252 Iowa 613, 106 N.W.2d 591 (1960). 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, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. Claimant has met her burden in proving that the bilateral thoracic outlet syndrome arose of out and in the course of employment with employer. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 21, 1988, is causally related to the disability on which she now bases her claim. Bodish v. Fisher, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, BANGHART V. COMMTRON CORP Page 6 the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has proven the causal connection between her work injury of April 21, 1988 and disability and medical benefits. Claimant failed to meet her burden of proof in establishing that the chemical dependency, attempted suicide and depression are causally related to the work injury. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). If the employer denies the compensability of an injury under the act, it cannot assert that the employee's medical treatment was unauthorized. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial.Commissioner 78, 80 (review decision 1975). Claimant has proven entitlement to medical benefits as outlined in the findings of fact. Claimant has failed to prove statutory entitlement to reimbursement for telephone bills and claimant's mother's expenses. Section 85.34(l), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or, (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Company, Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 485 1984. Iowa Code section 85.33(3). If an employee is temporarily, partially disabled and the employer for whom the employee was working at the time of injury offers to the employee suitable work consistent with the employee's disability the employee shall accept the suitable work, and be compensated with temporary partial benefits. If the employee refuses to BANGHART V. COMMTRON CORP Page 7 accept the suitable work the employee shall not be compensated with temporary partial, temporary total, or healing period benefits during the period of the refusal. Iowa Code section 85.33(3) Claimant is entitled to healing period benefits as outlined in the findings of fact. Claimant has failed to prove entitlement to healing period benefits starting on April 19, 1989 and ending on September 5, 1989. 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, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate BANGHART V. COMMTRON CORP Page 8 to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. it therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional 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, 887 (Iowa 1983). Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the termination of the healing period. Iowa Code section 85.34(2)"u" provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks that the disability bears to the body as a whole. The parties stipulated that this injury should be rated industrially if liability is proven. upon considering all the material factors, it is found that the evidence in this case supports an award of 20 percent permanent partial disability as a result of the shoulder injuries which entitles the claimant to recover 100 weeks of benefits under Iowa Code section 85.34(2)"u". ORDER THEREFORE, IT IS ORDERED: That defendants pay claimant fifty-nine and five-sevenths (59 5/7) weeks of compensation for healing period at the rate of two hundred seven and 71/100 dollars ($207.71) per week for the periods April 25, 1988 through April 18, 1989 and September 6, 1989 through November 3, 1989. It is further ordered that defendants pay claimant one hundred (100) weeks of compensation for permanent partial disability at the rate of two hundred seven and 71/100 dollars ($207.71) per week payable commencing November 3, 1989. It is further ordered that defendants pay all Iowa Code section 85.27 medical expenses causally related to the thoracic outlet syndrome as outlined in the findings of fact. BANGHART V. COMMTRON CORP Page 9 It is further ordered that defendants pay claimant interest pursuant to Iowa Code section 85.30 from the date each weekly payment came due until the date of actual payment. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that the costs of this action are assessed against defendants pursuant to Rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to Rule 343 IAC 3.1. Signed and filed this 25th day of January, 1991. MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Channing Dutton Attorney at Law 1200 35th St. STE 500 West Des Moines, Iowa 50265 Mr. James Huber Attorney at Law 418 6th Ave 500 Liberty Bldg Des Moines, Iowa 50309-2421 51100 51803 51802 52500 Filed January 25, 1991 Marlon D. Mormann BEFORE THE IOWA INDUSTRIAL COMMISSIONER KAREN BANGHART, Claimant, VS. File No. 885687 COMMTRON CORPORATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL, Insurance Carrier, Defendants. 51100 Claimant performed repetitive overhead work which caused an injury to her shoulder and body known as thoracic outlet syndrome. 51802 52500 Claimant entitled to healing period and medical care for shoulder injuries. Claimant failed to prove causal connection to psychiatric and drug addiction problems. 51803 Claimant, age 31 with a GED, had bilateral shoulder induries with permanent, no repetitive use of shoulder restrictions who was not motivated to work, entitled to 20 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KRISTI THROGMARTIN (formerly : BRAINARD-THROGMARTIN, and : RICKY THROGMARTIN, Deceased, : : Claimant, : : vs. : : File No. 885869 PRECISION PULLEY, INC., : : R E M A N D Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This matter is on remand from the Iowa District Court for Wapello County. The appeal decision in this matter filed January 29, 1992 adopted the deputy's proposed decision which had found that the claimant was entitled to death benefits as a common-law spouse. On judicial review the district court held that the evidence of a common-law marriage did not meet the legal test set forth in In Re Estate of Pullman, 228 N.W.2d 187 (Iowa 1975) and reversed the award made by the agency. Pursuant to a motion under R.C.P. 179(b), the district court modified its prior order and ordered "that this case shall be and is hereby remanded to the industrial commissioner for further ruling upon the dependency question (sections 85.31(1)"d" and 85.44)." The decision in this matter will be made as required by the district court's order. ISSUE The issue in this matter on remand is whether the claimant is entitled to death benefits pursuant to Iowa Code sections 85.31(1)"d" and 85.44. Page 2 FINDINGS OF FACT The findings of fact of the deputy's proposed decision filed December 13, 1990 which was adopted in the appeal decision filed January 29, 1992 are incorporated herein by reference as if set out in full. CONCLUSIONS OF LAW Iowa Code section 85.31(1)"d" provides for death benefits "[t]o all other dependents as defined in section 85.44 for the duration of the incapacity from earning." Iowa Code section 85.44 provides: In all other cases, a dependent shall be one actually dependent or mentally or physically incapacitated from earning. Such status shall be determined in accordance with the facts as of the date of the injury. In such cases if there is more than one person, the compensation benefit shall be equally divided among them. If there is no one wholly dependent and more than one person partially dependent, the compensation benefit shall be divided among them in the proportion each dependency bears to their aggregate dependency. The district court's ruling in this case has found that claimant is not entitled to benefits as a surviving spouse because it found she was not a common-law spouse. If claimant is entitled to benefits, her entitlement would be as a dependent other than a spouse. It must be decided on remand whether claimant is entitled to benefits under Iowa Code sections 85.31(1)"d" and 85.44. The Iowa Supreme Court has interpreted the statutory language that was the predecessor of the current statutory language. In Baldwin v. Sullivan, 204 N.W. 420, 201 Iowa 955, the court held that while the decedent contributed to the support and supported someone he was living with he was under no legal or moral obligation to support her. "The statute...was to provide for the family of the deceased and those lawfully dependent upon him and not otherwise." Baldwin, supra at 201 Iowa 955, 961. Professor Larson has discussed when dependency in fact can be established. He seems to suggest in discussing cases that there must be some family relationship (e.g. parent, child or sibling) in order for an individual to be an actual dependent. 2 Larson, Workmen's Compensation Law, section 63.00 et seq beginning at 11-109. That treatise also discusses what is characterized as the intentional illicit relationship. In Larson, supra, section 63.43 at 11-182, it is noted that there is probably no majority view on whether a claimant would be entitled to benefits in an intentional illicit relationship. The cases, however, that are favorable to the claimant generally find entitlement to benefits based upon a finding that a common-law marriage existed. The law of the instant case based upon district court's decision is that claimant was not a common-law spouse. Page 3 Based upon Baldwin v. Sullivan, supra, and the discussion in Larson, supra, the better reasoned opinion would be that in order for an individual to be actually dependent under Iowa Code sections 85.31(1)"d" and 85.44, the decedent must be under some legal or moral obligation to support the claimant. The moral obligation would extend only to those individuals who have a family relationship to the decedent (e.g. parent, sibling, step-children). Claimant had no family relationship to decedent. The decedent was under no moral obligation to support claimant. In the instant case there is no evidence that decedent was under a legal obligation to support the claimant. Claimant was not actually dependent upon the decedent at the time of decedent's death within the meaning of Iowa Code section 85.44.. It should be noted that the determination above is consistent with the prior agency decision wherein it was found that claimant, as a common-law spouse, was dependent upon the decedent. The prior determination was made in order to make a determination and award pursuant to Iowa Code section 85.31(1)"a". The determination on remand is whether claimant was actually dependent upon the decedent within the meaning of Iowa Code sections 85.31(1)"d" and 85.44. Under Iowa Code section 85.44 an individual may also be a dependent if "mentally or physically incapacitated from earning." The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). Claimant has the burden of proving that she was "mentally or physically incapacitated" from earning as of the date of decedent's injury. It cannot be found from this record that claimant has met her burden of proving that she was mentally or physically incapacitated from earning as of the date of decedent's injury. Claimant is not entitled to death benefits pursuant to Iowa Code sections 85.31(1)"d" and 85.44. ORDER THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. That defendants shall pay the costs of this matter including transcription of the hearing and shall reimburse claimant for the filing fee if previously paid by claimant. Signed and filed this ____ day of January, 1994. Page 4 --------------------------- BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Lance A. Grotewold Attorney at Law 219 First Avenue E Oskaloosa, Iowa 52577 Mr. Walter F. Johnson Attorney at Law 111 West Second Street P O Box 716 Ottumwa, Iowa 52501 1902 Filed January 24, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KRISTI THROGMARTIN (formerly : BRAINARD-THROGMARTIN, and : RICKY THROGMARTIN, Deceased, : : Claimant, : : vs. : : File No. 885869 PRECISION PULLEY, INC., : : R E M A N D Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1902 On remand from district court it was found that claimant, a live-in girlfriend of decedent, was not an actual dependent for purposes of Iowa Code section 85.31(1)"d" and 85.44. (The district court had ruled that claimant was not a common-law spouse.) The term actual dependent in Iowa Code section 85.44 refers to someone whom the decedent employee has either a legal or moral obligation to support. The moral obligation to support only includes individuals having a family relationship, e.g. parents, siblings, step-child, to the decedent. The decedent was under no legal or moral obligation to support claimant and therefore claimant (who the district court had ruled was not a common-law spouse) was not an actual dependent of decedent. Claimant was not entitled to death benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KRISTI THROGMARTIN, (formerly : BRAINARD-THROGMARTIN), and : RICKY THROGMARTIN, Deceased, : : Claimant, : : File No. 885869 vs. : : D E A T H PRECISION PULLEY, INC., : : B E N E F I T S Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding for death benefits upon claimant's petition filed December 5, 1988. Claimant alleges that she is the widow of Ricky Throgmartin ("Ricky"), who died in an industrial accident on May 26, 1988. She now seeks death benefits under the Iowa Workers' Compensation Act from Ricky's employer, Precision Pulley, Inc., and its insurance carrier, Liberty Mutual Insurance Company. Hearing in this matter was had in Ottumwa, Iowa, on March 29, 1990. The record consists of joint exhibits 1 through 17 and the testimony of the following witnesses: Kristi Throgmartin, Janet Brainard, Delores Throgmartin, David Holmes, James Tangeman, Keith DeGraaf, Krista Harms, John Hamburg, Dennis Brass, James Bracket and Max Wagaman. In addition, official notice was taken of the contents of the legal file. This includes affidavits of: David Holmes, John Hamburg, Keith DeGraaf, Stan Butler, Arlan Van Dusseldorp, Jim Tangeman and Connie Quinby. issues Pursuant to the prehearing report, the parties have stipulated: that Ricky Throgmartin sustained an injury causing death arising out of and in the course of his employment with Precision Pulley, Inc., on May 26, 1988; that no claim is made for disability benefits; that if claimant is found to be Ricky Throgmartin's widow, the appropriate rate of death benefits is $265.16; that medical benefits are not in dispute; that defendants paid no benefits on a voluntary basis prior to hearing. Issues presented for resolution include: whether Page 2 claimant is entitled to death benefits based on an alleged common law marriage to Ricky Throgmartin and whether she was his dependent at the time of death; whether a penalty should be imposed under Iowa Code section 86.13; taxation of costs. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Ricky Throgmartin, who died in an industrial accident on May 26, 1988, met claimant Kristi Throgmartin in March, 1986. They began dating and Kristi began frequently staying with Ricky in about October, 1986. In November, Ricky rented his own apartment (he had previously had a roommate) and in December, 1986, Ricky gave Kristi an engagement ring and they began cohabiting. In July 1987, they rented a home, although only Ricky signed the lease agreement. Kristi, a 1983 high school graduate, was born on October 28, 1964 and was 25 years of age at the time of hearing. Prior to moving in with Ricky, she was wholly supported by her parents. Afterwards, she was wholly supported by Ricky and, up until the time of his death, had never worked outside the home. As of May 26, 1988, Kristi was wholly dependent upon Ricky Throgmartin for her support. When Ricky and Kristi became engaged, they originally wanted to marry immediately, but were dissuaded by Kristi's mother, who wanted a religious ceremony which the family could not at that time afford. From October 1986 on, claimant irregularly used the name Throgmartin, but used Brainard in correspondence because she had not gone through a formal marriage ceremony. From July 1987 onward, Ricky referred to Kristi as his wife (as opposed to "girl friend") and referred to her parents as "Mom and Dad" and, on occasion, publicly as his mother- and father-in-law. Kristi's father cosigned a note for Ricky when the purchased a waterbed and her mother cosigned for Ricky on a car loan after July 1987. From July 1987 until Ricky's death, he and Kristi lived together in every respect as husband and wife, although they planned a ceremonial marriage service for June 25, 1988. During this time, Kristi considered herself to be married to Ricky, and, as shall be seen, Ricky did likewise. Janet Brainard is Kristi's mother. Both Kristi and Ricky held themselves out to her and her husband as being married. Ricky called Janet "Mom" and referred to her as his mother-in-law. He and Kristi stated that they felt they were married and that formal papers did not make the marriage. Ricky told Kristi's father Larry that Kristi was his wife and that he wanted to take care of her. In the same conversation, overheard by Janet, Kristi stated that she did not expect her parents to take care of her, as she and Ricky were married. Delores Throgmartin is Ricky's mother. She testified Page 3 that she considered Kristi to be her daughter-in-law and that although Kristi and Ricky were not married in a formal ceremony they had a relationship "like" that of husband and wife. She noted that her grandchildren call Kristi "aunt" and that her own children consider Kristi to be a sister. However, Delores Throgmartin's actions have not all been consistent with the existence of a marital relationship between Kristi and Ricky. She opened an estate for Ricky and was appointed administrator. The report and inventory denied that Ricky left a surviving spouse (although Delores testified that she did not read the estate papers when she signed them). She told at least one obituary writer that Ricky was unmarried and intended to marry Kristi on June 25. David Holmes is pastor of the United Methodist Church in Oskaloosa, Iowa, where Kristi and Ricky planned their ceremonial wedding. He both testified at hearing and submitted an affidavit. He counseled with Kristi and Ricky on five separate occasions in advance of the planned wedding ceremony, although neither of the principals or their parents were members of his church. He noted that Ricky considered himself married to Kristi and indicated that a formal ceremony was unnecessary except for their wish to include the families in their pronouncement of love and commitment. Rev. Holmes agreed that Ricky and Kristi were married in the eyes of the Lord even though a nonceremonial wedding is apparently contrary to the teachings of his own denomination. In any event, when Kristi asked him immediately after Ricky's death whether he thought they would still be married in Heaven, Rev. Holmes agreed they would be. Although Ricky never wore the wedding ring they had purchased in anticipation of the formal ceremony, he was buried with it on his finger. John Hamburg testified at hearing and also submitted an affidavit. He was Ricky's life-long friend and former roommate and was to be best man at the formal wedding. He noted that beginning in 1986 Ricky began referring to Kristi's parents as Mom and Dad and at some point began routinely and publicly to refer to Kristi as his wife. Only three days before his untimely death, Mr. Hamburg and Ricky had a discussion while being fitted for tuxedoes. Ricky referred to the upcoming wedding ceremony as "nice for other people," but that as to he and Kristi, they had been married for a long time. By contrast, Hamburg noted that Ricky had previously cohabited with another lady whom he later married long before he met Kristi, but never referred to that lady as a "wife" during the time they merely cohabited and, prior to the ceremonial marriage in that case, often commented about the amount of time he had remaining until he was to be married. It is of substantial interest that Hamburg credibly described Ricky as unaware (apparently due to his youth and inexperience) that he could use Kristi's name on various Page 4 legal documents before a formal marriage ceremony. Defendants have pointed out numerous opportunities for Ricky to disclose a marital relationship on legal papers where he did not (and nor did she). For example, Kristi never took legal steps to change her name to Throgmartin prior to Ricky's death (although retaining a maiden name is scarcely uncommon), did not prepare joint income tax returns with Ricky, was not a signatory to Ricky's lease, was not a party on Ricky's savings account, did not intervene in estate proceedings, was not a signatory on Ricky's waterbed and automobile loans, nor a beneficiary of his life insurance, was not a beneficiary of Ricky's health insurance policy, was not listed as a spouse at Precision Pulley and was not listed as a spouse by Ricky on Internal Revenue form W-4. Given the eyewitness testimony of friends and family discussed in this decision, it is found as fact that these lapses on Ricky's part were due to his lack of sophistication as to common law marriages and not because he did not deem himself married to Kristi. James Tangeman testified at hearing and signed an affidavit contained in the legal file. He knew Ricky and Kristi very well on a social basis and believed the relationship Ricky and Kristi shared was that of husband and wife. He noted that Ricky most frequently referred to Kristi by name, but often as "my wife." However, in mid-1987, Kristi was introduced to Tangeman's fiancee as Ricky's "fiancee." Nonetheless, he considered that Kristi and Ricky enjoyed the general reputation of being married. On the other hand, as is also the case with respect to Keith DeGraaf and Max Wagaman, there is a weak showing as to the extent to which these witnesses were aware of any general reputation as opposed to their individual opinions. Keith DeGraaf testified at hearing and also submitted an affidavit. In his affidavit, he indicated that Ricky on occasion referred to Kristi as his wife, but was unable to recall whether this was the case at hearing. DeGraaf was a coworker with Ricky and also played basketball with him. He met Kristi but once. He also indicated that Kristi and Ricky were generally reputed to be married. The legal file contains an affidavit executed by Stan Butler, Ricky's foreman at work and also a social friend of both Ricky and Kristi. In his opinion, Ricky and Kristi lived together as man and wife and Ricky considered his relationship with Kristi as that of husband and wife. Ricky referred to Kristi as his wife, or as his "old lady" on occasion (but not in her presence). Arlan Van Dusseldorp executed an affidavit contained in the legal file. He knew Ricky through work and considered himself to be a good friend for some 3-4 months prior to his death. He knew that Ricky and Kristi lived together in a relationship that Van Dusseldorp considered husband and wife, and noted that Ricky often referred to Kristi as his wife. With respect to general reputation, Van Dusseldorp asserted that several fellow employees were surprised to Page 5 learn that Ricky and Kristi had not been formally wed, as they assumed that a marriage relationship existed. This is the best and most specific evidence as to general reputation contained in the record. Connie Quinby executed an affidavit contained in the file. She and her husband were social friends of Ricky and Kristi, and her husband was a coworker with Ricky. According to her, Ricky most frequently referred to Kristi by name, but also commonly referred to her as his wife. Max Wagaman was a next door neighbor to Ricky and Kristi at the time of Ricky's death. He had a speaking acquaintance relationship with Ricky and on one or two occasions shot baskets with him. He agreed he had no social relationship with Ricky and Kristi and never visited in their home. Shortly before his death, Ricky referred to Kristi as his "girl friend" or "fiancee," and Wagaman believed the general reputation in the neighborhood was that Ricky and Kristi were not known to be husband and wife. Ricky's use of the term "girl friend" or "fiancee" with this speaking acquaintance is inconsistent with a marital relationship, but does not, standing by itself, indicate that Ricky and Kristi did not generally hold themselves out in a public manner as being husband and wife. Based upon the foregoing it is found as fact that as of May 26, 1988, Ricky and Kristi were cohabiting as husband and wife, that each considered himself or herself to be married to the other and publicly held themselves out as husband and wife. It is further found that Kristi was wholly dependent for her support upon her husband at the time of his death. conclusions of law Pursuant to Iowa Code section 85.31, when death results from an industrial accident, as is here the case, the employer shall pay those dependents "who were wholly dependent on the earnings of the employee for support at the time of the injury, during their lifetime" compensation based on the average weekly earnings of the deceased employee. Pursuant to section 85.42, a surviving spouse is conclusively presumed to be wholly dependent upon the deceased employee with two exceptions not relevant here. An unmarried cohabitant does not have the right to death benefits under the Iowa Workers' Compensation Act. Baldwin v. Sullivan, 201 Iowa 955, 204 N.W. 420 (1925). Therefore, Kristi Throgmartin's entitlement to death benefits depends upon whether she has established a common law marriage to Ricky Throgmartin in effect at the time of his death. Common law marriages have long been recognized in the state of Iowa. Laws v. Griep, 332 N.W.2d 339 (Iowa 1983). A valid common law marriage requires proof of the following three elements: (1) intent and agreement to be husband and wife, in praesenti; (2) continuous cohabitation; and, (3) a Page 6 public declaration or holding out that a marital relationship exists. In re Estate of Dallman, 228 N.W.2d 187 (Iowa 1975). There is no public policy in the state of Iowa favoring common law marriage. In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979). A claim of such a marriage is regarded with suspicion and is closely scrutinized. In re Marriage of Grother, 242 N.W.2d 1 (Iowa 1976). The burden of proof is on the party claiming the existence of such a marriage to show all elements by a preponderance of clear, consistent and convincing evidence. In re Estate of Fisher, 176 N.W.2d 801 (Iowa 1970). In the present case, Kristi Throgmartin has established by clear, consistent and convincing evidence that at the time of Ricky Throgmartin's death, he and she had continuously cohabited since 1986, that from at least July, 1987 they both intended and agreed to be husband and wife in praesenti and that both participated in a general and public holding out of themselves as being married. There is contrary evidence in the record, primarily being the testimony of Max Wagaman and the fact that Ricky and Kristi did not execute legal documents indicative of a marital relationship. However, Mr. Wagaman was merely a casual acquaintance and the overwhelming weight of eyewitness testimony from friends, family and coworkers establishes that Ricky and Kristi were married, intended to be married and held themselves out to the public as such. The lack of a "paper trail" is attributable to Ricky and Kristi's youthful lack of sophistication. Accordingly, death benefits shall be awarded Kristi pursuant to Iowa Code section 85.43. Kristi also seeks the imposition of a penalty pursuant to Iowa Code section 86.13. The unnumbered fourth paragraph of that section requires the award of benefits as a penalty where a delay in commencement of benefits occurs "without reasonable or probable cause or excuse." Where a claim is "fairly debatable," defendants are entitled to debate it, whether the debate concerns a matter of fact or law. To show a claim for bad faith (in the tort context), a plaintiff must show the absence of a reasonable basis for denying benefits of a policy and defendants' knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1989). This analysis has been adopted for evaluating 86.13 penalty claims. Dodd v. Oscar Mayer Foods Corp., file number 724378 (Penalty Decn., April 27, 1989). In the case at bar, defendants had a reasonable basis for denying the claim, one which is "fairly debatable." The fact that the parties planned a ceremonial marriage which had not come to pass at the time of Ricky's death coupled with the utter lack of documentary evidence of a common law marriage shows that this claim was fairly debatable. No penalty benefits shall be awarded. order Page 7 THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant Kristi Throgmartin death benefits of two hundred sixty-five and 16/100 dollars ($265.16) per week commencing May 26, 1988 and continuing until terminated pursuant to Iowa Code section 85.31(1)(a). Defendants shall pay to the Treasurer of the State of Iowa for the benefit of the Second Injury Fund the sum of four thousand and 00/100 dollars ($4,000.00) pursuant to Iowa Code section 85.65. All accrued benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Mr. Lance A. Grotewold Attorneys at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. Walter F. Johnson Attorney at Law 111 West Second Street P.O. Box 716 Ottumwa, Iowa 52501 1901; 4000.2 Filed December 13, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : KRISTI THROGMARTIN, (formerly : BRAINARD-THROGMARTIN), and : RICKY THROGMARTIN, Deceased, : : Claimant, : : File No. 885869 vs. : : D E A T H PRECISION PULLEY, INC., : : B E N E F I T S Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1901; 4000.2 Death benefits awarded to spouse who established common law marriage (continuous cohabitation, present intent and agreement, public holding out) through testimony of friends, family, coworkers and a preacher. However, no penalty benefits were awarded under the "fairly debatable" test adopted in Dodd. No legal documents showed marital relationship (the principals were young and inexperienced and believed they could not) and a formal marriage was scheduled at the time of death (primarily for the benefit of the respective families). BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM M BROWN, : : Claimant, : : vs. : : File Nos. 886001 & 991561 HYMAN FREIGHTWAYS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATMENT OF THE CASE This is a proceeding in arbitration brought by William Brown against his employer based upon injuries of May 13, 1988 and May 21, 1990. At the commencement of the hearing it was stipulated that the 1990 injury was a temporary aggravation of the 1988 injury. It was also stipulated that the only claim being made is for permanent partial disability compensation is attributable to the May 13, 1988 injury. There are no unresolved issues in file number 991561. The case was heard at Des Moines, Iowa, on September 8, 1993. The record consists of testimony from witnesses, claimant's exhibits 1 through 13 and defendants' exhibits A through J. FINDINGS OF FACT William M. Brown, Jr., is a 38-year-old man who graduated from high school in 1973. For approximately two years following high school he performed construction, publishing and warehouse work. He then obtained a job driving a truck for American Freight. When American Freight ceased operations he obtained work with Hyman Freightways, Inc. William is an over-the-road driver. Hyman Freightways is a union trucking company and pays union scale wages. In 1992 William earned approximately $50,000. It is more than he was earning at the time of injury due to pay increases negotiated by the union. He will likely earn even more in 1993. William is an over-the-road driver. His work requires extended periods of driving a semi-tractor. It subjects him to a considerable amount of bouncing and jostling about which varies according to the type of tractor he is driving and the surface of the road on which he is Page 2 driving. On May 13, 1988, William was seriously injured when his truck left the road near its terminal. His most significant injuries included fractures in his cervical spine and jaw. He also suffered severe lacerations which required several surgeries by a plastic surgeon. He has undergone cervical fusion surgery which was performed in July 1990. Despite the seriousness of his injuries, William has been released to return to work without any restrictions on his activities being imposed by any physician. He has received ratings of permanent impairment ranging from 7 percent from David J. Boarini, M.D., his treating neurosurgeon (claimant's exhibit 1, page 18), a rating of 21 percent from Thomas W. Bower, L.P.T. (ex. 14, p. 33) and a rating of 24 1/2 percent from Neurologist Richard F. Neiman, M.D. (cl.ex. 3, pp. 2, 3, 5). While none of the physicians have imposed activity restrictions, the records from Therapist Bower show that William has a considerable deficit in his use of his left arm and restricted motion in his neck (ex. 13, deposition ex. 2). The record does not show William's left shoulder to have been worsened by this injury. William continued to work for Hyman Freightways, Inc., as an over-the-road driver. He performs all of the requirements of his job to the satisfaction of his employer. His employment appears relatively stable and secure. There is, however, no guarantee that the employer will continue its operations indefinitely. It is well established by testimony from Wesley McDaniel; Katherine Bennett; Jeffrey Raymond; and even from defendants' vocational consultant, Jack Reynolds; that if William were to lose his job with Hyman Freightways, Inc., it would be very unlikely that he would be able to obtain another union truck driving job which would provide him the same level of earnings as he currently enjoys. As indicated by Reynolds, claimant is presently enjoying the highest possible level of his vocational potential. Claimant's history of injury would likely make it difficult for him to be re-employed as a truck driver. There is some speculation that the Americans with Disabilities Act would provide some assistance in overcoming long-standing industry practices of not hiring individuals who have previously experienced spinal injuries but the legislation is so new that its ultimate impact cannot be accurately predicted. It can reasonably be predicted that there will be a significant number of companies which will attempt to avoid the intent of the act, either through legitimate loopholes or through thinly disguised outright violations. It cannot be known whether Hyman Freightways will continue to operate for a day, a year, a decade, or a century. To attempt any specific prediction based upon the record in this case would be pure speculation. On the other hand, it is well recognized that in today's society most individuals change employers and jobs several times Page 3 throughout their working life. In view of such, it is fair to state that it is probable that William M. Brown will not continue working for Hyman Freightways as a truck driver for the remainder of his working life. As indicated by Jack Reynolds, William's current level of earnings is the top of his vocational potential. In view of the shortage of union truck driver jobs as described by McDaniels, William would have difficulty finding another union truck driver job even if he were uninjured. It does not appear that William's injuries will play any significant factor in determining how long he remains employed as a driver for Hyman Freightways. If his employment with Hyman Freightways, Inc. were to end, it is quite predictable that he would experience a 50 percent, or perhaps even greater, reduction in actual earnings. While the physicians have not imposed any specific activity restrictions upon William, the testing done by Bower clearly shows that he would be unsuited for heavy manual labor type of work. CONCLUSIONS OF LAW 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. Since 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 Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the Page 4 employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. In this case there is a considerable disparity between two of the common indicators. Claimant's physical impairment, which is considerable, would tend to indicate a considerable loss of earning capacity, yet his actual earnings tend to indicate that there is not any loss of earning capacity. When all of the material factors of industrial disability are considered, it is found that the correct analysis lies between those two extremes. It is determined that William M. Brown has a 15 percent permanent partial disability as a result of the May 13, 1988 injury. This entitles him to receive 75 weeks of compensation for permanent partial disability. The stipulation by the parties does not show the amount of permanent partial disability compensation which has been paid for this injury prior to hearing. Defendants have not filed claim activity reports which appear in the agency file. The amount of credit for voluntary payments can therefore not be determined with precision. ORDER THEREFORE IT IS ORDERED that in file number 886001 defendants pay William M. Brown seventy-five (75) weeks of compensation for permanent partial disability at the stipulated rate of four hundred fifty-eight and 18/100 dollars ($458.18) per week payable commencing January 23, 1989. Defendants shall receive credit for the permanent partial disability compensation previously paid on account of this injury. It is further ordered that no further recovery is payable in file number 991461. It is further ordered that defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. It is further ordered that the costs of this action are assessed against defendant pursuant to rule 343 IAC 4.33. Page 5 Signed and filed this ____ day of December, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. R. Ronald Pogge Attorney at Law 2700 Grand Ave STE 111 Des Moines, Iowa 50312 Mr. Cecil Goettsch Attorney at Law 801 Grand Ave STE 3700 Des Moines, Iowa 50309-2727 51803 Filed December 14, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM M BROWN, Claimant, vs. File Nos. 886001 & 991561 HYMAN FREIGHTWAYS, INC., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. ___________________________________________________________ 51803 Over-the-road truck driver, whose earnings had increased since injury due to contract changes, working without restrictions, but with physical defects and permanent impairment from cervical fusion, awarded 15 percent permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARIE TAYLOR, : : Claimant, : : vs. : File No. 886089 : UNIVERSITY OF IOWA, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Marie Taylor against the University of Iowa and the State of Iowa based upon an injury that occurred on or about May 20, 1988. Claimant seeks compensation for permanent disability in connection with that injury. The case was heard at Cedar Rapids, Iowa, on December 19, 1991. The evidence consists of testimony from Marie Taylor, claimant's exhibits 1 through 7 and defendants' exhibit A. With regard to the evidence, it should be noted that what has been marked as joint exhibit 3h was submitted by the employer subsequent to hearing in order to complete the records of the University of Iowa Hospitals and Clinics. At the time of hearing, what was submitted by the claimant was believed to be complete, but apparently it was thereafter subsequently determined to have some omissions. Claimant's exhibit 7 is the claimant's deposition. It is received into evidence pursuant to Code section 86.18(2). What was referred to as defendants' exhibit A at the time of hearing was identified by defense counsel as joint exhibit 3h when it was submitted after the hearing and what was referred to as defendants' exhibit A at the commencement of the hearing is actually in the record as exhibit 3h. There is no defendants' exhibit A. The ruling which received defendants' exhibit A into evidence is modified to reflect the receipt of exhibit 3h. Claimant appeared for hearing approximately two hours late. Her testimony was taken as an offer of proof with a determination to be made subsequently regarding whether or not it would be received. Employer has subsequently made no objection to the claimant's testimony being included as part of the record. It is therefore considered and included in Page 2 the record of this case. Defense counsel's request that, regardless of the outcome of the case, the claimant be charged with $50.00 for the court reporter fees while awaiting her arrival at the hearing is well founded and is granted. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Marie Taylor is a 50-year-old woman who lives at Oxford, Iowa. She was most recently employed as a housekeeper at the University of Iowa Hospitals. Her functions consisted of dusting, floor waxing, vacuuming and making beds. At times, she had to lift furniture and move beds. The work involved lifting in excess of 50 pounds on occasion. Her work likewise involved pushing a work cart which was loaded with cleaning supplies. She performed a great deal of bending. She climbed stepladders. Marie was responsible for turning mattresses on patient beds in the hospital. Marie completed the tenth grade in school and subsequently obtained a GED. Her work history includes a considerable amount of time as a homemaker. At age 26, she reentered the work force. She has performed waitress and kitchen work in the restaurant industry. For nine and one-half years, she worked as a baker and wrapper at the Hy-Vee stores in Coralville. In 1985, she commenced her job with the University of Iowa housekeeping department. Marie's medical history is remarkable for a 1986 knee injury which ultimately led to arthroscopic surgery in May of 1987 wherein a small amount of the medial meniscal cartilage was removed. Following that procedure, her pain complaints were greatly reduced but not completely resolved (exhibit 3c, pages 1-18). Prior to May 20, 1988, there were no indications that Marie had any problems with her low back. On May 20, 1988, Marie was on a stepladder dusting when she fell. The accident report, joint exhibit 4, makes reference to claimant's right upper arm, left wrist, left leg and right side of body being injured. Her low back is not mentioned. Marie continued to work on the day of the injury, but on the following day, she sought medical treatment. She was taken off work from May 21 through June 12, 1988, and was then released to return to work without restrictions effective June 13, 1988 (exhibit 3h, page 19; exhibit 4, pages 4-8). Her condition was diagnosed as a musculoskeletal strain and no permanent defect was anticipated (exhibit 3h, page 1). An earlier diagnosis had been simply lumbar strain (exhibit 3h, page 2). A progress note dated January 5, 1989, indicates that Marie had resumed full-time work and resumed her favorite recreational activity of dancing. It relates that she had some bad days but that they resolved quickly (exhibit 3c, page 19). Exhibit 3a, page 2, shows that Marie missed little time from Page 3 work during the third quarter of 1988. She missed considerable time during the fourth quarter of 1988 but little time again during the first and third quarters of 1989 (exhibit 3a, page 2). Claimant was seen in the emergency room on August 2, 1989, with complaints of low back pain as a result of a reinjury that occurred on July 30, 1989. The history indicates that she awoke with right low back pain and right hip and lateral thigh pain following two days of frequent flipping of mattresses while cleaning hospital beds (exhibit 3c, pages 21 and 22). She was placed at bed rest. When seen on August 8, 1989, her symptoms had completely resolved and she was released to return to work without restrictions. The physician assessed the incident as a reexacerbation of her previous low back condition (exhibit 3c, pages 21 and 22; exhibit 4, pages 14 and 17). Marie continued to work without notable absence until approximately one year later, namely August 28, 1990. It was on August 28, 1990, when Marie reported having injured herself on August 17, 1990, while lifting a mattress (exhibit 4, page 18; exhibit 3c, page 24). It is noted that, on the accident report, the method of injury was listed as pushing the cart. Marie was off work from August 22 through September 11, 1990 (exhibit 4, pages 19, 21, 22, 23 and 25; exhibit 3, page 25). Marie was then again off work September 25 through October 3, 1990 (exhibit 4, pages 27, 28 and 33; exhibit 3c, pages 26 and 27). She was again off work October 17 and 18 (exhibit 4, pages 31 and 32). Thereafter, Marie missed additional time from work for her back complaints. She was again seen on November 7, 1990, for a functional capacity evaluation. X-rays showed moderate L5-S1 degeneration with some retrolisthesis of L5 on S1 in flexion and extension. Some instability at L4-5 and slightly decreased disc space at L4-5 and L5-S1 were likewise identified. The assessment made was that claimant had chronic low back pain possibly due to degenerative disc disease. She was assigned a three percent permanent impairment rating of the body as a whole (exhibit 3c, pages 28 and 29). Claimant was seen on January 24, 1991, with complaints of a work-related exacerbation of back pain which had occurred on December 21, 1990. She was authorized to return to work on January 25, 1991 (exhibit 3c, page 32). Marie eventually entered a rehabilitation program on April 5, 1991. She was released from the program to return to work effective April 6, 1991. She worked approximately two weeks and then took a leave of absence starting April 22, 1991 (exhibit 3c, page 34). With regard to other information of times off work, the return to work on June 7, 1988, is exhibit 3d, page 1; the time off starting September 25, 1990, is exhibit 3d, page 3; the two days starting October 17, 1990, is exhibit 3d, page 4; and, the day of November 7, 1990, is exhibit 3d, page 5. A vocational rehabilitation assessment was performed on Page 4 November 7, 1990. It was found that claimant had a maximum lifting ability of less than 15 pounds and that her repetitive lifting ability was only 8 pounds. The notes indicate that she exhibited severe pain behavior. She likewise was found to have a low level of fitness. It was recommended that she lose 20 or 30 pounds. Vocationally, it was recommended that she search for other work and contact the Department of Vocational Rehabilitation if assistance was needed. It was recommended that she engage in a two-week rehabilitation program. In summary, it was noted that she had sustained a work injury on 8-88 [sic]. The initial intake showed three injuries, namely May of 1988, August of 1988 [sic] and August of 1990. The x-rays were interpreted as showing moderate degenerative joint disease at the L5-S1 level (exhibit 3d, pages 8-19). Marie did participate in the two-week rehabilitation program as recommended. During her participation, her functional capacity level decreased (exhibit 3d, page 25). She was released to restricted duty effective April 4, 1991. The restriction was that she have assistance in turning mattresses, moving large furniture and pushing beds (exhibit 3d, page 23). The employer declined to allow claimant to work with those restrictions and upon consultation with her physician, a release to full duty was obtained effective April 7, 1991 (exhibit 3d, page 27). Despite the April 7, 1991, release to full duty, a report was issued on April 11, 1991, in which restrictions of 16 pounds for maximum lifting and 8 pounds for repetitive lifting were recommended. A three percent permanent impairment of the whole body was assigned. It was further reported that the healing ended with claimant's return to work on April 8, 1991. It was reported that she could continue with housekeeping until she was able to find another job which provided less bending, twisting and lifting (exhibit 3d, pages 28-30). In a report dated May 1, 1991, it was acknowledged that the housekeeping job was not within claimant's activity restrictions and that she was aggressively seeking some other job (exhibit 3d, page 32). Subsequent follow-up exhibits showed that claimant's functional capacity had increased markedly by May 1, 1991 (exhibit 3d, pages 33 and 34). On July 24, further marked improvement was noted (exhibit 3d, pages 35-37). On October 2, 1991, however, marked decreases in her functional capacity were reported (exhibit 3d, pages 39-41). It was noted, however, that she was still considered to be 100 percent rehabilitable to full-time gainful employment. Claimant was evaluated by Robert Joseph Chesser, M.D. Dr. Chesser found claimant to have a seven percent permanent impairment of the body as a whole of which one percent was due to a restricted range of motion and six percent was due to degeneration in her spine (exhibit 1, page 9). Dr. Chesser causally related all the disability to the May 1988 injury. He explained that the degenerative changes were not caused by that injury, but that the injury marked the start Page 5 of the symptoms (exhibit 1, pages 9 and 10). He related that degenerative changes do not support activity restrictions if they are not symptomatic (exhibit 1, pages 13 and 14). Dr. Chesser did not disagree with the activity restrictions recommended by the University of Iowa Hospitals, but he indicated that he would have expected claimant to have been functioning at a higher level (exhibit 1, pages 10 and 11). Dr. Chesser agreed that claimant's symptoms could develop simply as a result of aging in view of the degenerative changes which he observed (exhibit 1, page 11). He indicated that weight loss might improve her symptoms (exhibit 1, pages 12, 16 and 18). Dr. Chesser stated that claimant's degenerative changes will gradually worsen but that her symptoms were not likely to worsen. He stated that the work injury would not likely cause additional disability in claimant's future (exhibit 1, pages 14 and 15). Dr. Chesser, in his report dated August 29, 1991, causally connected the claimant's symptoms to the May 1988 injury (deposition exhibit 2 to exhibit 1). As indicated by Dr. Chesser, this is a case in which the claimant's subjective symptoms seem to be somewhat greater than what the objective medical findings would normally be expected to produce. The same situation appeared true with regard to her 1986 knee injury. There is not a single medical practitioner in the record of this case who has stated, however, that her symptoms are in any manner fabricated. Based upon claimant's demeanor as she appeared at hearing, it would be fair to state that her demeanor was not that of a stoic individual. Nevertheless, she did fall, miss time from work and has been given a rating of permanent impairment as well as quite severe activity restrictions from the Spine Clinic at the University of Iowa Hospitals. The only other evaluation in the record comes from Dr. Chesser who does not strongly dispute the activity restrictions and offers a higher permanent impairment rating. This is a case in which the claimant has degenerative disc disease. It is a condition which, as stated by Dr. Chesser, likely preexisted the 1988 injury. It is a condition which, even in the absence of the 1988 injury, would be progressive. It is particularly noteworthy that the claimant worked for approximately a year following the 1988 injury until she sought any further medical treatment for her back condition. It is likewise noted that it was initially anticipated that no permanent disability or impairment would result from the injury. Subsequent events in the record of this case, namely those from on or about July 30, 1989, and August 17, 1990, do not appear to have been significant traumatic events. They are more in the nature of manifestations of the disability or weakness produced by the May 1988 injury. They are aggravations of the condition created by the May 1988 injury. Were it not for the permanent weakness and susceptibility to injury that was caused by the May 1988 injury, the subsequent injuries Page 6 for which claimant missed work would not have been likely to occur. The May 1988 injury was therefore a substantial factor in producing the subsequent periods of temporary disability which are shown in the record of this case. Likewise, the preexisting degenerative condition and subsequent aggravations were also substantial factors. The most substantial factor, however, was the original May 1988 injury. The assessment of this case as made by the University of Iowa Spine Diagnostic and Treatment Center is found to be correct as is the assessment made by Dr. Chesser. There is no irreconcilable, substantial difference in the assessments. A permanent impairment rating of five percent is found to be appropriate. In the record, it is noted that the claimant is considered to be rehabilitable. That finding is likewise found to be correct. Marie has not made a bona fide effort to seek other employment. It is certainly advisable for her to stay within the University of Iowa network if possible, but the Iowa City, Iowa, area has a relatively healthy labor market. Marie has not engaged in the activities that an individual sincerely seeking work normally performs. She has not made a concentrated work search. Nevertheless, her employer of more than five years felt that her impairment, activity restrictions and disability were sufficiently severe that it had no place for her in its quite sizable work force. Since the employer is well acquainted with Marie's injury, capabilities and limitations, its failure to place her is strong evidence of a high degree of disability. Claimant's degree of disability is therefore determined to be substantial. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of May 20, 1988, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist 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, Page 7 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). 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. Refusal to reemploy is strong evidence of lack of employability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (App. 1980); Army & Air Force Exch. Serv. v. Neuman, 278 F. Supp. 865 (W. D. La. 1967). Marie Taylor, with her education and work history, is limited from her previous employments by the activity restrictions which have been imposed upon her. She does not, however, appear to be at significant risk for further injury. The diagnostic studies have not found any objectively identifiable anatomical injury which resulted from the fall. The only abnormality shown is her degenerative condition. Her subjective complaints seem somewhat large in comparison to the objective diagnostic studies. It is particularly significant to note that her physicians authorized her to continue to perform the housekeeping job and indicated that it would not injure her Page 8 further. It was her own decision to cease that job. Nevertheless, the major employer with many different positions in its work force has not found other work for her. It would not be expected that any other employer would have as much incentive to find a suitable position for her as would the employer in whose employ she was injured. The lack of reemployment is indeed strong evidence of a very significant level of disability. When all the pertinent factors of industrial disability are considered, it is determined that Marie Taylor has a 25 percent permanent partial disability as a result of the May 20, 1988, injury. It is further determined that the subsequent injuries in August of 1989 and in August of 1990 were all in fact the same injury. The permanent partial disability compensation paid to her under either of those two incidents should be credited to the amount awarded in this decision. It is often difficult to determine whether any particular injurious incident is a new injury in the form of an aggravation of a preexisting condition, a simple manifestation of the disability which was caused by a prior injury, or whether it is both. In a case such as this, it is appropriate to determine that the subsequent incidents in 1989 and 1990 were substantial factors in producing temporary aggravations of the preexisting condition. It could be just as correct to treat them as additional episodes of healing period associated with the original injury. The permanency, however, is more strongly attributable to the original injury. The fifteen weeks of permanent partial disability compensation paid by the employer for the flare-up are to be credited toward the award in this decision. Wilson Food Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982). The subsequent events appeared to be quite insignificant traumas in comparison to the May 1988 trauma. Since additional healing period was not claimed, it is not necessary to make a specific determination of the healing period entitlement. Compensation for permanent partial disability is payable commencing at the end of the healing period. In this case, the claimant's healing period ended with her original return to work on June 13, 1988. It is on that date that her permanent partial disability compensation entitlement commences. Payment of permanent partial disability is interrupted or suspended for the times additional healing period compensation is paid for that original injury but not for times when disability benefits are paid on account of a subsequent injury. Page 9 order IT IS THEREFORE ORDERED that defendants pay Marie Taylor one hundred twenty-five (125) weeks of compensation for permanent partial disability at the stipulated rate of one hundred fifty-seven and 41/100 dollars ($157.41) per week payable commencing June 13, 1988. IT IS FURTHER ORDERED that defendants are entitled to credit for the fifteen (15) weeks of permanent partial disability compensation paid on account of the 1989 injury. IT IS FURTHER ORDERED that all other past due, accrued weekly compensation for permanent partial disability shall be paid to the claimant in a lump sum together with interest pursuant to section 85.30 computed from the date each weekly payment came due until the date of actual payment. IT IS FURTHER ORDERED that the costs of this action are assessed against the employer, except for fifty and 00/100 dollars ($50.00) of court reporter fees which are assessed against the claimant pursuant to rule 343 IAC 4.33. The net costs payable to the claimant are therefore seventy-three and 35/100 dollars ($73.35). IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law 4th Floor, Rock Island Bank Bldg. P.O. Box 4298 Rock Island, Illinois 61204-4298 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50309 5-1402.40; 1703 Filed May 18, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARIE TAYLOR, Claimant, vs. File No. 886089 UNIVERSITY OF IOWA, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendant. ___________________________________________________________ 5-1402.40 Five percent permanent impairment due to back injury in the nature of a strain which resulted in loss of job resulted in 25 percent permanent partial disability award for 50-year-old claimant. 1703 There was a dispute regarding whether subsequent flare-ups were new injuries or simply manifestations of the original injury. They were found to not be primarily manifestations of the original injury. Permanent partial disability paid as the result of one of the flare-ups was credited towards the amount awarded for the original injury. 5-1402.40; 1703 Filed February 25, 1992 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MARIE TAYLOR, : : Claimant, : : vs. : File No. 886089 : UNIVERSITY OF IOWA, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.40 Five percent permanent impairment due to back injury in the nature of a strain which resulted in loss of job resulted in 25 percent permanent partial disability award for 50-year-old claimant. 1703 There was a dispute regarding whether subsequent flare-ups were new injuries or simply manifestations of the original injury. They were found to not be primarily manifestations of the original injury. Permanent partial disability paid as the result of one of the flare-ups was credited towards the amount awarded for the original injury.