Page 1 before the iowa industrial commissioner ____________________________________________________________ : ANTHONY VANDERHEIDEN, : : Claimant, : : vs. : : File No. 886299 WERNIMONT CONSTRUCTION CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM FIRE & CASUALTY, : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on August 7, 1991, in Fort Dodge, 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 September 12, 1988. The record in the proceeding consists of the testimony of the claimant, Jerry Wernimont, Andy Androy, Kenneth Testroel, and Deb Pornaras; claimant's exhibits 1 through 18; and defendants' exhibits A through D and I through V. issues The issues for resolution are: 1. Whether claimant's alleged injury on September 12, 1988 arose out of and in the course of his employment; 2. Whether claimant's alleged disability is causally connected to a September 12, 1988 alleged injury; and 3. The nature and extent of claimant's disability and entitlement to disability benefits. Page 2 findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 33 year old who has a GED. He related his work history in various jobs prior to working for defendant employer beginning in August 1988. Claimant's work for defendant employer involved remodeling houses, a barn, motels, etc. Claimant was an experienced Sheetrock installer. He mentioned the various jobs he worked on for defendant employer and what type of work he did. He was basically a carpenter. Claimant related how his alleged injury occurred on September 12, 1988, while hanging Sheetrock with another em ployee, Andy Androy. He said he fell off the sawhorse onto the floor and felt a pop in his back. Pain and a tingling sensation developed. He said he rested awhile on a pile of Sheetrock and discussed his fall with Androy and then continued working. He told his employer but the employer said everyone's back hurts. After work on September 12, 1988, claimant and the boss, Jerry Wernimont, and other employees went across the street to drink at a bar. Claimant stayed and ate but the others left to go eat at another place. Claimant indicated he waited for the others to return, as agreed, but they never returned. Claimant subsequently went across the street to the motel where he had worked earlier and covered himself in plastic and slept in a hot tub in an unfinished motel room. No time was given but it would appear it was late at night or early morning when this occurred. Claimant could not remember the motel in which the employees were to stay. The evidence indicates the motel was agreed upon when they arrived in town that day. Claimant denied being intoxicated or having too much to drink. He admitted he had a "buzz on" from his alcohol consumption. The undersigned believes from claimant's testimony and all the other facts and circumstances that he was inebriated and couldn't find his way to the motel because of his condition. Early on the morning of September 13, 1988, he met the crew from the construction project at 7:30 a.m. at the project. He said he quit his job then because of the treatment he received the night before when he was not met by the others at the bar in which he was drinking. Jerry Wernimont honored claimant's request to be sent home and a bus ticket was purchased by Wernimont. Claimant was making $8.00 per hour plus overtime with defendant employer but had to sue in small claims court to get the overtime and the return of his tools and two weeks pay that was withheld. Claimant won the lawsuit. He said he also had to fight for his unemployment benefits. The record indicates he lost the first round for unemployment benefits but then won on appeal and was awarded the benefits. Claimant indicated he had no back problems prior to Page 3 September 12, 1988. He related things he could do prior to September 12, 1988 and things he cannot now do. He said he can only lift 30 pounds at the present time. Claimant's statement taken by the insurance company on January 29, 1988 indicated claimant has been receiving chiropractic treatments for his back since he was 15 years of age. These treatments occurred every few months (Defendants' Exhibit U, page 11). Claimant related a motorcycle-rock throwing incident in the fall of 1989 that occurred after his injury. Other witnesses testified to this also. The story of Jerry Wernimont differs from claimant's and his lady friend who was on the motorcycle with him on this occasion. There is no reason to set out the details of this event as related by the claimant, Jerry Wernimont or Deb Pornaras as it goes only to the credibility of the witness and not whether claimant has an industrial disability. It is obvious there was then and still is a strong dislike among the parties and some one person or persons are not telling the truth. As to this particular instance, the undersigned believes that claimant's understanding of the occurrence of this event is more credible than that of Mr. Wernimont. Although claimant has no motorcycle now, he was riding it again in 1990. He said he has had two motorcycles since September 1988. On cross-examination, claimant was impeached several times as to his testimony and answers to interrogatories. Claimant's recall of prior injuries was very poor. He did not recall a back injury or the first report of this injury in March 1988. He eventually remembered when the first report was shown to him. Claimant also did not recall at the time of his interrogatory answers or deposition his November 1979 low back injury at Farmland in which the admitting diagnosis was "ruptured intervertebral disc." Claimant could not recall if he asked defendants to see a doctor. Claimant did not make any effort to see a doctor on September 12 or 13, 1988. Claimant acknowledged he told defendant employer on September 12, 1988 that he was going to quit but he did not recall as to whether he told the employer he was going to file for unemployment. Claimant asked Jerry Wernimont if he could have his job back shortly after he quit. Claimant acknowledged he called Wernimont's wife regarding Jerry going to the bar but did not recall if details were given. The undersigned believes that claimant gave Mr. Wernimont's wife more details than he was indicating at a hearing. The undersigned draws this conclusion from the fact that claimant's attorney on different occasions asked whether Mr. Wernimont and his friends left the bar the evening of September 12 with ladies they met at the bar. Of course, this has nothing to do with the issues herein. Claimant said he had another accident since September 12, 1988, when he went to a house and there were no steps, as he thought, and he landed on the concrete on his head. It appears this accident occurred around December 1, 1988. Jerry Wernimont, owner of defendant employer, was Page 4 initially called by the claimant as an adverse witness and then called again to testify by defendants as part of defendants' case. He is 27 years old. He first employed claimant in August 1988 as a general laborer for $8.00 per hour. He related various jobs claimant worked on for him. He said claimant did not tell him he fell off a sawhorse and injured himself. At the end of the day of September 12, 1988, at 6:30 p.m., he and his workers, including the claimant, went across the street to a bar. He said claimant never said anything about an injury at that time either. He and his other workers left the bar to go eat about 9:30 p.m. The motel at which all were staying was two blocks away. After eating, he and the other employees returned to the bar where they left claimant and he was not there. Wernimont contends he returned to the motel at approximately 10:30 p.m. He said claimant was not at the job site at 5:00 a.m. the next day but was at the site at 7:30 a.m. He said claimant had no problem walking. Claimant then told him "he should kick the shit out of both of them, which one is first." He said claimant told him he would file for unemployment. Claimant said he was quitting. Wernimont then arranged to take claimant to the bus station at claimant's request and bought a ticket for claimant to return home. Mr. Wernimont said he then returned to the site and saw the Sheetrock had holes punched in it and the job site night lights were busted and a sledgehammer nearby had a broken handle. He said claimant called him two days later after he had quit and indicated everyone makes mistakes and wanted to know if he could come back to work as he would be ready Monday. Mr. Wernimont testified he first knew of claimant's injury seven days later when he received a call from the doctor's nurse wanting to know his workers' compensation carrier. He admitted he refused to give the name of his carrier at that time. Mr. Wernimont admitted he did not pay claimant his overtime or return his tools until claimant sued him in small claims court and won. The judge ordered the return of the tools, payment of overtime and the two weeks of pay he had withheld. Mr. Wernimont agreed there was a motorcycle incident involving claimant coming in the vicinity of a job site of defendant employer. The parties' stories are different as to what occurred. Wernimont does not know where claimant spent the night of September 12, 1988. He indicated claimant was not at the job site at 5:00 a.m. Andy Androy, who now works for his father, was employed by defendant employer and worked on the Wisconsin project with claimant on September 12, 1988. He said he did not see claimant fall or hear claimant's back pop. He indicated he never heard claimant say he hurt his back nor did he hear claimant tell anyone else. He said he never saw claimant hurt and the next day, September 12, 1988, claimant never Page 5 said anything as to his back hurting. Androy said Wernimont, himself and the other workers went back to the bar in the evening of September 12, 1988, and claimant was not there. Keith Testroel testified in rebuttal but his testimony is of no real consequence and only went to issue credibility. Deb Pornaras was called as a rebuttal witness. She was with claimant on the night in 1989 when Jerry Wernimont allegedly threw a rock at the motorcycle that she was riding on with the claimant. She described how she feared for her life and Wernimont's actions in driving his truck toward her. She said she jumped off the motorcycle because she thought she was going to get hit by his truck. Claimant was called again to rebut testimony of Andy Androy and Jerry Wernimont. He did state that he did not drink all the seven hours he was at the bar the evening and morning of September 12 and 13, 1988. He said he was not intoxicated but had a buzz on" as he had an empty stomach. He said he did not vandalize the job site. Defendants' exhibits A, B and C reflect claimant's prior back problem but there is no evidence that claimant suffered any residuals from this 1979 injury reflected therein. Defendants' exhibit D reflects a lumbar strain in March 1989. Defendants' exhibit I reflects a bulging disc at L4-5. Defendants' exhibit J reflects claimant's heavy drinking problem and depressed suicidal condition. It indicated claimant fell down into the basement as claimant entered a house being remodeled and the stairway was taken away. Claimant fell onto the concrete floor hitting his head and received contusions, abrasions and cervical strain. This is also reflected in claimant's exhibit 15, page 100. Defendants' exhibit L reflects several chiropractic treatments given claimant beginning September 14, 1988 through February 28, 1989. Defendants' exhibit K reflects defendant insurance company on January 26, 1988, notified the chiropractor that no more treatments would be paid for. Defendants' exhibit M reflects a letter from John M. Dougherty, M.D., on February 23, 1989, in which he examined the claimant on February 20, 1989, for orthopedic evaluations and suggested some tests. On the May 4, 1989 appointment, claimant was uncooperative. The doctor subse quently wrote the insurance company that he no longer agreed to order further tests or further examine this claimant. The report of Joel T. Cotton, M.D., dated July 8, 1991, reflects that claimant has a history of low back pain going back to age 15. He found no neurological impairment and no permanent partial disability. The undersigned believes the doctor means impairment, not disability. The doctor further wrote that the claimant told him he had periodical Page 6 adjustments every three to four months from that age (15) up to and including the date of injury and on some occasions treatments increased to two times per day. He further wrote: While this may have caused a temporary increase in symptoms, there is nothing to indicate that any aggravation of his underlying condition took place. It is my opinion based upon a reasonable degree of medical probability that this individual could pursue all usual and customary activity without restriction and that there specifically is no loss of function present in this individual as a result of the September, 1988, injury. (Def. Ex. N) Joseph F. Gross, M.D., a professor in the orthopedic department at Creighton University, testified by way of his deposition of March 27, 1991 (Cl. Ex. 1). He related the history claimant gave him on claimant's visit in July 1990. He opined claimant had a 10 percent permanent partial impairment to his body as a whole (Cl. Ex. 1, p. 9; Cl. Ex. 5, p. 66). Claimant's attorney then attempted to lead the doctor as to the September injury aggravating claimant's back problems. Defendants properly objected. The doctor indicated that he thought claimant's September 1988 injury aggravated claimant's back problems but the doctor was not given a history by the claimant of his falling in an open stairway landing on cement on his head, nor that he has had chiropractic treatments for a number of years (Cl. Ex. 1, pp. 9 and 18). Claimant never told the doctor that he cracked his tailbone either (C. Ex. 1, p. 23). The doctor did indicate that the fall down the stairway would not change his opinion that claimant's September 12, 1988 injury caused claimant's current medical situation. The undersigned frankly fails to follow the doctor's conclusion based on the facts he had or actually did not have originally. It appears these additional facts of additional injuries would cause some reconsideration on the doctor's original opinion which was rendered without this evidence. John J. Dougherty, M.D., an orthopedic surgeon, testified by way of his deposition on September 12, 1991 (Cl. Ex. 2). He testified he examined claimant on February 20, 1989. Claimant told the doctor his only back problem was a fall on his tailbone as a child and he had chiropractic treatments all of his life. He also indicated claimant told him he couldn't lift more than 25 pounds and has strained muscles and has strained muscles before. Claimant did not relate a history of his March 1988 back strain or any popping in his back on September 12, 1988 as result of his September 12, 1988 alleged injury (Cl. Ex. 2, p. 6). It also does not appear the doctor knew of claimant's fall in December 1988 into a basement. It is surprising the doctor was not specifically asked this at his deposition. The doctor said claimant has a spina bifida occulta of S1 and a bilateral sacralization of L5. He said the MRI Page 7 report of July 31, 1989 shows degenerative lumbar spondylolysis at L3-4 and L4-5 level with medium bulging of the annulus but no frank disc herniation. He said claimant has a congenital abnormal low back. Contrary to what Dr. Gross indicated on July 17, 1990, Dr. Dougherty said that on February 20, 1989, both of claimant's calves were equal and he didn't see any atrophy. He agreed with Dr. Gross that from the history he obtained, claimant's September 12, 1988 incident would have been of such a character as to materially aggravate claimant's back (Cl. Ex. 2, p. 20). Dr. Dougherty did not have an opinion as to claimant's impairment as he only saw claimant on February 20, 1989 (Cl. Ex. 2, p. 21). He did say that based on what he knows he would question that much impairment as given by Dr. Gross and, in fact, indicated he didn't think claimant was having too much trouble and would hesitate to give him any disability (Cl. Ex. 2, p. 23). The undersigned believes the doctor meant impairment as only the deputy industrial can determine the claimant's disability herein. The doctor said the fact that claimant has a congenital anomaly would give claimant some symptoms from time to time. In his February 2, 1989 letter, the doctor refers to claimant's February 20, 1989 examination. It doesn't appear the doctor was told anything about claimant's December 1988 fall into a basement. He questions whether claimant was having as much difficult as he indicates. He felt claimant could go back to work. He said claimant has had trouble with his back for a long period of time. (Cl. Ex. 14, p. 99). On August 21, 1989, Steven J. Kraus, D.C., wrote he was unable to evaluate any permanency because he had not seen claimant for nearly six months. He indicated claimant reached maximum medical recovery on January 20, 1989. He also suggested further chiropractic care to reduce further aggravation of claimant's disc bulge. Claimant was only treated twice by Dr. Kraus. His record does not reveal claimant's fall into a basement in December 1988 (Cl. Ex. 6). On May 30, 1989, John R. Carroll, M.D., questions the severity of claimant's discomfort (Cl. Ex. 8). His examination was normal and the CT scan showed only minimal bulging of one lumbar disc with some compression of the thecal sac without apparent impingement of the nerve roots or of current or recent disc rupture with extrusion of the nucleus pulposis. He said this condition is common in asymptomatic patients with early or mild degeneration of the disc. He indicated that although claimant's history is very plausible for an acute musculoskeletal back injury, he would not hazard to guess its actual nature or extent based on his examination in November. Claimant's exhibit 12, page 96, indicates that on January 16, 1989, claimant fell ten feet down into an open basement, unconscious, and went to the hospital. He received a neck injury. Page 8 Claimant's exhibit 15, page 100, dated December 1, 1988, indicates claimant was admitted under court order for evaluation of suicidal attempts and depression. He had been drinking heavily and was having marital problems with his wife over his lifestyle. On the date of admission, he had eight shots of whiskey and three beers. He indicated on the same date claimant entered the back door of a house being remodeled and fell on the concrete floor hitting his head. Whether this is the same event reported in claimant's exhibit 12, page 96, is not clear as it indicated that fall occurred on January 16, 1989. The undersigned believes it is one and the same event but is surprised this was not cleared up on questions asked at the hearing. There was considerable testimony in this case strictly to the issue of credibility of the witnesses. Without question, this case was full of contradictory statements of the parties over the facts or situations in which there should not been dispute or a disagreement as to what occurred. It is obvious to the undersigned that perjury has been committed. The difficult problem the undersigned has is who is the more credible witness. Claimant has the burden to prove that an injury arose out of and in the course of his employment and, also, that there is a causal connection between the claimed disability and the alleged injury. Claimant alleges a fall but Mr. Wernimont and Mr. Androy claim no knowledge of any actual fall or injury. Claimant relates conversations that he had with Mr. Androy. It is undisputed that Mr. Androy was working on September 12, 1988 with claimant. It is obvious there is tremendous animosity and dislike between claimant and Jerry Wernimont, the owner of defendant employer. The animosity was evident at the hearing. The parties had confrontations after the alleged injury. Mr. Androy does not work for defendant employer and appears to be, of the three individuals; namely, claimant, Jerry Wernimont and himself, the most disinterested witness. It appears he was a brother-in-law of claimant but the question was not followed up as to whether claimant's wife or ex-wife was his sister. There is no evidence as to the claimant being divorced even though there is considerable evidence of claimant's marital problems from the medical history of claimant given to various doctors. If the undersigned believes Mr. Androy, then no fall occurred on September 12, 1988. It would then follow that claimant may have received some back problems when he left the bar late at night on September 12 or early morning, September 13, 1988, and slept in a tub at the job site wrapped in plastic. Claimant did not disclose his medical history accurately when he visited certain doctors, particularly after he had a fall into a basement apparently in December 1988. Claimant has had psychiatric problems and marital problems and obviously does considerable drinking. Claimant has had back problems all his life, at least from age 15 up the date of his alleged Page 9 injury of September 12, 1988. Claimant has been going to a chiropractor over the years prior to his injury. Claimant has a congenital back condition and this degeneration all occurred prior to his alleged September 12, 1988 injury and subsequent thereto. The undersigned has noticed the demeanor of the parties during their testimony, particularly since it was evident there was going to be a wide variance in the parties' testimony. The undersigned is concerned about the obvious perjury in this case. Mr. Androy appears to be the most disinterested witness at the hearing. The undersigned believes he is the most credible. With this conclusion being drawn, it would appear that the claimant did not injure himself a fall on September 12, 1988. The undersigned finds that claimant did not incur an injury on September 12, 1988, which arose out of and in the course of his employment. The resolution of this issue makes all other issues moot. Notwithstanding that, the undersigned also finds that claimant has failed to prove a causal connection between his alleged injury and his current medical condition. It appears that an intervening event occurred in 1988 that could have caused claimant's current problems or the extent they may exist. Claimant kept this information basically from the doctors. It would appear that an injury of this nature, namely, someone walking into a house expecting steps and suddenly falling ten feet onto the concrete on his head, could cause an injury or aggrava tion of an injury. Claimant has the burden to prove causal connection and he has failed. The undersigned finds that claimant shall take nothing from these proceedings. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 12, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 12, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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 Page 10 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. It is further concluded that: Claimant did not incur an injury on September 12, 1988, that arose out of and in the course of his employment. Claimant further failed to carry his burden of proof to show that his alleged medical condition or disability is causally connected to a work-related injury on September 12, 1988. Claimant is entitled to no benefits herein. Claimant and Jerry Wernimont are not credible witnesses. order THEREFORE, it is ordered: That claimant takes nothing from these proceedings. That claimant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of August, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr E W Wilcke Attorney at Law 826 1/2 Lake St P O Box 455 Spirit Lake IA 51360 Mr Judith Ann Higgs Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 5-1100; 5-1108 Filed August 28, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : ANTHONY VANDERHEIDEN, : : Claimant, : : vs. : : File No. 886299 WERNIMONT CONSTRUCTION CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM FIRE & CASUALTY, : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Found claimant did not incur an injury that arose out of and in the course of his employment. 5-1108 Claimant failed to prove causal connection. Claimant and defendant employer were not credible witnesses. Deputy relied on testimony of a more disinterested witness to arrive at his conclusion as to arising out of and in the course of. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : BARBARA ALITZ, : : Claimant, : : vs. : : File No. 886305 HY-VEE FOOD STORES, INC., : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. ISSUES Defendants state the following issues on appeal: 1. Whether or not the Deputy Industrial Commissioner erred in concluding that claimant's injury of August 18, 1988, caused her to have a 30 percent industrial disability, and 2. Whether or not the Deputy Industrial Commissioner erred that defendants did not act reasonably and delayed in increasing their benefits to claimant. Claimant states the following issues on cross-appeal: 1. Whether or not the Deputy Industrial Commissioner erred in holding that claimant's injury of August 18, 1988, caused her to have only a 30 percent industrial disability, and 2. Whether or not the Deputy Industrial Commissioner erred in limiting penalty benefits for unreasonable denial and delay of payments under Iowa Code Section 86.13 to only 15 weeks of penalty benefits. FINDINGS OF FACT Drugtown is owned by defendant-employer Hy-Vee Food Stores, Page 2 Inc. Claimant is a high school graduate and worked at a nutrition store for five years prior to beginning her employment with Drugtown in 1987. (Transcript, page 25) The parties have stipulated that claimant sustained a personal injury arising out of and in the course of her employment with defendant employer on August 18, 1988. The parties have further stipulated claimant was paid temporary total disability benefits for a period of 28 weeks and 2 days (through March 7, 1989) at her rate of $147.42 per week. (Hearing Report) Claimant was born March 28, 1942 (Exhibit 8) and was 46 years old at the time of her injury. On the day of the injury claimant worked nine hours hauling 170 cases of candy from the back room of the store and stacking the candy on shelves at the front of the store. Each case weighed approximately 35-40 pounds. (Tr., pp. 8-9) The following day claimant experienced severe pain in her right leg, right foot and back. (Tr., pp. 10-11) She first saw a doctor regarding this injury on or about August 22, 1988. (Tr., pp. 13-14) X-rays revealed claimant had sustained two herniated discs and surgery (hemilaminectomy on the right with discectomy L4-5, S-S1 with fat graft) was performed by William R. Boulden, M.D., on November 28, 1988. (Joint Exhibit 7, p. 2) A functional capacities evaluation was done on January 12, 1989 (Jt. Ex. 5) that determined claimant "currently would be placed in a light/medium classification of work." Work hardening was to begin on January 16, 1989. On July 20, 1989 claimant's treating physician, Dr. Boulden, stated claimant's injury "has left her with a 10 percent disability of the spine based on the fact of discectomy." (Jt. Ex. 7, p. 4) Based on that report defendants paid claimant permanency of 50 weeks at her rate of $147.42 per week. In 1990 claimant experienced more difficulties and returned to Dr. Boulden. On June 4, 1990 Dr. Boulden stated, "I feel that she probably needs to be updated with re-evaluation for a disability rating." (Jt. Ex. 7, p. 8) On July 18, 1990 Thomas Bower, physical therapist, and Dr. Boulden increased claimant's impairment rating to 16 percent. (Jt. Ex. 6) Defendants had claimant evaluated by Peter D. Wirtz, M.D. On September 19, 1990, two months following the re-evaluation by Page 3 Mr. Bower and Dr. Boulden, Dr. Wirtz evaluated claimant's permanent impairment at a total of 10 percent to the body as a whole. (Jt. Ex. 11, p. 7; Deposition Ex. 1; Jt. Ex. 3) Both Drs. Boulden and Wirtz re-examined claimant on February 1, 1994 and April 8, 1994 respectively (Jt. Ex. 7, p. 17; Jt. Ex. 3, pp. 3-4), and found there to be no change in claimant's present condition. Dr. Wirtz placed the following work restrictions on the claimant: No excessive and repetitive bending, lifting, twisting, and squatting; maximum weight capability of 20 pounds. (Jt. Ex. 3, p. 3) Due to claimant's injury she was off work from August 18, 1988 until March 8, 1989, a period of approximately 6 1/2 months. The claimant returned to work at Drugtown on March 8, 1989 and has been continuously employed by defendant employer since that time, a period in excess of five years at the time of hearing. In May of 1989 the Drugtown location where the claimant worked moved into the Hy-Vee stored located at Southridge Mall. Since her return to work the claimant has worked for defendant employer as manager of the camera department for approximately three years and in her current position in the pharmacy department. (Tr., pp. 17-18) Since returning to work on March 8, 1989 the claimant's employment has been steady and she has experienced almost no absenteeism. (Tr., p. 39) Claimant is clearly a motivated individual and defendant employer clearly has acted responsibly in accommodating claimant's work restrictions. The claimant experiences constant pain. In the pharmacy department the claimant's work includes billings, logging invoices, filling unit doses and occasionally working behind the counter taking prescriptions and money. (Tr., pp. 19, 42) Consistent with her work restrictions the claimant finds herself unable to stand or sit in one place for very long and unable to do lifting. In accordance with the claimant's work restrictions defendant employer has given claimant the freedom to move about as she sees fit. The claimant's co-workers do any lifting the claimant is unable to do. (Tr., pp. 19, 20, 40) The claimant's medication consists of over-the-counter pain medicine (14-16 tablets daily) and a prescription medication for pain. (Tr., p. 21) At the time of injury the claimant worked 40 hours per week and was paid $5.50 per hour. (Tr., p. 23, 50-51) The claimant's current work schedule has her working two consecutive weeks at 38 hours per week followed by a 40 hour week. (Tr., p. 22) The claimant's current pay is $8.25 per hour. (Tr., p. 24) Since her return to work on March 8, 1989 the claimant's hourly pay has increased as follows: Page 4 7/89 $6.50/hr. 1/90 $6.75/hr. 1/91 $7.00/hr. 1/92 $7.25/hr. 12/92 $7.40/hr. 6/93 $7.65/hr. 1/94 $8.25/hr. (Tr., pp. 43-44) Page 5 REASONING AND CONCLUSIONS OF LAW The industrial commissioner first addresses the industrial disability issue, i.e., claimant's loss of earning capacity. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). 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. Iowa Code section 85.34. Claimant, a high school graduate, 46 years of age at the time of the injury with no known pre-injury impairment, sustained a work injury that resulted in surgical intervention and leaves her in constant pain. Claimant has a functional impairment rating as high as 16 percent and rather severe work restrictions. Clearly claimant is a motivated individual. But for defendant employer's willingness to accommodate claimant's work restrictions, the evidence causes the industrial commissioner to Page 6 conclude that due to claimant's work injury her prospects for employment would not be good. On the other hand, the record establishes that claimant is in a stable employment relationship with defendant employer and has been since her return to work on March 8, 1989, a period of more than five continuous years at the time of hearing. Evidence of a stable employment relationship includes: Claimant has received a total of seven pay raises since her return to work; defendant employer has provided the claimant with meaningful work (claimant is not in a make work situation); and defendant employer has fully and completely complied with claimant's work restrictions (claimant is free to move about as she pleases and co-workers do lifting for the claimant). Regarding the claimant's earnings, her post injury hourly rate ($8.25 at time of hearing) is exactly 50 percent higher than her hourly rate at the time of injury ($5.50). Post injury, claimant's total weekly hours of work are for all practical purposes the same as at the time of injury (on average less than a one hour per week reduction). After considering all of the factors used in determining industrial disability, it is the decision of the industrial commissioner that Barbara Alitz has sustained a 20 percent industrial disability. The final issue to be addressed by the industrial commissioner is that of 86.13 penalty benefits. Iowa Code section 86.13 permits an award of up to 50 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendants' delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonably in denying payment. See Stanley v. Wilson Foods Corp., File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). Covia v. Robinson, 507 N.W.2d 411 (Iowa 1993). Imposition of a penalty pursuant to Iowa Code section 86.13 in the instant case is unwarranted. On March 8, 1989 claimant returned to work for defendant employer. On July 20, 1989 the treating physician assigned a 10 percent functional disability impairment which defendant insurance carrier paid. As the claimant had returned to work without any loss of actual earnings, it was fairly debatable as to whether additional compensation was due claimant. Determining industrial disability is not an exact science and it cannot be said that defendant insurance carrier, under the fact of this case, acted unreasonably in its decision to pay the functional disability impairment assigned by the treating physician. Page 7 On July 18, 1990, the treating physician increased claimant's impairment rating to 16 percent. Was it unreasonable for defendant insurance carrier to fail to pay additional compensation based upon the new impairment rating? Under the facts of this case the industrial commissioner concludes that it was still fairly debatable as to whether the claimant was entitled to additional compensation after the July 18, 1990 impairment rating. At the time of receiving the increased impairment rating the claimant had been back to work for defendant employer for sixteen continuous months and was being paid $6.75 per hour, an hourly rate approximately 23 percent higher than at the time of injury. Further, only two months following the increased rating by Dr. Boulden, Dr. Wirtz opined the claimant's impairment rating was 10 percent. Reviewing the record in its entirety, the industrial commissioner concludes that defendants' position was fairly debatable. Penalty benefits are denied. WHEREFORE, the decision of the deputy is affirmed and modified. Page 8 ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the rate of one hundred forty-seven and 42/100 dollars ($147.42) per week from March 8, 1989. That claimant take no 86.13 penalty benefits. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Defendants shall pay all other costs. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of October, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James L. Spellman Attorney at Law 1300 Locust St. Des Moines, Iowa 50309 Mr. Frank T. Harrison Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 5-1803; 5-4000.2 Filed October 27, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : BARBARA ALITZ, : : Claimant, : : vs. : : File No. 886305 HY-VEE FOOD STORES, INC., : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 5-1803 Claimant, who was 46 years old at time of her injury, suffered a lower back injury. Surgery was performed on two herniated discs. Claimant had a 10-16 percent functional impairment and restrictions consistent with the functional impairment. Post-injury earnings was 50 percent higher than pre-injury earnings. Defendant employer accommodated claimant. Claimant was employed by defendant employer in a stable employment relationship. Claimant awarded a 20 percent industrial disability. 5-4000.2 Insurance carrier voluntarily paid 10 percent industrial disability based on a functional impairment rating of 10 percent. It was fairly debatable whether claimant was entitled to additional compensation due to an increase of impairment rating to 16 percent by one doctor. Penalty benefits were denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ BARBARA ALITZ, : : Claimant, : : vs. : : File No. 886305 HY-VEE FOOD STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This case came on for hearing on April 29, 1994, at 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 August 18, 1988. The record in the proceeding consists of the testimony of the claimant and claimant's husband, John Alitz; claimant's mother-in-law, Mary Alitz; claimant's brother-in-law, Michael Alitz; and, joint exhibits 1 through 11. ISSUES The issues for resolution are: 1. The extent of claimant's permanent disability and entitlement to disability benefits; and, 2. Whether claimant is entitled to 86.13(4) penalty benefits. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant did not relate her age, but from the medical report she would be 52 years of age. Claimant is a high school graduate and worked at a nutrition store five years prior to beginning work for defendant employer. Claimant did not testify as to her education or her medical history prior to her alleged injury of August 18, 1988. Claimant testified that on August 18, 1988, she was working at Drug Town, which is owned by Hy-Vee Stores. She Page 2 indicated that on that day 170 cases of Russell Stover candy were delivered and it is her job to put them on the shelves in the store. She indicated she had to wheel them from the back room to the front of the store and it had to be done on that day. She indicated she worked nine hours until about 5:30 or 6:00. She indicated she usually gets off work 4:00 or 4:30 Claimant indicated that each case of candy weighs about 35 to 40 pounds and she used a two-wheeler cart to haul it. Claimant said she had a hard time pushing the two-wheeler under the boxes of candy and her foot couldn't move. She said that when she was hauling the candy earlier that day and using a two-wheeler, her foot was working okay, but on this particular later occasion she was having trouble operating her foot. Claimant said she started to go to work on August 19, 1988, and was approximately one-half block from her house when she couldn't use her right leg at all and was afraid she couldn't get home. She experienced severe pain in her back and down her leg and into her foot. She called her employer and then contacted the doctor who sent her to Lutheran Hospital for x-rays. (Joint Exhibit 2) Her x-rays were normal other than showing a bilateral spondylolisis at L5. Claimant said the first day she missed was August 15, but did not see the doctor until August 22 as she could not get into see him any sooner. The doctor sent her to Dr. Boulden who prescribed traction in her home. She also indicated there was a black and blue bruise on her foot above the back of the toes which went away gradually. Her home traction did nothing for her. Claimant said that she couldn't lie on the bed because of her pain and slept on the floor for several months. Claimant had surgery on two discs in November of 1988 and then returned back to work on March 8, 1989. Upon her return she worked 38 hours for two weeks and then back to 40 hours, but did not work nights. She now works in the pharmacy where previously she was in the camera department. Claimant indicates she does billings for third parties in working with the pharmacist and fills out forms, etc. She indicated she cannot stand or sit for too long a period of time. Claimant stated she has to be careful as on occasions she falls because she tends to drag her foot. She indicated she takes 14 to 16 Excedrin a day. Claimant said the employer offered her working 40 hours per week at night but claimant said she can't work at nights because she gets fatigued and, therefore, cannot work after 5:00 or 6:00 p.m. She said that since she was injured she cannot work at nights now and they have therefore lessened her hours from 40 to 38 hours a week. Claimant said her foot hurts and showed a lot of little veins that appeared to come to the surface and give a discoloration to her ankle. She pointed this out to the undersigned but frankly from the bench to where the claimant was sitting at the witness Page 3 stand, the undersigned could not really see any color differentiation from that distance. Claimant said she cannot bend or twist or stand for very long periods. She said she can no longer pick up her grandchildren and contends if she didn't have her job at Hy- vee she would have a hard time finding a job. She emphasized she can no longer do housework or garden work and that before the accident she did her own housework, scrub the floor, and had a large garden. She indicated her husband did no housework prior to her injury nor worked in the garden. Claimant said she has cramps at night and cannot kneel. Claimant said she gets depressed over her injury and pain and it has affected her attitude. Claimant contends that her injury has caused her a 75 percent decrease in her ability to earn money and that her activities in general decreased 50 percent of what she could do before her injury. Claimant acknowledged that since March 9, 1989, when she returned to work, she has had very little absenteeism. She testified as to the various increases she has had since she returned to work. It appears her hourly wage at the time of her injury was $5.50 and in January of 1994 was $8.25 per hour. Claimant indicated she does not ride horses now but indicated she has taken some weekends off because of horse shows which she attends. Claimant said she currently has a black and blue mark on her leg which is different than the one she had before and is in a different place. She also attempted to show the undersigned that and frankly, the undersigned did not see anything remarkable from where he was sitting on the judge's bench with the witness sitting in a nearby witness chair. She contended her ankle was purple but as indicated, the undersigned would not describe it as purple from where he was sitting. Mary Alitz, claimant's mother-in-law, testified that she observed claimant prior to August 1988 and described her various activities. She indicated claimant was very ambitious, was a dependable mother, did all the housework, had a big garden, canned and did most of the yard work. She said that since the August 18, 1988 injury, claimant has not been able to do the things she did before and is very limited and that claimant's daughter and husband must now do the housework and her husband does the yard work. She said claimant's attitude has changed and she has become very nervous and knows by her observation that claimant is having pain and is uncomfortable. She indicated claimant sometimes eats standing up and that lengthy rides are hard on her. John Alitz, claimant's husband, testified. His testimony pretty well corroborated with the testimony of his mother. He indicated he does a lot now that he didn't do previously. He said claimant is depressed, has trouble walking as she drags her leg. Michael Alitz, claimant's brother-in-law, testified and Page 4 basically corroborated the prior testimony of the family. Joint exhibit 3 is a September 19, 1990 letter of Peter D. Wirtz, M.D. He opined that claimant had a 5 percent impairment of the body as she had two disc space removed and had a 5 percent additional impairment as she has a persistent neurologic relating to her condition. In April of 1994, the doctor opined that claimant's impairment was no greater but he further stated that claimant's back condition would allow gainful employment with restrictions of excessive and repetitive bending, lifting, twisting and squatting and her weight capability would be 20 pounds. Joint exhibit 6 is a July 18, 1990 report signed by William R. Boulden, M.D., and Thomas W. Bower, L.P.T., which indicates that claimant's previous rating of 10 percent must be adjusted. The doctor still agreed with the 10 percent given for the discectomy at L5-S1 but additionally opined a 7 percent impairment due to the contributory effect of the S1 changes. Using the combined charts, the doctor opined claimant sustained a a 16 percent impairment to the body as a whole. Joint exhibit 7 contains a February 22, 1994 letter of Dr. Boulden in which he indicates that in his medical opinion claimant is still suffering from the same problems she had before and continues to have the same type of symptoms and that there is little else he can do because of the permanent changes that have occurred in the nerve. He further opined that surgery would not be helpful and that the disability rating has not changed since his clinical examination of claimant in 1990. Joint exhibit 7 reflects the report of the operation on November 28, 1988 in which claimant had a hemilaminectomy on the right with discectomy L4-5, 5-S1 with fat graft. Joint exhibit 10 is an August 15, 1989 letter in which defendant insurance company's adjuster wrote claimant indicating that since Dr. Boulden opined claimant had a 10 percent industrial rating that they were going to pay her the 10 percent. That letter isn't as clear as it could have been plus the undersigned finds it deceptive to the extent that the insurance company used the word 10 percent industrial rating. This would lead one who is not educated in the workers' compensation law to believe that is claimant's extent of industrial disability. The insurance company should well know that impairment rating and industrial disability are two entirely different animals and that impairment is just one of many criteria used to determined industrial disability. Likewise, even if the insurance company used 10 percent impairment it is also quite common that usually industrial disability is not the same as the industrial disability ultimately determined, but to date the insurance industry has been getting by, per law, with paying that rate based on impairment to avoid penalty assuming all the other circumstances are present to prevent penalty for some other reason. Page 5 Since the defendant insurance company is applying their criteria that industrial disability and impairment rating are synonymous, at least as to their paying benefits, in this case 10 percent, then why don't they apply the same rule when the July 1990 letter came out from the same doctor, Dr. Boulden, which is also signed by a licensed physical therapist. Because of additional changes from this work injury, the doctor opined claimant had a 16 percent impairment to the body as a whole based on facts existing as of July 1990. It would seem the insurance company at that point would have paid at least 6 percent more permanent partial disability benefits or using their improper terminology, pay claimant 16 percent "industrial disability." The undersigned feels that if the insurance is going to use its often used criteria regardless of how inaccurate it often is, then they should apply and be bound by the same criteria when the facts change. The undersigned finds that they should have paid 6 percent more or 30 weeks more of disability benefits under their "standard" used. Peter Dwight Wirtz, M.D., testified through his deposition on April 15, 1994, which is one week after the doctor had written his April 8, 1994 letter (jt. ex. 3) and two weeks before the hearing. The doctor's deposition does not change the conclusions issued in his letter of April 8, 1994. (Jt. Ex. 3) The undersigned sees no need to set out in detail any of the doctor's testimony as said report seems to sum up his opinion and understanding of the situation. One might add that Dr. Wirtz is known by this agency to be ultra conservative in any rating and any determination of injury to those claimant sent to him by defendants. Defendants do not deny that an injury arose out of and in the course of claimant's employment or that there is causal connection as to some permanent disability. The undersigned finds that the overwhelming weight of evidence shows that claimant does have a functional impairment and the medical evidence shows it runs from 10 percent up to 16 percent and that claimant has some rather substantial restrictions, one of which is a weight limit of 20 pounds and a limitation of her standing and sitting. The undersigned believes that the impairment rating of Dr. Boulden is more accurate in light of the facts and as indicated earlier, Dr. Wirtz is considered very conservative in any rating as far as this agency's experience. Dr. Boulden did not indicate any restrictions. Dr. Wirtz did and the undersigned believes that claimant does have restrictions and the overwhelming medical evidence would indicate that those are reasonable. The undersigned also believes that when Dr. Wirtz sets out his restrictions they must be at least that much in light of this agency's experience with Dr. Wirtz if he opines restrictions concerning claimant. Therefore, the undersigned finds that claimant has restrictions of limiting herself to excessive and repetitive bending, lifting, twisting and squatting and her weight capability would be 20 pounds. Claimant appears to have had no trouble doing her job or doing her normal activities prior to her injury of August 18, 1988. Claimant is 52 years of age and has only a high Page 6 school education. She has no real transferable skills and it would appear that her availability of work would be in a job similar to her current job or even possible lesser pay if she had to begin with a new employer. Taking into consideration claimant's medical and work history prior to and after her August 18, 1988 injury; her education; the location of her injury; her healing period; severity of her injury; her age; motivation; education; functional impairment; and the employer accommodating claimant, the undersigned finds that claimant has a 30 percent industrial disability. The undersigned further finds that although claimant has no loss of income, that is only one criteria in determining industrial disability and that claimant has in fact lost bodily function and earning capacity and is not able to do as much of the type of work or the extent of the work she was able to do previously. Claimant is fortunate to have the employer accommodating her and without such accommodation, claimant would be substantially affected as far as her ability to obtain any meaningful employment. The undersigned therefore emphasizes that this industrial disability finding is based on the fact that claimant is fully employed with the accommodating defendant employer with no current loss of income. The only remaining issue is whether there should be penalty benefits. The undersigned alluded previously to the fact that the insurance carrier chose a criteria whereby they paid permanent partial disability benefits based on the functional impairment rating of Dr. Boulden per his August 15, 1989 letter. Why they didn't pay using the same criteria on the July 18, 1990 16 percent impairment of Dr. Boulden and Thomas Bower, both of whom are well known to the defendants and who not only were authorized in this case but are commonly known as medical personnel who are accepted and who frequently have referrals from the defendant employer and insurance industry. Defendants decided to have another of their authorized doctors, the conservative Dr. Wirtz, to come up with another rating. As indicated earlier, from past experience the odds are his rating would be less than Dr. Boulden. The undersigned finds that defendants should pay penalty benefits to the claimant as defendants were unreasonable and not applying the same criteria they ultimately applied several months later using the impairment rating to determine claimant's entitlement to permanent partial disability benefits when there is no question about a work injury being incurred and causal connection existing between the impairment and work injury. Not only did defendants wait before they got another impairment rating, but it is obvious in their choice that they were hoping for and the odds were with them that they would in fact get a lesser rating. Dr. Boulden is by no means considered a claimant's doctor. In further support of the undersigned's finding herein, joint exhibit 10 (August 15, 1989 letter by defendant insurance carrier) shows that at that time they accepted Dr. Boulden's previous 10 percent rating and paid Page 7 benefits based thereon. Why they did not update their payments when Dr. Boulden increased his rating is unknown to the undersigned. The undersigned is also concerned, as previously mentioned, that the defendant insurance company led the claimant to believe that the doctor gave an industrial rating. CONCLUSIONS OF LAW 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, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with Page 8 regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). 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. Iowa Code section 86.13 permits an award of up to 50 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendants' delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonably in denying payment. See Stanley v. Wilson Foods Corp., File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). It is further concluded that: Claimant incurred a work injury on August 18, 1988, that arose out of and in the course of her employment that caused her to have a two disc surgery and a functional impairment and a 30 percent industrial disability. Defendants did not act reasonably and delayed in increasing their benefits when the criteria of their authorized doctor upon which they originally relied was increased and defendants failed to follow the same criteria in providing claimant with increased benefits. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant one hundred fifty (150) weeks of permanent partial disability benefits at the weekly rate of one hundred forty-seven and 42/100 dollars ($147.42) beginning March 8, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties agreed that defendants previously paid fifty (50) weeks of permanent partial disability benefits. They also paid some healing period benefits but they were not in dispute and that issue has been resolved. Defendants shall pay claimant fifteen (15) weeks of penalty benefits at the rate of one hundred forty-seven and 42/100 dollars ($147.42) with the interest on the penalty benefits running from the date of filing of this decision. That defendants shall pay interest on benefits awarded Page 9 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 May, 1994. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr James L Spellman Attorney at Law 1300 Locust St Des Moines IA 50309 Mr Frank T Harrison Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 5-1803; 5-4000.2 Filed May 18, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ BARBARA ALITZ, : : Claimant, : : vs. : : File No. 886305 HY-VEE FOOD STORES, INC., : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ 5-1803 Found claimant had a 30% industrial disability. 5-4000.2 Found claimant entitled to 15 weeks of penalty benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ RICHARD CAMPBELL, Claimant, vs. File No. 886364 HAWKEYE ERECTION COMPANY, A R B I T R A T I O N Emploer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on February 14, 1995, at Cedar Rapids, 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 June 23, 1988. The record in the proceeding consists of the testimony of the claimant; claimant's wife, Barbara Campbell; Kelly Dawson; Larry Graf; joint exhibits 1 through 11 and defendants' exhibits A, B and C (A consisting of two videos). ISSUES The issues for resolution are: The extent of claimant's permanent disability and entitlement to disability benefits, if any. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence finds that: Claimant is 47 years old, finished the ninth grade and ultimately got his GED while in Viet Nam in the Marines. The union in which he was a member required claimant to get a regular high school diploma, which he then ultimately did. In June 1980, he went to the Kirkwood Community College and got an associate degree in construction technology, which trained him to manage jobs, do construction, look at prints (taking off the prints the materials that would have to be used to do the construction) and basically analyzing the job. Claimant looked older to the undersigned than his age, but claimant's movements and activity appeared to be that of a person younger than his age. Claimant knelt while testifying rather than sitting in the chair, as he indicated he couldn't sit in the witness chair because of his back. When not testifying, claimant sat near the back of the courtroom on the floor with his legs stretched out and his back against the wall. On occasions he moved around rather swiftly, either to talk to his attorney or to get up and down from his position on the floor. Claimant seemed to perform this type of action with ease and with no restraint, no hesitancy and no pain. Claimant went over his medical history prior to June 23, 1988. He related certain incidences of injuries but contended there was no continuing problem resulting therefrom. Claimant related an incident around July 9, 1993, in which he hurt his shoulder. He related the medical care and physical therapy and contended that he continues to do the exercises that were recommended at the physical therapy. He indicates his shoulder is okay. Claimant related his work history as an iron worker. He is a journeyman reinforcing person. Although he did some steelwork in July 1967, on a 30-day leave from Viet Nam, he did not receive his union card until September 1971. Because of his dad and step-grandfather being iron workers, he began his iron work and did not go through the apprentice step. He indicated he did not have to because there was so much work to do. If he had gone through the apprentice procedure he would have had a journey book and be able to do all types of iron work. As it is now, he can only do the limited iron work like being a reinforcing person. He indicated there was no problem working as long as he worked out of his own local. He indicated he had worked for approximately the last eight years for the defendant, but has not always been steady as it depended on the number of jobs. Some years were better than others. He described the re-bars or rods that would have to be lifted, which varied in weight and size depending on the situation. He referred to joint exhibit 10. Claimant described how he injured himself on June 23, 1988, and how he felt as a result of this injury and fall on that date. Claimant testified as to the medical attention he obtained. Claimant quit the defendant employer in September 1989, contending that he couldn't do the work any more, as he was taking more pain pills, up to three times a day. He has done no iron work since then, but related some work he has done like telemarketing. Claimant went to Kirkwood Community College and completed a construction technology course in May 1992. (Joint Exhibit 6, page 35) Claimant referred to joint exhibit 7, as to the various jobs at which he applied for work or sent out resumes. He indicated he had a few interviews but no job offers. These were in the construction area. He testified as to other areas of work in which he sought employment, including Pizza Hut, Hardies, etc. He contends he is still in a lot of pain. He swims about one and one-half miles a day, five times a week, one to one and one-half hours per day. He says he has a problem standing, his foot goes numb and he has a pain in the low back area. He contends because of his injury that he now waddles when he walks. He indicated that his seat in his car is broken and he drives it. He indicated that with his seat broken it helps him drive, rather than if the seat was not broken. It was hard for the undersigned to imagine this situation and how such a condition could help the claimant rather than do him harm. Claimant has seen the video that was taken on June 6, 1994, which claimant seemed to down play the same. He acknowledges he has a boat but doesn't fish much more than maybe three or four times a year. He indicates his boat has a seat that is anchored to the boat and that he has trouble sitting. He acknowledged that he told the vocational counselor that he could not pull anything and that he has trouble bending and climbing. He last saw Dr. R. F. Neiman, M.D., in December but that was before Dr. Neiman had seen the video tape. Mr. Kelly Dawson, an investigator, testified as to his investigation of the claimant after his company was hired by the defendant. He described the various videos it seems he took of the claimant and the various things that he saw claimant doing; of course, the videos will also speak for themselves. Larry Graf has owned the defendant corporation since 1972. He has known the claimant since the late 70's or early 80's. He also knew claimant's dad as an iron worker. He told the claimant when he returned to work that he could work at his own pace, doing things as he felt he could do and left it up to the claimant as to how long he could work. He said he knew claimant's restrictions. He told the claimant that if claimant needed help with his work or what he was doing he could hire someone to help. It appears from the testimony that claimant had also gotten someone to help him earlier. Mr. Graf indicated he has people working with disabilities including one with an artificial leg, and another with a fractured vertebra who wears a brace. He says he has work available for people with a 20 to 30-pound weight limit. He was familiar with how claimant walked before he was injured and indicated that he walks the same now as he did then. He indicated he always waddled. He has seen the videos that were taken and he emphasized claimant could continue working for him if he wanted. He said an iron worker now is making approximately $22.00 per hour and that if claimant had continued working he would be working at that rate. He emphasized that he did not ask claimant to leave and he would have continued to have claimant work for him if the work was there to do. After the defendant rested, claimant was recalled concerning the video, etc. Claimant tried to explain away what was evident on the video or what the investigator observed. Claimant's wife was then called in rebuttal. Although claimant said he never waddled before his injury, his wife said he always waddled; but that he is walking a little different now. She contends he would be doing iron work now if he could. The undersigned might add that in various places in the testimony of the claimant and his wife, the undersigned was not impressed with the testimony. He sees credibility as being a considerable issue in this case. Claimant moved and hopped around the courtroom from standing, to sitting, to crawling with great agility. He would sit against the wall with feet out in front of him, but on various occasions would hastily jump up and crawl a few feet to talk to his attorney and then go back into the similar position. A December 15, 1988 report of the Spine Diagnostic and Treatment Center resulting from a functional capacity evaluation reflects that Dr. Ernest M. Found, Jr., M.D., felt that claimant's back situation was essentially stabilized and that there was no continued serious, acute process going on. The compression fractures at lumbar 2 and 3 vertebras essentially have healed. Physical rehabilitation would be the answer to his goals in returning to full-time employment. (Jt. Ex. 2A, p. 13) Claimant completed the rehabilitation program for chronic low back pain and was given some temporary lifting limits which should improve as claimant was to continue his exercise and aerobic activity. Thirty pounds repetitive lifting was one of the restrictions. This March 3, 1989, report also indicated that claimant was within his capabilities to try and return to iron work as a temporary situation. At that time they could not support the fact that he was unable to return to any type of gainful iron work or construction activity. The compression fracture was completely healed and that situation would not impede his ability to return to an active and normal lifestyle. (Jt. Ex. 2A, p. 18-20) In June 1989, claimant was working two to five hours per day attempting to work towards an eight hour schedule. Said report indicates that the diagnostic clinic continues to support full-time employment for claimant and felt he was capable of such. (Jt. Ex. 2A, p. 25) In looking at Dr. R. F. Neiman's records, it appears that the doctor had substantial restrictions on the claimant and seemed to be impressed with his medical or disability condition. The doctor then was shown the surveillance tape and that obviously had a big effect on the doctor's opinion; he did substantial modification, substantially amending claimant's restrictions. It is obvious also from the record that the claimant and claimant's attorney were surprised by the surveillance tape and seemed to talk to the doctor as to returning back to his prior opinions. The undersigned might add that he can see where the doctor was concerned and would modify his prior opinions. After not only seeing the video tape and witnessing the actions of the claimant in court, the undersigned has severe questions as to this claimant's real condition and ability to work, as the claimant seeks to be determined to be totally disabled. (Jt. Ex. 4A, pp. 20-20a) On January 17, 1995, Dr. Neiman opined that claimant had a 10 percent impairment as a result of his June 23, 1988 injury with the defendant employer and had an acute compression fracture of the L2 level. His restrictions are reflected in the December 23, 1994 office record. (Jt. Ex. 4A, pp. 20-20a) Dr. Neiman's testimony that he gave in another lawsuit involving this claimant as the plaintiff against a third party, is represented by joint exhibit 4B. One must look at the most current reports of the doctor to get a more accurate picture of claimant's current situation. The undersigned might also add that this agency's experience would indicate that Dr. Neiman is known to be a doctor whose services are sought out by claimants. Joint exhibit 5A are the vocational rehabilitation records of a Kent Jayne, who, it appears, was initially hired by the claimant in regard to the third party litigation. The undersigned sees nothing in that report concerning the employer's willingness to accommodate claimant and his actual accommodation before claimant quit. Mr. Jayne concluded that he didn't think claimant was competitively employable. Mr. Jayne also testified in the third party action in the District Court for Johnson County (which transcript is joint exhibit 5B) with the jury trial being August 20, 1993. The record is obvious that claimant has been in substantial litigation over a period of time involving different courts or venues. In joint exhibit 6, page 3 it is of interest in the area of litigation financial in which the report indicates that claimant anticipated recontacting the same lawyer if he runs into any problems with questioning the feasibility of returning to his old job and if this has an impact on his workers' compensation or settlement amount. The undersigned is pointing this out in that the undersigned has felt, in hearing the testimony and reviewing this evidence, that once the litigation is over this claimant may have more incentive to try to work and to get a job. It is unfortunate he didn't continue working at the job he had under the circumstances in which the employer was willing to accommodate him. There are very few jobs paying that much. Even if claimant worked a few hours a day he would have made substantially more than he is making now, and substantially more than he would working at a full-time job at the minimum wage or $5.00 for which he anticipates he could work or which would be the most he could get if working at some other job. There is mention in the record that in around August or September 1992, claimant stepped out in front of a car and was knocked unconscious but contends that there was no negative residuals from this accident. It also has been reflected in various places in the record that claimant has an asthmatic condition and that certain fumes and dust aggravates that. That is not an issue herein, nor is there any evidence that the work caused claimant asthmatic condition. It is obvious that if claimant stays away from such sources that he would not be bothered by his asthma for which he is taking medication. (Jt. Ex. 6, pp. 17, 21-22) Claimant has been out of work for a considerable period of time. During this time he has obtained additional education. Claimant has produced records showing he has attempted to find work. It would also appear that claimant has related his physical condition at least regarding some of the places at which he sought employment. Although the Americans With Disabilities Act was not in effect during some of those earlier job seeking efforts, the claimant does not appear to be now aware of the fact that he need not disclose his alleged physical disabilities or complaints before he is offered a job. The undersigned believes this could make a big difference in the claimant obtaining employment. Claimant has received 225 weeks of permanent partial disability benefits at $377.58 a week, which would amount to a 45 percent permanent partial disability. Obviously, claimant is seeking more and it appears he feels he is totally disabled. Taking all the evidence into consideration, the demeanor and actions of this claimant, the undersigned finds that this claimant has been already compensated adequately for the extent of his June 23, 1988 work injury and is entitled to no more workers' compensation benefits on the current status of the record. The undersigned believes that when this litigation ends claimant may have more incentive to work and obtain a job. The undersigned emphasizes again that the employer was willing to accommodate and was accommodating claimant and he quit. Although he claims he quit because of pain, it is not unusual for an iron worker, after a day of work, to have aches and pains even though one would not have an injury. For the amount of hourly pay an iron worker gets, particularly when they are a union member as claimant was, one should endure some pain in order to receive the amount of pay an iron worker gets. Claimant has been paid based on a 45 percent industrial disability and would expect to have some residuals because of that extent of an industrial disability. Claimant is young and it is of no benefit of the claimant to linger around and further lose his incentive to work. Claimant obviously can endure pain, if pain he has, in his driving, fishing and other activities. It would be much better for the claimant to attempt to put such effort into employment. He has done well when he has taken up some additional educational endeavors. Taking into consideration claimant's pre- and post-medical history, work history, education, the nature of injury, the extent of his impairment, any restrictions, his motivation, location and severity of his injury, his age and the employer's willingness to accommodate claimant and claimant's in fact, ending up quitting work, the undersigned finds that claimant has been compensated already to the extent of his industrial disability. As already stipulated claimant has received 225 weeks of permanent partial disability benefits, which would be a 45 percent industrial disability. CONCLUSIONS OF LAW 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 the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). 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. It is further concluded that claimant has a 45 percent industrial disability and has already been adequately compensated in the amount of a 45 percent industrial disability or 225 weeks of permanent partial disability benefits at the rate of $377.58 and is entitled to no more compensation. Claimant therefore, takes nothing further on this case. ORDER THEREFORE IT IS ORDERED: Claimant takes nothing further in this case. The costs are equally divided among the parties. Signed and filed this _____ day of March, 1995. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas Wertz Attorney at Law 4089 21st Ave SW STE 114 Cedar Rapids, Iowa 52404 Mr. Steven E. Ort Attorney at Law 121 West Main Street New London, Iowa 52645 5-1803 Filed March 28, 1995 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ RICHARD CAMPBELL, Claimant, vs. File No. 886364 HAWKEYE ERECTION COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ 5-1803 Found claimant is not entitled to any more than the 225 weeks of permanent partial disability paid at $377.58 per week. Claimant took nothing further. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JERRY REIFENSTAHL, : : Claimant, : File No. 886573 : vs. : A R B I T R A T I O N : SECOND INJURY FUND OF IOWA, : D E C I S I O N : Defendant. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Jerry Reifenstahl, claimant, against the Second Injury Fund of Iowa, defendant, for benefits as the result of an injury that occurred on May 20, 1988, and an alleged previous injury which occurred on April 28, 1976. A hearing was held in Cedar Rapids, Iowa, on November 19, 1991. Claimant was represented by Philip Vonderhaar. Defendant was represented by Steven K. Young. The record consists of the testimony of Jerry Reifenstahl, claimant; and joint exhibits 1 through 21, 23 and 25 through 27. Defendant objected to joint exhibit 22 for the reason claimant's counsel failed to give timely notice of an expert witness. Claimant resisted the objection. Defendant's objection was sustained and joint exhibit 22 was not admitted into evidence. The exhibit was received as an offer of proof at the request of claimant (transcript pages 3-12). The deputy excluded joint exhibit 24, a deposition of claimant, for the reason that claimant was present in court to testify at the time of the hearing. Both parties were offered the opportunity of using the deposition in cross-examination or redirect examination, but neither attorney chose to do so (tr. pp. 26-28). Defendant objected to the live testimony of Dennis Colvin for the reason that claimant did not give timely notice of the witness. Claimant resisted the objection. The deputy sustained the objection and excluded the live testimony of Dennis Colvin, but claimant was permitted to make an offer of proof on the record out of the presence of the deputy (tr. pp. 12-24). Both attorneys submitted a brief written description of disputes at the time of the hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. PRELIMINARY MATTERS Page 2 Claimant filed two petitions on the same day, alleging two different causes of action which occurred on the same injury date and both actions were designated as file number 886573. At the time of the hearing, claimant dismissed the petition alleging a subsequent right hand/arm injury on May 20, 1988, and a previous left hand injury in 1965 and 1968. This decision determines the rights and liabilities of the parties on the remaining petition which alleges a subsequent left hand/arm injury on May 20, 1988, and a previous right arm injury on April 28, 1976 (tr. pp. 24-26). STIPULATIONS The parties stipulated: (1) that an employer-employee relationship existed at the time of the injury; (2) that claimant sustained an injury on May 20, 1988, that arose out of and in the course of employment with employer; (3) that the commencement date of permanent partial disability benefits is December 8, 1989; and (4) that the rate of compensation, in the event of an award, is $201.30 per week. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained a previous injury on April 28, 1976, to his right hand or arm; Whether that injury, if any, was the cause of permanent disability; Whether the injury of May 20, 1988, to his left hand or arm was the cause of permanent disability; and Whether the Second Injury Fund of Iowa is liable to claimant for any benefits pursuant to Iowa Code section 85.64, and if so, the extent of benefits for which it is liable. FINDINGS OF FACT previous injury-April 28, 1976 It is determined that claimant sustained an injury on April 28, 1976, to his right hand and arm which arose out of and in the course of employment with employer and that the injury was the cause of permanent impairment and disability. Claimant's testimony; the records of Iowa Musculoskeletal Center, P.C., exhibit 2; the reports of Leland Hawkins, M.D., exhibit 3; the report of James LaMorgese, M.D., exhibit 4, page 11; the report of Richard F. Neiman, M.D., exhibit 6, page 1; the reports of James H. Dobyns, M.D., of the Mayo Clinic, exhibit 11, pages 1 through 4; the reports of Walter J. Hales, M.D., exhibit 13, pages 7 through 11; and the report of C.B. Lake, M.D., exhibit 16; all verify that claimant injured his right wrist on April 28, 1976, and this injury resulted in a fusion of his right wrist at the Mayo Clinic. There is no evidence to Page 3 the contrary. Defendant did not dispute this injury. Dr. Dobyns at the Mayo Clinic recorded on September 2, 1977, that claimant fell approximately six feet off a dock onto his outstretched right hand on April 28, 1976, while at work. A fusion of the right wrist was performed in December of 1976 which included (1) removal of posttraumatic loose body; (2) reduction of posttraumatic instability with maintenance by tendon graft reconstruction and temporary internal stabilization with multiple (two) Kirschner wires; and (3) partial radial styloidectomy. Postsurgery, claimant developed an infection which complicated his recovery and increased his impairment (exhibit 11, pages 1-3). On December 20, 1977, Dr. Dobyns estimated that claimant sustained a 35 percent permanent impairment to his right upper extremity. As for restrictions, he stated that heavy or repetitive use of his right hand should be avoided (ex. 11, p.4). Claimant did return to work in September of 1987 and continued to work as a checker within his restrictions until the second injury on May 20, 1988. Wherefore, it is determined that claimant sustained an injury on April 28, 1976, to his right hand and arm which arose out of and in the course of employment with employer and that the injury was the cause of permanent impairment and disability. second injury-may 20, 1988 The parties stipulated that claimant sustained an injury on May 20, 1988, that arose out of and in the course of employment with employer. Even prior to the selected injury date of May 20, 1988, claimant voiced bilateral upper extremity symptoms to Dr. Hales on October 5, 1987, and again after the selected injury date on May 23, 1988 (ex. 2, pp. 4 & 5). Claimant was actually examined by L. Remeika, M.D., on May 20, 1988. Dr. Remeika summarizes and confirms the work-related health history of claimant to include the injury of April 28, 1976, discussed in the previous section of this dicision. Dr. Remeika stated: He is a 50 year old employee who comes in because he has pain in his right wrist. Patient has a very complicated past history. He lost three fingers on his left hand years ago. Several years ago in the right arm he fractured the navicular, which apparently resulted in a serious forearm infection with osteomyelitis. Had an apparent fusion of the radius and ulna. Since that time he has had difficulty in moving the arm, especially the wrist in flexion or extension with only approx. 5o in each direction. He started back to work in 9/87 on a light duty job, which is the only thing he is allowed to do. He works in the cold cuts room and moves his wrist up and down to Page 4 weigh the coldcuts [sic]. He does this repeatedly all day; works about 25 hrs. a week. (exhibit 12, page 1) With respect to the injury of May 20, 1988, Dr. Remeika referred claimant to Dr. Hales on May 23, 1988. On June 1, 1988, Dr. Hales performed a release of the ulnar and median nerves on the right wrist (ex. 13, p. 1). On October 12, 1988, Dr. Hales resected a left ulnar artery aneurysm; performed an interposition vein graft; and performed a prophylactic carpal and Guyon's canal release (ex. 13, p. 2). In rating the right hand carpal tunnel and ulnar tunnel condition, Dr. Hales stated that claimant was entitled to a 5 percent permanent impairment of the right upper extremity because of sensory deficit. His loss of range of motion and grip strength was due to the prior right wrist fusion that occurred as a result of the injury on April 28, 1976 (ex. 13, p. 9). Dr. Hales determined that claimant was entitled to a 5 percent permanent impairment for the surgery performed to correct the left little finger aneurysm (ex. 13, p. 10). Claimant and employer entered an agreement for settlement which was approved on July 3, 1990. In this document, the parties agreed that claimant sustained a bilateral disability which should be compensated under Iowa Code section 85.34(2)(s) and the Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983) decision. In this settlement agreement, the parties agreed that claimant was entitled to 30 weeks of permanent partial disability benefits for the injury of May 20, 1988 (ex. 26, p. 2). With respect to the right wrist fusion which occurred as a result of the April 28, 1976, previous injury, Dr. Hales determined that claimant sustained a 5 percent permanent impairment of the upper extremity due to half of the loss of the dorsiflexion of his right wrist and another 5 percent permanent impairment of the right upper extremity for loss of half of the volar flexion of his right wrist. Dr. Hales concluded, "In other words, there is a total of 10% impairment of that [right] upper extremity secondary to loss of wrist motion because of subsequent infection and necessary partial intercarpal arthrodesis done by the Mayo Clinic." (ex. 13, p. 10). Wherefore, it is determined that claimant sustained an injury on May 20, 1988, to both hands and both arms, which arose out of and in the course of employment with employer which resulted in both permanent impairment and permanent disability. Defendant contends in its hearing brief and in argument that an injury under Iowa Code section 85.34(2)(s) is one injury and cannot be the basis of a claim against the Second Page 5 Injury Fund because there is no separate injury. This is not correct. An injury which occurs simultaneously or nearly simultaneously to two members can be the basis as a separate injury for a claim against the Second Injury Fund. Saylor v. Swift and Company, Thirty-fourth Biennial Report of the Industrial Commissioner, 282, 285 (1979). Claimant Saylor had a prior loss to his left leg and his second injury involved both legs. The decision held, "Nothing in section 85.64 bars the applicability of the statute if the injury happens to be two such members." Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-4, footnote 4, page 143. liability of second injury fund It is determined that claimant has met the threshold requirements for a claim against the Second Injury Fund of Iowa because claimant has sustained the burden of proof by a preponderance of the evidence that he sustained an injury to his right hand and arm on April 28, 1976, as the previous injury, and he sustained a second injury to both hands and arms on May 20, 1988, under Iowa Code section 85.34(2)(s), Saylor, Thirty-fourth Biennial Report of the Industrial Commissioner 282, 285 (1979); and each of these injuries separately resulted in permanent impairment and disability. Iowa Code section 85.64; Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-5 at page 143. It is further determined that claimant has sustained an industrial disability from the combined effect of the two injuries of 35 percent to the body as a whole and is entitled to 175 weeks of permanent partial disability benefits; minus 25 weeks, which is the value of the previous injury of April 28, 1976, based upon a 10 percent permanent impairment of the right upper extremity as determined by Dr. Hales; and minus 30 weeks, as the value of the second scheduled member injury, based upon the agreement for settlement in the amount of weeks that claimant was paid and did receive for this injury of May 20, 1988. Thus, the net liability of the Second Injury Fund of Iowa is 120 weeks (175 weeks minus 25 weeks minus 30 weeks equals 120 weeks). Claimant, born April 29, 1938, was almost 50 years old at the time of the second injury. Claimant's industrial disability is increased because the injury occurred near the peak point of his earnings career. A disabling injury at age 50 results in a greater loss of earnings than it would for an older or younger employee. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision 1989). Claimant has a high school education which increases his employability. Claimant is capable of retraining in sedantary work if he develops a motivation to do so. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Page 6 Claimant has demonstrated no motivation for further employment. He has made no job search of any kind. His motivation is possibly influenced by the fact that he receives $863 per month in social security disability benefits and another $261.36 per month in a disability pension from employer. This is a total monthly income of $1,124.36. If he engaged in productive employment he would probably lose his social security disability benefits. The vocational rehabilitation counselor that claimant talked to found that he had no motivation to return to work. Claimant's rejection of vocational rehabilitation assistance and his failure to seek it out on his own accord with the State of Iowa or otherwise, is a factor which does not increase the amount of his industrial disability, but rather tends to decrease it. McKelvey v. Dubuque Packing Co., Thirty-third Biennial Rep., Iowa Indus. Comm'r 227 (1976), Rapp v. Eagle Mills, Inc., Thirty-fourth Biennial Rep., Iowa Indus. Comm'r 264 (1979); Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88 (1984). It is difficult to determine the precise amount of claimant's industrial disability because of his failure to attempt any employment in the competitive employment market. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). An employee seeking workers' compensation would do well to make a diligent attempt to find employment. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Company, Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Claimant's failure to cooperate with the vocational rehabilitation evaluator and to lose weight as recommended by physicians, are factors which tend to show lack of motivation and therefore, reduce industrial disability. McDonald v. Pulley Freight Lines, I-1 Iowa Industrial Commissioner Decisions 148 (1984); Erickson v. Iowa Beef Processors, I-4 Iowa Industrial Commissioner Decisions 821 (App. Dec. 1985); Larkin v. Newport St. Paul Cold Storage, I-4 Iowa Industrial Commissioner Decisions 945 (1985). Employers are responsible for the reduction in earnings capacity caused by the injury, they are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Claimant's apparent retirement is another factor that can be taken into consideration which tends to reduce industrial disability. Swan v. Industrial Engineering Equipment Co., IV Iowa Industrial Commissioner Report 353 (1984); Houseman v. Mid-America Lines, Inc., I-4 Iowa Industrial Commissioner Decision 888 (App. Dec. 1985); McDonald v. Dubuque Packing Co., I-1 Industrial Commissioner Decisions 152 (1984); Card v. H & W Motor Express Co., II-1 Iowa Industrial Commissioners 292 (1984); Vogel v. Dicksons Wholesale Meats, Inc., II-1 Iowa Page 7 Industrial Commissioner Decisions 324 (1984). At the same time, claimant's lack of motivation and retirement are caused in large part by the fact that the employer had no work which claimant could do. If employer had absolutely no work which this career employee could perform within his restrictions, it is evidence of a substantial industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Pigneri v. Ringland-Johnson-Crowley, file number 838742 (App. Dec. 1991). Employer told claimant they had no work he could do within his restrictions. Refusal of an employer to employ an injured employee is strong evidence of lack of employability. Professor Larson makes a point which applies to this particular case, "At the outset, one might suppose that the refusal of defendant-employer himself to employ the claimant would be the strongest kind of evidence against that employer." Then he asserts what as a practical matter ought to be obvious, "It is hardly necessary to labor the inconsistency of permitting an employer to fire a man for physical defects caused by his own employment conditions, and then to disclaim compensation liability by presenting medical evidence that the man is not really disabled after all." 2 Larson, Workmen's Compensation Law, section 57.61(b) at pages 10-173 and 10-176. Dr. Hales and a number of other doctors, stated that claimant was foreclosed from his previous employment. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Before placing too much emphasis on claimant's apparent forced retirement and lack of motivation, it should be remembered that claimant was a career employee of this employer for a total of 24 years from 1964 to 1988. Also, even though employer employed some 1500 people, they could not find any work claimant could do, but rather offered him a disability income pension. Claimant's prior employments have been manual labor-types of employments and sales-types of employments. Claimant is obviously foreclosed from manual labor-types of employment because various functional capacity examinations as well as Dr. Hales recommended against heavy work and lifting more than 20 pounds. At the same time, claimant has had numerous sales positions and there appears to be no reason why he could not engage in sales activities if he chose to do so. Claimant contends that he is limited in writing with his dominant right hand because of the right wrist fusion and the carpal tunnel and ulnar tunnel incisions. Sales persons are usually required to write up orders and other items of business. Claimant complained of much tenderness, numbness and loss of feeling in his upper extremities. Claimant demonstrated that the surgical incision on his left wrist goes up into his arm by approximately two inches. Claimant has been able to perform his house work and yard work at home. Page 8 Claimant admitted that he has made no attempt whatsoever to find any employment. Wherefore, based upon () the seriousness of the injury to his right arm and hand that resulted in a fusion and left his right upper extremity sensitive to heat and cold and restricted him from heavy lifting;() the seriousness of the second injury and the multiple nature of the injury and the surgeries; () the impairment ratings issued by the doctors; () the restrictions imposed on claimant's ability to work; () the fact that claimant is foreclosed from his career employment of 24 years for employer or its successors; () claimant's good work ethic prior to the second injury; () the fact that employer has no work that claimant can do out of 1500 jobs for a career employee of 24 years; () the fact that employer voluntarily arranged for claimant to receive a disability pension; () the fact claimant has demonstrated no motivation to work; () the fact that there are sedentary or sales jobs that claimant could possibly perform if he had the motivation to do so; () the fact that claimant is retired with two disability income checks that total $1,124.36; () all of the foregoing factors; () and based upon all of the factors used to determine industrial disability; Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); and () based upon agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 35 percent industrial disability to the body as a whole and is entitled to 175 weeks of permanent partial disability benefits minus the value of the previous injury of 25 weeks and the value of the second injury of 30 weeks which claimant was paid and did receive. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: Page 9 That claimant sustained a previous injury to his right hand and arm on April 28, 1976, which arose out of and in the course of employment with employer; That the injury of April 28, 1976 was the cause of permanent impairment and disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant sustained a second injury on May 20, 1988, to his left hand and arm within the context of the words "caused by a single accident" of Iowa Code section 85.34(2)(s) which arose out of and in the course of employment with employer; Himschoot v. Montezuma Manufacturing, file numbers 672778 and 738235 (Appeal Decision April 15, 1988), aff'd, No. _______, (Iowa Ct. App. February 22, 1990); Kebernik v. Thatcher Plastic Packaging, file number 704973 (Arb. Decn., December 22, 1988); Jones v. Lamoni Products, file number 800310 (1991) (currently on appeal). That the injury of May 20, 1988, was the cause of permanent impairment and disability; Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965), Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945); That an injury to two members under Iowa Code section 85.34(2)(s) qualifies as a separate second injury under Iowa Code section 85.64. Saylor, Thirty-fourth Biennial Rep. Indus. Comm'r 282, 285. That claimant has sustained an industrial disability of 35 percent to the body as a whole and is entitled to 175 weeks of permanent partial disability benefits; minus 25 weeks which is the value of the scheduled member disability for the injury of April 28, 1976; and minus 30 weeks of benefits which is the value of the scheduled member injury of May 20, 1988, resulting a net liability of the Second Injury Fund of 120 weeks of permanent partial disability benefits. ORDER THEREFORE, IT IS ORDERED: That defendant Second Injury Fund pay to claimant one hundred twenty (120) weeks of permanent partial disability benefits at the stipulated rate of two hundred one and 30/100 dollars ($201.30) per week in the total amount of twenty-four thousand one hundred fifty-six dollars ($24,156) commencing on December 8, 1989, as stipulated to by the parties. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the costs of the attendance of the court reporter at hearing, as well as the transcript of the hearing, are charged to defendant pursuant to rule 343 IAC 4.33 and Iowa Code section 86.19(1). That defendant file claim activity reports as requested by Page òòò 10 this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Phillip Vonderhaar Attorney at Law 840 5th Ave Des Moines, IA 50309 Mr. Steven K. Young Assistant Attorney General Hoover State Office Bldg. Des Moines, IA 50319 51100 51108.50 51401 51402.20 51402.30 52209 3200 53200 51803 Filed December 20, 1991 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JERRY REIFENSTAHL, : : Claimant, : File No. 886573 : vs. : A R B I T R A T I O N : SECOND INJURY FUND OF IOWA, : D E C I S I O N : Defendant. : ___________________________________________________________ 51100 51108.50 51401 51402.20 51402.30 52209 It was determined that claimant sustained an injury to his right hand and arm on April 28, 1976, which caused permanent impairment and disability and a second injury to both his right and left hands and arms on May 20, 1988, which caused permanent impairment and disability which arose out of and in the course of employment with employer. 3200 It was determined that a bilateral injury under Iowa Code section 85.34(2)(s) qualified as a separate second injury under Iowa Code section 85.64. 53200 51803 For Second Injury Fund purposes, it was determined that claimant sustained a 35 percent industrial disability from the combined effects of both injuries. From this was subtracted the value of the first and second scheduled member injuries. Claimant was awarded 120 weeks of permanent partial disability benefits (175 weeks minus 25 weeks for the previous injury and minus 30 weeks for the second injury results in 120 weeks of benefits from the Second Injury fund.