BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JOHN B. COOK, : : Claimant, : : vs. : : File No. 888644 RUSSELL'S READY MIX, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, John B. Cook, against his employer, Russell's Ready Mix, and its insurance carrier, General Casualty Insurance company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on June 10, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa, on July 28, 1993. A first report of injury has been filed. The record consists of the testimony of claimant, Belinda Kline, James Rogers, and Jan Hardcopf-Bickley, as well as of claimant's exhibits 1 through 58 and defendants' exhibits A through N. Both parties filed briefs subsequent to hearing. ISSUES Pursuant to the hearing report and the oral stipulations of the parties at hearing, the parties have agreed to the following: . An employer-employee relationship existed between claimant and Russell's Ready Mix on June 10, 1988; . Claimant did receive an injury which arose out of and in the course of employment on June 10, 1988; . Claimant's injury caused a period of healing period or temporary total disability; . Claimant had gross weekly earnings of $423.40 and was single and entitled to one exemption on June 10, 1988, entitling claimant to a weekly rate of $250.45; . Defendants are entitled to a credit for 265 weeks of benefits paid claimant, all benefits paid at the applicable rate; and Page 2 . Medical fees charged were fair and reasonable and treatment for which those fees were charged was reasonable and necessary treatment. Issues remaining to be decided are: . The nature and extent of claimant's disability entitlement, including the questions of the extent of claimant's entitlement to healing period benefits and the extent of claimant's entitlement to permanency benefits, a question which also involves the issue of whether claimant is permanently and totally disabled; and . Whether claimant is entitled to payment of certain medical benefits as causally connected to his injury and authorized by defendants. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is 43 years old and a high school graduate. On June 10, 1988, claimant sustained an injury arising out of and in the course of his employment when a road grader ran over him. Claimant sustained multiple rib fractures, multiple pelvis fractures, a displaced sacrum fracture, as well as a chest contusion with hemithorax on the left, abdominal trauma with laceration of the spleen and perineal tear. Claimant subsequently developed an acute subdural hematoma on July 4, 1988 for which he was surgically treated with a left frontoparietotemporal craniotomy. Claimant has not returned to work since his injury. Claimant reported that his condition improved through summer 1989. He subsequently experienced more intense hip and back pain with radiation into the left lower extremity. His treating physician, Quentin J. Durward, M.D., referred claimant to Alan R. Huson, M.D., a neurosurgeon, and subsequently to David G. Kline, M.D., a neurosurgeon. Defendants initially delayed in authorizing the referrals. Dr. Kline, on June 24, 1992, performed a left sacral laminectomy at S2 through S4 with external neurolysis of the sacral nerve roots. Claimant reported that the June 1992 surgery was initially successful. He further reported that after approximately three months he had a return of symptoms similar to his presurgery symptoms albeit not as intense. He described his symptoms as morning stiffness and "dull ache" that intensifies over time. On September 19, 1990, Dr. Durward prescribed a TENS unit for claimant. Claimant personally paid costs equally $562 for the TENS unit. Claimant characterized the TENS unit as having been initially helpful in relieving his pain but as becoming less helpful over time. Claimant reports problems with memory and concentration which he relates to the subdural hematoma and subsequent surgery. While recovery from his physical injuries, claimant enrolled in basic electronics and refresher math Page 3 courses. Claimant finished the electronics class. Claimant did not finish his math course. Claimant reported that pain related to driving from his home in Remsen to Sioux City for his courses and related to sitting while in class as well as difficulties with concentration which claimant related to his subdural hematoma were all factors in his failure to complete the mathematics course. Claimant looked for work subsequent to June 1992. He found none. Claimant reported following up on between 20 and 30 job leads obtained either on his own or through Crawford Rehabilitation or through Jan Hardcopf-Bickley and Associates. He stated that he had no job offers as a result of those leads. Claimant tried to tend bar and tried to do floral shop delivery. He could handle neither of those jobs in that he felt they required that he be on his feet too much. Claimant characterized himself as able to stand for 10 minutes, walk for 15 to 20 minutes, sit for 20 minutes, and to drive within 20 miles of his home. Claimant did not follow-up on job leads in the Sioux City area. Sioux City is approximately 30 miles from claimant's home in Remsen. Claimant did not feel that he could handle driving to and from Sioux City as well as engaging in job activity there. Claimant has difficulty remembering what activity he had been engaged in after he is interrupted or his routine changes. He needs to make notes as to activities he needs to do. Dr. Durward performed claimant's craniotomy and treated claimant subsequent to that procedure. Dr. Durward, in his deposition taken January 14, 1991, characterized claimant has having made a very rapid recovery from his subdural hematoma and as having some residual memory problems. Dr. Durward referred claimant to James R. Hairston, Ph.D., apparently a neuropsychologist, for evaluation. Dr. Hairston interpreted the testing as showing that claimant had a mild deficit in both recent verbal and recent nonverbal memory. Dr. Durward, on April 13, 1989, stated claimant had occasional anomia for names but [not] other [memory] problems James T. Rogers, a vocational evaluator claimant employed, referred claimant to Thomas A. Korn, Ph.D., a certified rehabilitation counselor who limits his practice to rehabilitation of the brain injured and neuropsychological consultation. Dr. Korn characterized claimant has having an impairment in his mnestic processing, that is, with learning and memory. Dr. Korn opined that work designing and building concrete animal waste storage units would be beyond claimant's capacity. Dr. Korn opined that claimant could not return to competitive work even with memory coaching, primarily because of his physical limitations. Dr. Korn opined that claimant's best vocational options would be either a "hobby business" that claimant operated from his home or placement of claimant in a limited, selective work environment such as Goodwill Industries for a couple of hours per work day. J. Michael Donohue, M.D., first saw claimant for an Page 4 independent medical examination on June 16, 1989. That evaluation concerned claimant's left lower extremity only. Dr. Donohue felt that claimant had significant impairment as a result of neurological damage to the left lower extremity. He found significant left hip and calf atrophy and decreased sensation in the L4 and L5 dermatonal distribution with left lower extremity weakness in those dermatone distributions. Dr. Donohue opined claimant was at maximum medical improvement as of June 16, 1989, and assigned claimant a 50 percent permanent partial impairment of the left lower extremity pursuant to the 3rd edition of the AMA Guides on that date. Dr. Donohue agreed that his impairment rating did not consider claimant's complaints of persistent pain and did not consider claimant's pelvis injury, his internal injuries, his abdominal and chest injuries, or his decrease in penile function. The impairment rating also did not consider any residual effects of claimant's acute subdural hematoma and related surgery. Donohue did not believe claimant could then return to employment requiring bending, lifting, pushing, or pulling. S.W. Leafstedt, M.D., performed a fuctional capacities evaluation of claimant and released claimant for work in December 1989. Dr. Donohue next saw claimant on April 12, 1993. Claimant then complained of low back pain, left leg pain and left hip pain which claimant rated at six on a scale of ten, with ten being the most severe pain level. Per Dr. Donohue's order, claimant was enrolled in a back care rehabilitation program from April 14, 1993 through May 12, 1993. Claimant voluntarily left that program without completing it. Claimant characterized the drive to and from Sioux City as too difficult for him. Dr. Donohue stated that objectively claimant had made modest improvements in his strength while enrolled in the rehabilitation program. The doctor reported that subjectively claimant continued to complain of significant symptoms. Dr. Donohue stated that although claimant's functional capacities were largely unchanged in 1993 from those found in 1989, claimant's performance in the rehabilitation program demonstrated that claimant was capable of gainful employment. Charles Taylon, M.D., a neurological surgeon, examined and evaluated claimant on October 11, 1990. Dr. Taylon then felt that claimant's complaints [of pain] resulted from peripheral nerve injuries to the pelvis. Dr. Taylon indicated that these should probably be handled through a pain management unit and then stated that he would support Dr. Durward's treatment approach. Dr. Taylon opined that claimant had a 30 percent permanent partial impairment to the body as a whole. Jay J. Parsow, M.D., examined and evaluated claimant on May 12, 1993. Dr. Parsow opined that claimant had a 35 percent permanent partial impairment to the body as a whole which impairment included consideration of claimant's cognitive dysfunction. James T. Rogers vocationally evaluated claimant at Page 5 claimant's counsel's request. Mr. Rogers provided no job placement services nor any medical management services. Mr. Rogers felt that claimant should have comprehensive vocational assessment in a sheltered setting to determine whether claimant could work even a sedentary job on a 40-hour per week basis and to determine what effects claimant's neuropsychological deficit would have on his job performance. Mr. Rogers opined that claimant might be able to do homebound work such as craft making. Jan Hardcopf-Bickley, a vocational rehabilitation specialist defendants employed, has arranged a work simulation for claimant at the Cherokee County Soil Conservation Service. Mr. Rogers opined that he had "grave doubts" that that simulation would be successful in that he felt the job was too physical for claimant. He characterized soil conservation jobs as involving field work for 60 to 80 percent of the time and as requiring that one carry up to 30 pounds. Mr. Rogers also questioned claimant's ability to drive from his home in Remsen to the soil conservation service office. Rogers and claimant characterized the drive as a 28-mile drive. Ms. Hardcopf-Bickley characterizes the drive as a 20-mile drive. Ms. Hardcopf-Bickley stated that claimant has transferable skills. She characterized claimant as having extensive knowledge of concrete products and concrete finishing techniques; as having knowledge of grade and slope and basic surveying techniques; as having basic knowledge of electrical equipment and circuitry as well as of blueprint reading. She also stated that claimant had supervisory experience, could follow precise instructions and could use measurement instruments accurately. She noted claimant has good verbal skills. Ms. Hardcopf-Bickley reported claimant's medically related restrictions as limiting him to medium work in which he could change position frequently. Claimant has self-limited from driving for long periods and has limited his job search to within 20 miles of his home in Remsen. Ms. Hardcopf-Bickley requests her rehabilitation clients to sign a rehabilitation plan and does not begin implementation of a rehabilitation plan with a client until the client has signed the plan. Claimant was unwilling to sign his plan until after consultation with his counsel. Claimant did not sign his plan until approximately two and one-half weeks prior to hearing. Ms. Hardcopf-Bickley has arranged a week-long work simulation with the Cherokee County Soil Conservation Service. She characterizes this job as involving light work as defined by the Dictionary of Occupational Titles and as permitting claimant to move about at will. Claimant would work in a special project concerning the design and construction of animal solid waste treatment facilities. Ms. Hardcopf-Bickley reported the soil conservation service had a special interest in claimant doing this project on account of claimant's past work in concrete finishing. The pay grade for the position is either a GS 3 or a GS 4 with a beginning wage from $4 to $7.85 per hour. If the initial pay grade is GS 4 at $7.85 per hour the "top out" pay grade would be a GS 12 at $12 per hour. Ms. Hardcopf-Bickley Page 6 stated there is no guarantee that the position will be permanently funded. She stated that an employer participating in job stimulation and on-the-job training agrees to make a good faith effort to find a position for the worker if the worker is successful in the on-the-job training. In this case, the insurer, General Casualty, is assisting with funding, that is, providing wages to claimant while claimant participates in the on-the-job training. Claimant characterized the job simulation in the soil conservation service as "too good" to pass up and stated he would give it a try. Claimant characterized the drive from Remsen to the soil conservation office as 28 miles one way. He felt that the drive would be a major obstacle to his being able to perform the job. Claimant disagreed with Ms. Hardcopf-Bickley's characterization of the soil conservation position as an actual job offer. Claimant stated that there were 25 applicants for the soil conservation service position. It is expressly found that some uncertainties exist both as related to long-term funding of the soil conservation service position and as related to claimant's ability to perform the position. It is further expressly found that claimant has been less than actively involved in seeking employment and appears to have the perception of himself as nonemployable which perception is encouraged by his vocational evaluator such that it can not fairly be said that claimant has made either an adequate or diligent job search. CONCLUSIONS OF LAW Our first concern is the extent of claimant's permanent disability. Claimant argues that claimant is permanently and totally disabled. Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. 1982). In considering whether an individual is permanently and totally disabled, one must assess the factors of industrial disability as they relate to that particular claimant. 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 Page 7 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 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). The record does not support claimant's contention that claimant is permanently and totally disabled. While all physicians and all vocational counselors agree claimant cannot return to the heavy manual labor he performed prior to his work injury, none of claimant's physicians and only the vocational evaluator and the neuropsychological Page 8 evaluator claimant retained contend claimant cannot return to some gainful work. Claimant has transferable skills both as set out by Vocational Rehabilitation Consultant Hardcopf-Bickley and as demonstrated by the soil conservation service's willingness to accommodate claimant with a job simulation and consideration of employment. Claimant appears to be of average to high average intelligence. Claimant apparently does have some memory deficits on account of his subdural hematoma. Dr. Durward, who was claimant's primary treating physician for that condition, does not state that that condition precludes claimant's employment. Dr. Hairston, the neuropsychological evaluator to whom Dr. Durward referred claimant, and Ms. Hardcopf-Bickley share that view. Indeed, only claimant's vocational evaluator and claimant's neuropsychological evaluator, that is, Mr. Rogers and Mr. Korn, place great stress on claimant's cognitive deficits as a barrier to employability. Their views in this regard are given lessor weight in that their views are not consistent with the opinions the primary treating neurosurgeon, Dr. Durward, expressed. While claimant has self-limited as to driving more than 20 miles from his home, no doctor has imposed that restriction. The medically imposed restrictions are such that claimant remains physically capable of engaging in moderate or light work. That the employer's vocational rehabilitation specialist has been able to arrange a job simulation for claimant supports the conclusion that work within claimant's physical capacities and education, experience, training, and intelligence may well be available to claimant should claimant seek it diligently. The record, unfortunately, does not demonstrate that claimant has been wholly committed to seeking employment or assisting in his own rehabilitation. For that reason also, the determination that claimant is permanently and totally disabled on account of his work injury is inappropriate. Questions remain as to Page 9 whether claimant's limited success in finding employment result from the residuals from his work injury or result from claimant's relatively passive approach to his own rehabilitation. While claimant is not found to be permanently and totally disabled, it is clear that claimant has a significant industrial disability. Claimant has suffered a severe work injury with significant residuals as reflected in the impairment ratings rendered. It is clear that claimant cannot return to the work he was doing prior to his injury. Claimant's intellectual capacities, his education and prior experience all suggest claimant has skills he could utilize in competitive employment. It is also evident that claimant's job market access is substantially more limited than it was prior to his work injury when claimant had access to the heavy manual labor jobs from which he is now restricted. When all factors are considered, it is found that claimant has sustained a loss of earnings capacity of 70 percent resulting in an industrial disability entitlement of 350 weeks. We consider the question of claimant's healing period entitlement. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The fighting issue as regards healing period is whether claimant is entitled to healing period benefits from his date of injury through Dr. Kline's opinion of maximum medical improvement on March 29, 1993, or whether healing period benefits should only be awarded intermittently with a stoppage of healing period benefits after December 24, 1989 through March 2, 1992, when claimant commenced evaluation and treatment with Dr. Kline. The earliest indication that claimant might have been at maximum medical improvement came in April 1989 when Dr. Durward released claimant from the doctor's care but for a return on an as needed basis. Dr. Donohue then in June 1989 pronounced claimant at maximum medical improvement. Dr. Leafstedt, in December 1989, performed a functional capacities evaluation and released claimant to return to work. Any of these arguably might appropriately be considered points of maximum medical improvement. Likewise, various physicians rendered permanent partial impairment ratings on or before March 29, 1993. Arguably, these dates also might be determinative of an initial end point of claimant's entitlement to healing Page 10 period benefits. Nonetheless, claimant's significant pain complaints related to his work injury were never fully alleviated or stabilized until subsequent to Dr. Kline's surgical intervention. Claimant actively sought treatment referrals in order to resolve those symptoms. Defendants delayed in authorizing both referrals and treatment. Hence, the prolonged period in which claimant's condition was not optimally treated is attributable to defendants' action and not to claimant. Given that, claimant is properly entitled to an award of healing period benefits from his date of injury through March 29, 1993. Additionally, claimant is entitled to an intermittent award of healing period benefits during that time in April and May 1993 when claimant underwent work hardening at defendants' behest. That work hardening was intended to maximize claimant's functional capacities and thereby increase his access to the labor market. That intermittent period of healing period entitlement begins on April 12, 1993, when claimant entered the back rehabilitation program and ends on May 10, 1993, when claimant voluntarily withdrew from that program. We consider the question of claimant's entitlement to payment of the costs related to the TENS unit and request for payment of charges with Thomas Korn, Ph. D. Section 85.27 requires the employer to furnish reasonable medical services and supplies for conditions compensable under the workers' compensation law. Dr. Durward, claimant's authorized physician, prescribed claimant's TENS unit for pain condition related to claimant's work injury. In that the unit was prescribed by a treating physician any lack of authorization defense fails. Defendants do have the right to choose the provider of care. Defendants do not have the right to interfere with the authorized physician's judgments as to the type of care appropriately to be rendered. See Assman v. Blue Star Foods, declaratory ruling, file number 866389 (May 18, 1988). Claimant has not established any entitlement to payment of costs incurred with Dr. Korn, however. Dr. Korn clearly was not an authorized physician. It also cannot be said that Dr. Korn provided care that improved claimant's condition and therefore mitigated the employer's ultimate liability such that Dr. Korn's involvement with claimant could be considered nonauthorized but reasonable and necessary treatment. See Rittgers v. United Parcel Service, 3 Iowa Industrial Commissioner Report 210, 213 (1983). Indeed, it is questionable whether Dr. Korn's involvement with claimant can properly be considered care. Dr. Korn's involvement appears to have been primarily in the nature of evaluation. Claimant has already had an independent medical evaluation with Dr. Parsow. Additionally, Dr. Korn's evaluation appears to have been prepared more in contemplation of litigation then in contemplation of providing treatment. No reasonable basis for reimbursement for the costs of services Dr. Korn rendered exist either under section 85.27 or Page 11 section 85.39 ORDER Defendants pay claimant healing period benefits at the rate of two hundred fifty and 45/100 dollars ($250.45) from his date of injury through March 29, 1993 and defendants pay additional healing period benefits from April 12, 1993 through May 10, 1993. Defendants receive credit for benefits previously paid. Defendants pay claimant permanent partial disability benefits for three hundred fifty (350) weeks at the rate of two hundred fifty and 45/100 (250.45) with those payments to commence on March 30, 1993, and cease on April 12, 1993, and recommence on May 11, 1993. Defendants pay claimant costs related to the securing of a TENS unit in the amount of five hundred sixty-two dollars ($562). Defendants pay costs of this action. Defendants file claim activity reports as the agency orders. Signed and filed this ____ day of October, 1993. ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. G. Daniel Gildemeister Attorney at Law 400 Firstar Bank Bldg PO Box 1768 Sioux City, Iowa 51102 Mr. Frank Harrison Attorney at Law 2700 Grand Ave, STE 111 Des Moines, Iowa 50312 1802 1803 1804 2501 2503 Filed October 14, 1993 Helenjean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOHN B. COOK, Claimant, vs. File No. 888644 RUSSELL'S READY MIX, INC., A R B I T R A T I O N Employer, D E C I S I O N and GENERAL CASUALTY COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 1804 1803 Claimant sustained quite severe injuries when he was run over by a road grader. Claimant was not found totally and permanently disabled. Claimant had transferable skills and remained capable of performing light and moderate work. Record demonstrated that claimant was not highly motivated to seek employment. Claimant awarded 70 permanent partial disability benefits. 1802 Claimant awarded healing period benefits from the date of injury through his release by a physician who performed surgery to relieve claimant's pain symptoms almost four years subsequent to the original injury. Defendants had delayed in authorizing evaluation and treatment of claimant's continuing pain complaints even though claimant's authorized treating physician had advised that further evaluation and potential treatment was warranted. 2501 2503 Claimant awarded costs of a TENS unit that claimant's authorized treating physician had prescribed. Claimant denied costs of psychoneurological evaluation where psychoneurological evaluation could not properly be characterized as treatment and appeared to have been sought primarily for the purpose of furthering claimant's position in litigation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BETTY ROBSON, : : Claimant, : : vs. : : File No. 888702 WOODBURY COUNTY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL INS., : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Betty Robson, claimant, against Woodbury County, employer, and Northwestern National Insurance Group, insurance carrier, defendants, for benefits as the result of alleged injuries which occurred on April 5, 1986 and April 6, 1986. A hearing was held at Sioux City, Iowa, on April 24, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by William L. Miller. Defendants were represented by James M. Cosgrove. The record consists of the testimony of Betty Robson, claimant; Mike Robson, claimant's husband; and joint exhibits 1 through 66. Joint exhibit 67 was excluded from evidence for the reason that it was a deposition of claimant and claimant was available at the hearing for examination and cross-examination and, if necessary, could be refreshed or impeached by the deposition. Both claimant and defendants offered a brief description of the disputes at the beginning of the hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. stipulations The parties stipulated that claimant sustained an injury on April 5, 1986 and again on April 6, 1986, which arose out of and in the course of employment with employer; that the injuries were the cause of both temporary and permanent disability; and that claimant's entitlement to temporary disability benefits was no longer in dispute and had been paid for the following periods of time: (1) April 20, 1986 to May 17, 1986; (2) May 25, 1986 to May 30, 1986; (3) June 16, 1986 to October 26, 1986; (4) January 5, 1987 to January 25, 1987; and (5) February 2, 1987 to May 1, 1988 (exhibit 2). Page 2 The parties further stipulated that the type of permanent disability, in any, is industrial disability and that defendants had paid claimant 50 weeks of permanent partial disability benefits at the stipulated rate of $177.16 per week in the total amount of $8858 prior to hearing (exhibit 2). The parties stipulated that the issue of whether defendants were entitled to a credit under Iowa Code section 85.38 for nonoccupational group health plan benefits paid to claimant prior to hearing, as shown on the hearing assignment order, was withdrawn by the parties at the time of the hearing (transcript pages 10 and 11). issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant is entitled to additional permanent partial disability benefits; and Whether claimant is entitled to certain medical expenses itemized in paragraph eight of the hearing assignment order. findings of fact entitlement to permanent disability benefits It is determined that claimant sustained a 15 percent industrial disability to the body as a whole and is entitled to 75 weeks of permanent partial disability benefits. The parties agreed that claimant has actually sustained 2 separate injuries on two separate dates, but both injuries were to be presented and decided in this hearing as one claim (tr. p. 5). Claimant started to work for employer in August of 1980 and continued to work for employer for a period of approximately six and one-half years until January 31, 1987. She started as a residential assistant, monitoring residents; was promoted to psych tech; and eventually lead psych tech in 1983. At the time of this injury, she worked in a lockup unit with mentally disturbed male patients. On April 5, 1986, a disturbed patient grabbed her by the hair and pulled her head back and to the left. On April 6, 1986, another disturbed patient attempted to choke her by putting his hands around her neck. As a result of these injuries she had left neck pain, left shoulder pain, left elbow pain and pain down the left arm to the fingers. She was treated by several doctors and with several modalities of treatment. Claimant was treated by: G.L. Tapper, D.C., for acute traumatic injury of the cervical and upper thoracic spine; J.H. Walston, M.D., for acute cervical and thoracic Page 3 myositis; C.T. Helseth, M.D., a family practice physician, for left neck and shoulder weakness; Mark P. Hagen, D.C., for cephalgia, hyperflexion/hyperextention of the cervical spine, cervical thoracic sprain, cervical cranial syndrome, shoulder pain and muscle spasm; Nino R. Lentini, M.D., an orthopedic surgeon, for myofascitis of the left shoulder; A. Kleider, M.D., for neck pain and headache; B. Krysztofiak, M.D., a physical medicine and rehabilitation doctor who performed an EMG and nerve conduction study which was normal; Robert A. Durnin, M.D., a physical medicine and rehabilitation doctor, for headaches and pain involving the left shoulder joint; and Lyle G. Leibrock, M.D., an orthopedic surgeon at the University of Nebraska Medical Center in Omaha, for paracervical posterior pain which would go to the posterior shoulder. During the course of treatment by these physicians, claimant had several x-rays, some CT scans and MRI's. Quentin J. Durward, M.D., a neurosurgeon, performed a myelogram on November 20, 1987, and identified a C-6/7 central disc herniation touching the spinal cord (ex. 38, p. 2). On January 6, 1988, Dr. Durward and John J. Dougherty, M.D., an orthopedic surgeon, performed an anterior C6/7 cervical diskectomy and fusion (ex. 40, p. 3). On April 22, 1988, Dr. Durward stated that claimant will reach maximum medical improvement on May 1, 1988, and gave claimant a 10 percent permanent impairment rating (ex. 44, p. 1). On August 9, 1988, Dr. Dougherty concurred in a 10 percent permanent impairment rating (ex. 26). Neither doctor imposed any temporary or permanent restrictions on claimant. She was permitted whatever her condition would tolerate. Before the surgery was performed, Dr. Durnin estimated that claimant's symptoms would suggest a 14 percent permanent impairment plus 2 percent for loss of lateral flexion and 2 percent for loss of rotation (ex. 34). After the surgery, in approximately July of 1988, claimant joined her husband and family in Las Vegas, Nevada, where she completed a medical assistant course and received a certificate. At the time of the hearing, she had also made an application to be certified as a nurse's aide. Sometime before the injury, claimant had completed courses and received certificates from the Iowa Department of Health in sanitation, modified diets, meal service and food service. Past employments include: waitress, assembly person in a transistor factory, dietary cook and dietary aide. She completed courses at Western Iowa Tech for geriatric aide, psychiatric aide and medication aide. At the time of the hearing, she was studying accounting and bookkeeping through a correspondence course with the intention of completing the course. In Las Vegas claimant saw a number of doctors again for various problems such as pneumonia, vomiting and anxiety. In Las Vegas claimant consulted Larry M. Allen, M.D.; Robert E. Cutler, M.D.; Armand Gilbo, D.C.; and Peter F. Mattimoe, M.D. None of these physicians were authorized by the defendants, but they did authorize claimant to see a Page 4 neurosurgeon, George P. Schanz, M.D. Dr. Schanz could not find anything physically wrong with claimant and commented that if she was self-employed she probably would have gone back to work (ex. 56). Claimant returned to Sioux City in February of 1989 and saw Dr. Durward again. He said the operation got rid of most of her arm pain and the tingling in her hand, but she had persistent pain in the left neck, left superior shoulder area and headaches which were activity related. He did not find any neurological problems, but did state, "I think this lady has a persistent myofascial pain disorder, probably related to her original injury. I think further treatment is required for this." (ex. 45). He recommended a prescription, an exercise program, physical therapy modalities, a course of myofascial pain blocks and steroidal flooding (ex. 45). On April 6, 1989, his associate, Ralph F. Reeder, M.D., stated that his assessment was in agreement with Dr. Durward's. He added, "I am afraid however, that she has developed a chronic pain syndrome." (ex. 46). On May 1, 1989, Dr. Durward repeated that claimant has a chronic myofascial pain disorder. He recommended that she attend a pain clinic in Las Vegas, but he was informed there was no pain clinic there (ex. 49). She said she saw a Dr. Parker (full name unknown) at the pain clinic in Las Vegas (tr. pp. 89 & 90). At the Las Vegas pain clinic they used a TENS unit (tr. pp. 90 & 91). Her current symptoms are a sharp pain in the left side of her neck, across the left shoulder and the back of the left arm (tr. p. 52). At the time of the hearing she was working in a health care center as a dietary aide, five hours a day, four days a week at $4.60 per hour, setting up trays for meals and putting away dishes (tr. p. 53). Claimant asserted and her husband corroborated that she is very limited in her ability to perform house work and yard work at home. Her neck is stiff and sore and she cannot brush her own hair. In May of 1989, defendants had a job as a medical aide approved for claimant by Dr. Durward and sent claimant an application. Claimant testified that she was not interested in working in Sioux City because she had moved to Nevada (ex. 50). Claimant testified that she was 38 years old and had graduated from high school. She is young enough to find new employment. 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 is capable of retraining. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). In fact, claimant has been taking courses and increasing her qualifications for the competitive employment market most of her adult working life. Claimant admitted that no doctor had imposed any work restrictions on her of any kind and that she was allowed to do anything she could Page 5 tolerate (tr. p. 140). Even though claimant expressed great difficulty in working, which is probably due to her chronic pain syndrome, there is no evidence that claimant is foreclosed from any of her former employments. Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984); Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979). Claimant testified that she had attempted to find work, but was not very successful. Claimant's motivation to find work is questioned because of the long periods of time during which she did not seek employment. It is also noted that she is supported by her husband of 19 years who has a full-time job and that she has three teenaged children at home that probably need her attention. Because claimant has not made a serious attempt to find full-time work, it is difficult to ascertain the true extent of her loss of earning capacity. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). An employee making a claim for industrial disability will benefit from a showing of a serious attempt to find work. 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). Employers are responsible for the reduction in earning capacity caused by the injury. They are not responsible for loss of actual earnings because the employee resists or refuses to return to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982); The fact that claimant forgot that she injured her neck in high school and that she sought chiropractic care in junior high school did not seriously impair her credibility. Her preexisting degenerative disc disease has already been taken into consideration (tr. p. 77). Claimant contends that she was fired or terminated by employer, but this is not correct. Woodbury County transferred the employment contract to an independent contractor, Woodbury County Homestead, Inc. When this transition occurred, defendants, of necessity, terminated claimant on January 31, 1987. Claimant applied for employment with Woodbury County Homestead, Inc., but she was not hired by that organization. Therefore, it cannot definitely be stated with accuracy that defendant employer, Woodbury County, would not offer claimant employment. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). It is also noted that Dr. Durward commented on his surgery report of January 6, 1988, "The patient had a surprisingly degenerated C6/7 disk." (ex. 40, p. 3). An employee is not entitled to recover for the results of a preexisting injury or disease, but can recover for an aggravation thereof which resulted in the disability found Page 6 to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Wherefore, (1) based on claimant's age in the mid-30's at the time of this injury; (2) her high school education; (3) the numerous courses that she has completed which enhance her qualifications in the medical field; (4) her permanent impairment rating of 10 percent; (5) the fact that no doctor has imposed any permanent work restrictions on claimant; (6) the fact that claimant is and probably will be into the indefinite future afflicted with a chronic pain syndrome which will reduce her earning capacity in some degree; (7) based on the other evidence in this case; (8) based on 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 (9) relying on agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 15 percent industrial disability to the body as a whole and is entitled to 75 weeks of permanent partial disability benefits. Defendants are entitled to a credit for the 50 weeks of permanent partial disability benefits paid to claimant prior to hearing as stipulated to by the parties. medical benefits Reviewing the list of medical expenses attached to the prehearing report, the following determinations are made: The prescriptions from Skaggs Pharmacy in the amount of $64.18 are denied because they were ordered by Peter F. Mattimoe, M.D., who was not an authorized treating physician for claimant in Las Vegas. Furthermore, one of the prescriptions is Vasotec, which is a blood pressure medication (ex. 62). The reimbursement for two pairs of glasses prescribed by Dr. Durnin cannot be allowed. Dr. Durnin's medical report of October 5, 1987, stated that claimant should get some single lens glasses so that she does not have to look over the ridge in her bifocals because that probably aggravated her neck pain when she extended her neck. Therefore, claimant was directed by Dr. Durnin to buy a pair of single lens glasses for computer work and typewriter work (ex. 35). Claimant submitted two bills for eyeglasses, one in the amount of $105 and the other one in the amount of $67. It cannot be determined which bill is for the single lens glasses. Claimant gave no testimony on this point. Furthermore, defendants maintain that claimant was paid for one pair of glasses (ex. 11) whereas, claimant maintains in Page 7 her testimony that she received one check for several items without a summary of what it covered and she didn't feel that the glasses had been paid for (tr. pp. 133 & 134). Wherefore, based on this evidence, claimant has not sustained the burden of proof by a preponderance of the evidence how much is owed for eyeglasses and there is a conflict of testimony as to whether she has been paid for the eyeglasses or not. Therefore, no allowance can be made for the eyeglasses (ex. 61). Claimant makes a claim for air transportation from Las Vegas to Omaha in order to return to Iowa to see Dr. Durward. Claimant was authorized Dr. Durward as a neurosurgeon in Sioux City and she was authorized Dr. Schanz as a neurosurgeon in Las Vegas. Thus, this air fare is not a reasonably necessary medical expense within the context of Iowa Code section 85.27. Claimant is denied the medical expense item for mileage from Omaha to Smithland, Iowa, and Smithland back to Omaha, Nebraska, a total of 218 miles in the amount of $47.96. Claimant made no explanation of what this mileage is or why it is justified. It would appear to be the mileage from the airport in Omaha to where ever claimant stayed when she was back in the Sioux City area and then her trip back to the airport again. Again, since claimant was authorized treating neurosurgeons in both Las Vegas and Sioux City, then this is not a reasonably necessary transportation expense in the context of Iowa Code section 85.27. Claimant is entitled to the prescriptions of Dr. Durward for Dolobid dated February 15, 1989, and March 1, 1989, at the James Drug pharmacy in the amount of $60.98 (ex. 63). Dr. Durward was an authorized treating physician. Defendants' contention that Dr. Durward had not been a treating physician since he had last seen claimant on March 30, 1988, when he said he would not need to see her again, is without merit. There is no evidence that claimant had ever been notified that Dr. Durward was not a treating physician any longer. Furthermore, the fact that the employer and the insurance carrier paid for Dr. Durward's charges and the hospitalization expenses he ordered, constitute Dr. Durward as a treating physician (tr. p. 69). A physician chosen by the employee, but adopted by the employer's insurance carrier is considered to be an employer retained physician. Coble v. Metromedia, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 71 (1979). Under section 85.27, the employer has the right to choose the physician. However, when the employer and insurance carrier acquiesce in the care of the physician chosen by the claimant, then this physician is considered to be an employer retained physician. Munden v. Iowa Steel & Wire, Thirty-third Report of the Industrial Commissioner 99 (1977); Conte v. Heartland Lysine, file number 900546 (filed June 13, 1991). Wherefore, it is determined that claimant is entitled to $60.98 for prescriptions ordered by Dr. Durward on February 15, 1989 and March 1, 1989 (ex. 63). For the same Page 8 reason, claimant is entitled to the $34.32 in mileage expense to see Dr. Durward on February 15, 1989 and March 6, 1989, and also to attend the physical therapy and receive the injections that he ordered which is itemized and shown as a mileage expense of $120.12. The charges in the amount of $150 for Armand Gilbo, D.C., in Las Vegas (ex. 60) are denied because Dr. Gilbo was not an authorized treating physician. Claimant admitted that Dr. Gilbo was not authorized (tr. p. 61). The medical expenses allowed above total $215.42. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained a 15 percent industrial disability to the body as a whole and is entitled to 75 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u); Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). That claimant is entitled to $215.42 in medical expenses as shown above. Iowa Code section 85.27. order THEREFORE, IT IS ORDERED: That defendants pay to claimant seventy-five (75) weeks of permanent partial disability benefits based upon a fifteen (15) percent industrial disability to the body as a whole at the stipulated rate of one hundred seventy-seven and 16/100 dollars ($177.16) per week in the total amount of thirteen thousand two hundred eighty-seven dollars ($13,287) commencing on May 2, 1988, the date stipulated to by the parties. That defendants are entitled to a credit for fifty (50) weeks of permanent partial disability benefits paid to claimant prior to hearing at the rate of one hundred seventy-seven and 16/100 dollars ($177.16) per week in the total amount of eight thousand eight hundred fifty-eight dollars ($8,858) as stipulated to by the parties. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant two hundred fifteen and 42/100 dollars ($215.42) in medical expenses. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code section 86.19(1). Page 9 That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. William L. Miller Attorney at Law 509 9th St. Sioux City, Iowa 51101 Mr. James M. Cosgrove Attorney at Law 1109 Badgerow Bldg. PO Box 1828 Sioux City, Iowa 51102 Page 1 51401 51402.40 51803 51402.60 51501 52700 Filed September 5, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : BETTY ROBSON, : : Claimant, : : vs. : : File No. 888702 WOODBURY COUNTY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL INS., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51401 51402.40 51803 Claimant, age 38, high school education, with several other special training certificates and qualifications, was not foreclosed from any former employments, was given no permanent restrictions, and was awarded a 10 percent permanent impairment rating. The treating physician, and others, said she had a chronic pain syndrome. Claimant's motivation to find full-time employment was questioned. Claimant did not prove she was fired by employer. Although claimant was impeached on some points in her early medical history, it did not significantly affect the determination of the issues in this case. Claimant awarded 15 percent industrial disability to the body as a whole 51402.60 51501 52700 Claimant was not entitled to air mileage from Las Vegas to Sioux City when defendants had authorized neurosurgeons in both cities. Claimant was entitled to see the neurosurgeon in Sioux City a year after she was discharged because (1) this doctor's authorization was never revoked (2) defendants paid his charges. Therefore, they also owed for the physical therapy and epidural injections that he ordered. All other medical practitioners in dispute were admittedly unauthorized. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARLAND HILES, Claimant, VS. File No. 888703 BLUE STAR FOODS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and MARYLAND CASUALTY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Garland Hiles against her former employer, Blue Star Foods, and its insurance carrier, Maryland Casualty. At the time of hearing, it was stipulated by the parties that claimant had injured her left arm on April 5, 1987 as alleged in the petition. It was also stipulated that all benefits payable under section 85.27 of The Code had been paid and that claimant had no medical evidence to support a claim for permanent disability of any degree. It was stipulated that she lost no time from work as a result of the injury and had continued to work for the employer until she retired. FINDINGS OF FACT The stipulation made by the parties is relied upon. It is found that Garland Hiles injured her left arm on August 5, 1987, but that the injury did not disable her from performing the normal duties of her employment. It is further found that the employer has 'aid all' expenses of medical treatment incurred as a result of that injury. It is further found that the record does not contain sufficient evidence to support an award of permanent partial disability. HILES v. BLUE STAR FOODS Page 2 CONCLUSIONS OF LAW It is therefore concluded that claimant sustained an injury to her left arm on August 5, 1987 which arose out of and in the course of her employment with Blue Star Foods, Inc. It is further concluded that claimant is not entitled to recover any weekly compensation for temporary or permanent disability resulting from that injury under the provisions of Iowa Code sections 85.33 or 85.34. Since defendants had denied that claimant sustained any injury which arose out of and in the course of employment and claimant prevails on that issue, the claimant is entitled to recover the costs of this action. Claimant's entitlement to benefits under the provisions of Iowa Code section 85.27 has been fully satisfied. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 25th day of June, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Murphy Attorney at Law 100-101 Park Building Council Bluffs, Iowa 51503 Mr. Philip Willson Attorney at Law 35 Main Place P.O. Box 249 Council Bluffs, Iowa 51502 2907 Filed June 25, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARLAND-HILES, Claimant, VS. File No. 888703 BLUE STAR FOODS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and MARYLAND CASUALTY, Insurance Carrier, Defendants. 2907 Claimant, who established injury arising out of and in the course of employment, was entitled to recover costs, but failed to meet burden of proving any entitlement to weekly benefits. Section 85.27 benefits had been previously paid voluntarily. Page 1 5-1803 Filed June 26, 1991 Larry P. Walshire Before the iowa industrial commissioner ____________________________________________________________ : HELEN BRUDNIDGE, : : Claimant, : : vs. : :File Nos. 888707 & 888708 CEDAR RAPIDS MEATS, INC. d/b/a: FARMSTEAD FOODS, and WILSON : FOODS COMPANY, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1803 Extent of permanent disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HELEN BRUNDIDGE, Claimant, vs. File No. 888708 CEDAR RAPIDS MEATS, INC. d/b/a FARMSTEAD FOODS, AND WILSON A P P E A L FOODS COMPANY, D E C I S I O N Employer, and SENTRY INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION 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 Those portions of the proposed agency decision pertaining to issues not raised on appeal are adopted as a part of this appeal decision. The issues raised on appeal are: 1. Whether the deputy erred in finding the claimant had a pre-existing, permanent disability which would qualify as a first injury under Iowa Code section 85.64? 2. Whether the deputy erred in determining that the claimant's industrial disability attributable to the injuries to her upper extremities, after reduction for the compensable value of those injuries, was sufficient to require further payment of benefits from the fund? FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed June 26, 1991 are adopted as final agency action. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed June 26, 1991 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is Page 2 in addition to the language of the proposed agency decision. Claimant seeks additional disability benefits from the second injury fund under Iowa Code section 85.63 through 85.69. The fund was created to compensate an injured worker for permanent industrial disability resulting from the combined effects of two separate prior injuries. The purpose of such a scheme of compensation was to encourage to hire and retain handicapped workers and disabled veterans. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978). There are three requirements under the statute to invoke fund liability. First, there must be a permanent loss or loss of use of one hand, arm, foot, leg or eye. Second, there must be a permanent loss or loss of use of another such member or organ through a subsequent injury. Third, there must be a permanent industrial disability to the body as a whole arising from both the first and second injuries which is greater in terms of relative weeks of compensation than the sum of the scheduled allowances for those injuries. If there is a greater industrial disability to the combined effects of the prior loss and the secondary loss than equals the value of the prior and second losses combined, then the fund will be charged with the difference. Second Injury Fund v. Neelens, 436 N.W.2d 355 (Iowa 1989). ***** [Claimant reported bilateral complaints from July, 1984 on. Although her surgeries for each arm were one month apart, claimant's left and right arm conditions were basically caused by the same repetitive trauma processes. Claimant has suffered a simultaneous bilateral injury. See Kebernik v. Thatcher Plastic Packaging, Arbitration Decision, December 22, 1988; Jones v. Lamoni Products, Arbitration Decision, May 29, 1991; Torgerson v. Webster City Custom Meats, Appeal Decision, July 30, 1992. The record does show that claimant's symptoms in her hands began two years apart. However, claimant then continued to work for several years, experiencing bilateral symptoms. When claimant sought medical treatment, claimant was diagnosed as having bilateral carpal tunnel syndrome. There is no showing that, during the two years between the onset of symptoms in each upper extremity, claimant suffered disability. The mere onset of symptoms at separate points in time does not necessitate a finding of two separate injuries. Where, as here, one continuous work activity eventually results in claimant being compelled to leave work or seek medical attention for bilateral conditions, the greater weight of the evidence indicates a single simultaneous injury. This case is distinguishable from Harris v. Wilson Foods Corporation, Appeal Decision, December 22, 1988, File Nos. 688326 and 808328, where claimant also experienced the onset of symptoms approximately two years apart. However, in the Harris case, claimant missed work and underwent surgery on the first arm to display symptoms before developing a problem with the second arm. Clearly, under those facts, claimant had suffered two separate and distinguishable injuries. In this case, by contrast, between the point in time when symptoms first appeared in one upper extremity in 1974, and Page 3 when they began to appear in the other upper extremity in 1976, claimant was not disabled and, in fact, did not become disabled until many years later. Claimant's condition is a single, simultaneous, bilateral repetitive motion injury. In order to qualify for benefits from the Second Injury Fund of Iowa, claimant must show that she has suffered both a prior loss of a member enumerated in Iowa Code 85.64, and a later loss of another member under that section. As claimant has shown only a single simultaneous injury, claimant has not met her burden of proof to show entitlement to benefits from the fund.] WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That claimant shall take nothing from the Second Injury Fund of Iowa. That the Second Injury Fund shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of May, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 4 Copies To: Mr. James E. Shipman Mr. James M. Peters Mr. Matthew J. Brandes Attorneys at Law 1200 MNB Building Cedar Rapids, Iowa 52401 Mr. Craig Kelinson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 3203; 2209 Filed May 18, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HELEN BRUNDIDGE, Claimant, vs. File No. 888708 CEDAR RAPIDS MEATS, INC. d/b/a FARMSTEAD FOODS, AND WILSON A P P E A L FOODS COMPANY, D E C I S I O N Employer, and SENTRY INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 3203; 2209 Claimant's bilateral repetitive motion arm injury found to be a single simultaneous injury under 85.34(2)(s). Page 1 Before the iowa industrial commissioner ____________________________________________________________ : HELEN BRUNDIDGE, : : Claimant, : : vs. : :File Nos. 888707 & 888708 CEDAR RAPIDS MEATS, INC. d/b/a: FARMSTEAD FOODS, and WILSON : FOODS COMPANY, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Helen Brundidge, claimant, against the Second Injury Fund of Iowa, a special fund administered by the treasurer of the State of Iowa, defendant, for workers' compensation benefits as a result of alleged injuries on August 8, 1985 and September 19, 1985. On June 6, 1991 a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. Official notice of other pending claim files with the agency was taken as the request of the parties at hearing. According to the prehearing report, the parties have stipulated to the following matters: 1. On August 8, 1985 and again on September 18, 1985, claimant received injuries which arose out of and in the course of her employment. 2. If permanent disability benefits are awarded in this proceeding, they shall begin as of November 18, 1985. 3. Claimant's rate of weekly compensation shall be $207.37. Page 2 At hearing, claimant moved to amend his pleadings to include an injury the claimant's knee in July 1980 as a prior injury to invoke fund liability. Such an injury date was not originally pled in claimant's petition against the fund. This motion must be denied on the basis of fairness. Prior to the hearing, claimant was asked in an interrogatory from the fund to set forth the injuries upon which fund liability was claimed. No mention of a July 1980 injury was made in the response to this interrogatory and no supplementation of the response occurred prior to hearing. It is found that the fund is prejudiced by this delay. Given the numerous and prior subsequent injuries suffered by claimant in this case, it would be an undue burden to require the fund's attorneys to guess as to which injury claimant was attempting to use as a basis for her claim. It is reasonable for the fund to rely upon answers to interrogatories in preparing for trial. In this case, the fund's attorney at hearing stated that he would have conducted the deposition of one medical expert in this case much differently had he known of the potential use of a July 1980 injury to invoke fund liability. Therefore, the alleged prior injury of July 1980 will not be considered in this decision as a qualifying prior injury for the purposes of determining fund liability. issue The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to disability benefits from the second injury fund. findings of fact Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant places claimant's credibility at issue during cross-examination as to the nature and extent of the various injuries and disability she has suffered. From her demeanor while testifying, claimant is found credible. Claimant is a former meat packer. Claimant's last employment was with Cedar Rapids Meats doing business as Farmstead Foods. Actually, claimant has worked at the same packing house location since 1963. The plant was formerly owned and operated by a company called Wilson and Company. Farmstead Foods closed due to bankruptcy in March 1990. Claimant was working at the plant at the time it closed. Prior to the plant closure, claimant had worked on the bacon line as a scaler since 1982. She had worked in other departments prior to that time. In the prehearing report, the parties stipulated as to the occurrence of two work injuries. The claimant's injury Page 3 on August 8, 1985, occurred as a result of a surgery to her left hand and wrist. This surgery removed a cyst and repaired a trigger finger in the left hand. Claimant's problems with left hand and wrist pain and cyst development began long before in 1974 while working at the packing house. Claimant received treatment in the form of wrapping of the wrist initially, but lost no time from work. Claimant testified that the problems gradually worsened over the next several years. Claimant's injury on September 19, 1985, occurred as a result of a surgery to her right hand and wrist. The surgery involved a release of the tendons and nerves in the carpal tunnel of the right hand and wrist. Claimant also had a history of right wrist and arm pain dating back to 1974 according to the records of her treating physician. Claimant suffered increased symptoms of swelling, pain and numbness in both of her hands and arms during the two years prior to her surgeries. Claimant was working at Farmstead on the bacon line as a scaler at this time. Her wrists had to be wrapped daily to minimize the pain and swelling. Claimant only lifted a few pounds at a time in the scaling process, but this was rapid repetitive motion. According to the physician who performed the surgeries on the right and left wrists and hands, William Eversmann, Jr., M.D., an orthopedic surgeon, claimant suffers from permanent partial impairment as a result of those surgeries. Dr. Eversmann rated claimant's permanent partial impairment to be 14 percent of the left arm and 24 percent of the right arm. He attributes all of this impairment to the surgeries as explained in Evermann's letter to claimant's attorney which is set forth in exhibit 1, page 41. The only other rating of impairment, by claimant's physicians appearing in the record, was done by another treating orthopedic surgeon, William Roberts, M.D., who rated claimant's back and left knee permanent impairment as a result of a work injury at Farmstead in March 1988. Dr. Roberts felt at that time that claimant suffered from an 18 percent permanent partial impairment to the body as a whole as a result of the low back and left knee problems. Claimant's left knee problems actually began much earlier in July 1980, when a car struck her in the left knee. The knee began to hurt and swell according to claimant and she sought medical treatment. However, claimant lost no time from work after this incident. Claimant stated that the knee never fully recovered and at the present time the knee still "goes out" after prolonged walking and that she must limp on days the pain flares up in her knee. Claimant has asserted compensable knee and low back injuries between 1986 and 1988. In May 1986, claimant's knee went out while getting into her car at home. In January and May of 1987, claimant suffered back and knee injuries from falls at work. Claimant stated that she continues to have problems after these incidents. However, according to claimant, the most significant injury to her back occurred in March 1988 at work and these back problems have been "bad" ever since. Page 4 No physician opined that claimant suffered permanent partial impairment due to the knee problems prior to the March 1988 injury at Farmstead and no work restrictions were imposed. Claimant had an auto accident injury on February 21, 1989, involving an injury to her low back and left knee. Dr. Roberts, in his letter to claimant's attorney, ex. 1, p. 42, indicated that this incident did not cause any addition to her prior permanent partial impairment. Dr. Roberts attributed the back impairment to the work injury in March of 1988, but he was not very specific as to the cause of the knee impairment he rated. As a result of the combined effects of the work injuries to claimant's left and right hand and arm on August 8, 1985 and September 19, 1985, claimant suffered a 40 percent loss of earning capacity. She had no ascertainable disability independent of her employment prior to these two work injuries. Claimant had bilateral hand, arm and wrist problems, but was always able to return to work with little or no loss of time from work. Claimant's daughter and a fellow employee both testified credibly that claimant had few physical problems prior to the arm surgeries. After these two work injuries claimant did return to work, but continued to have extensive problems with her hands and arms. Claimant left her packing house work only when the plant went bankrupt and closed. However, her physicians noted claimant's continuing significant complaints while she was working and noted that the claimant had a substantial need to remain employed despite the pain. Claimant suffered ascertainable permanent partial impairment and disability subsequent to her second injury for which the fund is not liable. Claimant cannot perform much of the past and present work due to the subsequent back and knee impairments. Since leaving Farmstead's employ, claimant has been primarily unemployed. She attempted to return to work to a nursing home, but was fired after only a few weeks for being physically unable to perform the duties in a timely fashion. These duties involved manual labor in the lifting and pushing and handling of clothes and bedding. Claimant is currently attending a retraining course at a local community college, but is not doing well in bookkeeping and keyboard work due to her continuing hand and arm impairments. Claimant is certified at 25 words per minute, but has no long-term endurance. Claimant has failed on two occasions to pass the math portion on the test to obtain her GED. Claimant must rest five minutes after every 15 minutes of typing. Claimant has looked for suitable work in the area of her residence, but has been unsuccessful. The depressed local economy has much to do with claimant's lack of success. Claimant's work history primarily involves factory work and manual labor in laundry. Claimant's disability limits her ability to perform the work for which she is best suited given her past experience and schooling. conclusions of law Page 5 Claimant seeks additional disability benefits from the second injury fund under Iowa Code section 85.63 through 85.69. The fund was created to compensate an injured worker for permanent industrial disability resulting from the combined effects of two separate prior injuries. The purpose of such a scheme of compensation was to encourage to hire and retain handicapped workers and disabled veterans. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978). There are three requirements under the statute to invoke fund liability. First, there must be a permanent loss or loss of use of one hand, arm, foot, leg or eye. Second, there must be a permanent loss or loss of use of another such member or organ through a subsequent injury. Third, there must a permanent industrial disability to the body as a whole arising from both the first and second injuries which is greater in terms of relative weeks of compensation than the sum of the scheduled allowances for those injuries. If there is a greater industrial disability to the combined effects of the prior loss and the secondary loss than equals the value of the prior and second losses combined, then the fund will be charged with the difference. Second Injury Fund v. Neelens, 436 N.W.2d 355 (Iowa 1989). In the case sub judice, it was found that claimant suffered a 24 percent permanent partial impairment to the arm as a result of the compensable injury of September 19, 1985, and at that time, she had previously suffered a 14 percent permanent partial impairment to the opposite arm as a result of the injury August 8, 1985. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). Therefore, based upon the findings of permanent partial impairment to both arms, claimant's permanent partial disability as a result of the compensable injury of September 19, 1985, is equivalent to 60 weeks of benefits under Iowa Code section 85.34(2)(m), which is 24 percent of 250 weeks, the maximum allowable for an injury to an arm in that subsection. Claimant's permanent partial disability as Page 6 a result of the injury of August 8, 1985, is equivalent to 35 weeks of benefits under Iowa Code section 85.34(2)(m), which is 14 percent of 250 weeks, the maximum allowable on injuries to the arm in that subsection. Turning to the assessment of industrial disability as a result of the combined effects of both qualifying injuries, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In this case, it was found that the combined effects of both the first and second injuries resulted in a 40 percent industrial disability or loss of earning capacity. Based upon such a finding, claimant's entitlement is a matter of law at 200 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u), which is 40 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. The fund is liable for only a portion of this amount. According to Iowa Code section 85.64 the fund is liable for the remaining amount of this disability after first deducting 95 weeks of permanent partial disability caused by the first and second injuries. The remaining 105 weeks will begin as stipulated by the parties on November 18, 1985. Interest on this award shall begin on the date of this decision. Second Injury Fund v. Braden, 459 N.W.2d 467 (Iowa 1990). order 1. The claim against the fund in file number 888707 is dismissed with prejudice. Page 7 2. In file number 888708, the treasurer of the State of Iowa, as custodian for the second injury fund, shall pay from the fund to claimant one hundred five (105) weeks of permanent partial disability benefits at the rate of two hundred seven and 37/100 dollars ($207.37) per week from November 18, 1985. 3. The treasurer shall pay from the second injury fund accrued weekly benefits in a lump sum. 4. The treasurer shall pay from the second injury fund interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. In both claims, the treasurer shall pay from the second injury fund the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. The second injury fund shall file activity reports as to the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Matthew J. Brandes Mr. James Shipman Mr. James Peters Attorneys at Law 1200 Merchants National Bank Bldg. Cedar Rapids, Iowa 52401 Mr. Craig Kelinson Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 Page 1 5-1803 Filed June 26, 1991 Larry P. Walshire Before the iowa industrial commissioner ____________________________________________________________ : HELEN BRUDNIDGE, : : Claimant, : : vs. : :File Nos. 888707 & 888708 CEDAR RAPIDS MEATS, INC. d/b/a: FARMSTEAD FOODS, and WILSON : FOODS COMPANY, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1803 Extent of permanent disability benefits. Page 1 1100;1402;2801;2500;3201 Filed March 6, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : SIN CHA YI, : : Claimant, : : vs. : : File Nos. 845677, 888710 GENERAL MILLS, INC., : 888553, 888709 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ Claimant filed four petition alleging injuries to her right hand; upper extremities; shoulders; neck; and back. 1100; 1402; 2801; 2500 File No. 888709 (injury date October 20, 1986) alleged injuries to claimant's right hand, arm and shoulder caused by overuse. Claimant proved arising out of and in the course of her employment, but failed to prove entitlement to temporary total, permament partial or healing period benefits. Claimant did not miss work for these injuries, nor was there a showing of permanency. Although defendant employer raised an affirmative defense of insufficient notice, it was found that claimant asked her supervisor for a wrist band because her wrist hurt. Defendant admitted this, and her actions were sufficient to put the employer on notice of a incident which needed to be investigated. Claimant awarded medical benefits. Page 2 3201 File No. 845677 (injury date February 19, 197) alleges injuries to claimant's right hand due to a traumatic incident at work. Defendant admitted liability, and paid medical benefits, healing period and permanent partial disability benefits. Claimant failed to show additional permanency, and defendant employer was found not liable for any further compensation. Because claimant's first injury did not result in any permanency, the Second Injury Fund was not liable for benefits. 1100; 1402; 2801; 2500 File No. 888710 (injury date December 15, 1987) alleged injuries to claimant's left hand and arm; shoulder, neck and back. Although defendant employer asserted lack of notice, it was found that they received sufficient notice of a potential work-related injury, as claimant stated her back and shoulders hurt during a meeting with her supervisor and the safety director. Again, claimant presented no evidence that these injuries were permanent in nature, and she was awarded medical benefits only. Second Injury Fund not liable. 1100 File No. 888553 (injury date April 12, 1988) alleged injuries to claimant's left and right arms due to overuse. Claimant failed to prove arising out of and in the course of as her work was non-repetitive, and the treating physician visited the work environment and stated it would be hard to have an easier job to perform.