Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BETTY HAMMER, : : Claimant, : : vs. : : File No. 888785 CLARINDA TREATMENT CENTER, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : 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. The Deputy Industrial Commissioner erred in finding that the claimant was entitled to a re-evaluation of her previously litigated industrial disability. 2. The Deputy Industrial Commissioner erred in failing to find that claimant was not entitled to further benefits because she suffered from no substantial change in condition. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed January 17, 1992 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. The arbitration decision filed on March 26, 1990, found claimant to be 51 years old and the holder of a GED with some college course work, but no degree. Ms. Hammer commenced employment as a mental health worker/resident treatment worker on September 6, 1976. The work of generally giving care to Page 2 residents was physically demanding, as she was required to turn, feed and bathe residents frequently weighing over 150 pounds. Prior to this job, claimant had work experience as a waitress and bartender. The work injury occurred on November 7, 1985, when a recalcitrant resident buckled his knees while claimant was supporting him. As the result of a back injury at L4-5 suffered during this incident, claimant underwent surgery at that level on April 6, 1986. Upon her return to work, she was assigned to the substance abuse unit, which generally entailed lighter duty, but also involved the potential of physically demanding situations, such as altercations with patients. Claimant worked at this job until pain became intolerable and she was unable to continue. She thereupon underwent a second surgical procedure to the same level on October 7, 1988. Following this surgery, claimant was notified that her position had been filled, although she had recall rights if she were to be released by her treating physician. The arbitration decision essentially found that claimant willingly failed to return. At the time of the arbitration hearing, claimant had not sought employment at all because she believed herself an unreliable employee as she was unfit to look for work due to residuals of the back injury. She believed herself unable to engage in vocational rehabilitation or to work in any capacity. As to her symptoms, claimant testified in her arbitration hearing as follows: Q. Following the surgery that you had at the Omaha Methodist Hospital on October 7th, 1988, did you feel significantly better? A. No. Q. Or was there an improvement? A. The only improvement that I've had since that surgery, that my leg doesn't hurt as bad as it did prior. My back still feels the same. Q. And what are the symptoms that bother you, Ms. Hammer? A. Constantly back pain. Sometimes there's sharp jabbing pains. Bending is difficult. If I walk a period of time, my leg gets numb. Sitting and standing over a period -- I have to move a lot in order -- seems like there's pressure. I have to move a lot. Q. Are you able to sleep through the night? A. No. Q. Are you able to ride long distances in a car? Page 3 A. No. (Transcript of Arbitration Proceedings, page 31, lines 3 through 23) This is consistent with Ms. Hammer's complaints during the course of this litigation and prior to the arbitration hearing. The petition for review-reopening now under consideration was filed on June 7, 1990, only two and one-half months after the arbitration decision was filed, and two days after claimant voluntarily dismissed her appeal of that decision. In her deposition of March 19, 1991, claimant was asked to recite her current complaints: A. To make it very simple, it's just bothered me since I had surgery. I believe I can feel a ruptured disc. I don't know what the doctors can say. At times, it's just -- in layman's terms, it feels like -- the only way I can relate it is like a balloon is being blown up and it swells and a lot of pressure is being put on my back. And it hurts quite bad. I've never totally been without pain. The medication I'm on will take the sharpness away. There's numbness in the left leg, the hips, and when I walk, there's numbness in the right leg also. And it's just quite uncomfortable, and I don't like it. I wish something could be done, because I don't think it's a very good future for anybody. Q. Okay. Any other symptoms? You described it felt like a balloon being blown up. A. There's -- It feels like, sometimes, somebody is putting their hands on my shoulders and pushing me to -- to where you can't go any further. There's a lot of pressure. There's pressure around the hips. It feels like I'm being torn apart. Sometimes, it bothers -- like it takes me awhile to use anything with my arms. Just kind of everything. And then the back of my neck, if you sit too long, ride in a car and all that stuff, it just feels like somebody is pushing my head down in. And there's just a lot of pressure. (Deposition of Betty Hammer, joint exhibit 51, page 3, line 13 through page 4, line 12) However, the following exchange is also worthy of note: Q. Okay. And how are these complaints different than they were before the hearing that we had in January? A. They aren't. Things just have not improved. (Deposition of Betty Hammer, joint exhibit 51, page 5, lines 8 through line 10) Page 4 In her hearing testimony, claimant complained of increased jabbing and burning pains, stated that she cannot bend at all, and complained that her pain is even more unbearable since she discontinued medications in July 1991 at the advice of Leslie C. Hellbusch, M.D., and the University of Nebraska Medical Center Pain Clinic. The extent of her symptomatology is now such that she is unable to walk for more than approximately ten minutes. At the time of her deposition, six months earlier, she was walking twice a day, sometimes as much as a mile and one-half plus a three-mile walk. Claimant further complained at hearing of intermittent spasms and the need to frequently lie down. Her leg goes numb with either extended sitting or standing. The arbitration decision pointed out that the following restrictions were suggested by Frank P. LaMarte, M.D.: 1. No frequent or continuous bending, twisting or stooping. 2. No lifting greater than 15 pounds more than six times per hour. 3. Ability to alternate sitting and standing as needed. 4. Work four hours per day, five days per week, for the first month and advance one hour each day per month, as tolerated, until she has reached an eight hour day. (Arbitration Decision, filed March 26, 1990, page 6) And by Leslie C. Hellbusch, M.D.: I have recommended that she have a permanent twenty pound lifting restriction and that she should have no repetitive bending of her lower back. It would be best for her to be allowed to move from a sitting to a standing position and vice versa on the job as needed. She has had some experience working on "substance abuse" and states that she can do this type of work and that it is within the restrictions placed on her. I have encouraged her to gradually increase her walking activity and have encouraged her to try to get back to work in April of 1989. (Arbitration Decision, filed March 26, 1990, page 7) The arbitration decision noted that John C. Goldner, M.D., opined that claimant was capable of functioning in a job consistent with her education, training and experience, but that it should not involve lifting or bending. Claimant has seen Dr. Hellbusch, a neurosurgeon, since the previous hearing. In a letter to claimant's attorney dated June 5, 1990, he refused to alter his previous assessment of claimant's physical impairment, with respect to chronic pain patients and treatment modalities relating thereto. Dr. Eaves, who sees lower back pain patients perhaps three times a week, initially treated claimant with pain medication and referred her to Clarinda Municipal Hospital for physical therapy. By May 22, 1990, claimant was complaining of increased pain in the lower back and numbness in the ball of the left foot. Dr. Eaves scheduled her for a magnetic resonance imaging examination (MRI). This was performed on the same day by Kevin M. Cawley, M.D. Dr. Cawley's report found a focal herniated disc present in the paracentral region of L3-4, extending to the left and encroaching on the nerve root sleeve (this at the level above the two surgical procedures), with degenerative disc disease and previous surgery found at L4-5 with postoperative fibrosis present adjacent to the nerve root sleeve on the left and minimal loss of signal density consistent with degenerative disc disease at L5-S1, although no herniation was detected at that level. Claimant was seen on June 7, 1990, by Behrouz Rassekh, M.D. Apparently by coincidence, Dr. Rassekh was also furnished an MRI report and film, presumably the May 22 film.*****On June 15 he wrote of multiple complaints but no objective finding except the absence of right ankle reflex and noted that the MRI indicated some bulging at L4-5 "which is very common finding with some post-operative changes." He did not recommend further surgery or other therapy except continued exercise and believed claimant could do sedentary work which did not require repeated bending or lifting over 50 pounds. Based on Dr. Cawley's MRI report, Dr. Eaves testified that a herniation at L3-4 on the left could account for some of Page 6 claimant's symptomatology and, if it was not present previously, was indicative of a new finding which would aggravate her present condition. He further noted that scar formation in the area of the previous surgical procedures was consistent with claimant's subjective complaints of pain. Dr. Eaves thereupon referred claimant to a rehabilitation specialist and physiatrist, Jay J. Parsow, M.D. Dr. Parsow's evaluation found claimant's range of motion and flexion limited to the mid-normal range (her "bending" range of motion was described as much less than that by claimant at hearing). Tenderness was noted at the L4 and L5 spinous processes as well as bilaterally at the L3-4, L4-5 and L5-S1 facet joints. Dr. Parsow found muscle spasms present diffusely. The left sciatic notch was tender, but the right was not. Neurologically, Dr. Parsow found sensation diminished on the left L5 and S1 dermatomes by 25 percent. His review of the May 22 lumbar MRI noted the presence of disc desiccation at L4-5 and L5-S1, a bilateral decrease in foraminal size at L5, right greater than left, and disc bulges at L3-4 on the left and centrally at L5-S1. Dr. Parsow's impression was of: 1. Status post laminectomy/discectomy syndrome (failed back surgery). 2. Persistent lumbar disc with radiculopathy. 3. Lumbar facet syndrome. 4. Possible segmental instability. (Joint exhibit 5, page 3) Dr. Parsow also performed an EMG on June 19, 1990, leading to an impression of electrical evidence of a bilateral L5-S1 radiculopathy but no evidence of peripheral neuropathy or significant peroneal nerve entrapment syndrome. In a letter of August 22, 1990 to claimant's attorney, Dr. Parsow declined to suggest physical restrictions as "highly arbitrary" and limited his opinion to an impairment rating of 23 percent of the body as a whole. Dr. Eaves testified in light of his review of the MRI scan and Dr. Parsow's report that complaints of chronic or persistent pain were credible and that fibrotic tissue can create pain such as that of which Ms. Hammer complains. After seeing claimant again on January 16 and March 5, 1991, he believed that claimant showed some worsening of symptoms and that she was not capable of engaging in a 40-hour week, 50-week per year job. In his letter of March 11, 1991, Dr. Eaves opined that claimant should not lift over 10 pounds, could not stand in one spot for over 10-15 minutes, could not sit for any longer period of time, and that stooping, climbing, kneeling, crawling and anything over limited travel were "out." Claimant was seen for follow-up by Dr. Hellbusch on June 12, 1990. He commented that magnetic resonance imaging on May 22 Page 7 showed decreased signal intensity at L3-4, L4-5 and L5-S1, that some epidural fibrosis was noted at L4-5 on the left and that claimant was noted to have a left disc bulge at L3-4. He opined that claimant could return to work within restrictions previously listed including permanent 20-pound lifting restriction, permanent no repetitive bending of the lower back and no riding a motorcycle (claimant had shortly following her second surgery asked whether she could ride a motorcycle, which he interpreted as sending "mixed messages" about the level of her discomfort). Claimant returned to Dr. Hellbusch on March 11, 1991, again complaining of pain in the low back, mid-back and neck. Pain was described as about the same in terms of severity. She was still walking 3-4 miles per day. Dr. Hellbusch found no neurologic deficit and a good range of motion in the neck and back. He suggested that claimant discontinue pain medication and visit the pain clinic at the University of Nebraska Medical Center. Ms. Hammer was released on a PRN (as needed) basis. Chart notes of the University of Nebraska Medical Center Pain Program reflect that claimant was seen on May 24, 1991, for evaluation. Initial impression reported by co-medical director Nikola Boskovski, M.D., on May 24, 1991, was of significant chronic lower back pain, with claimant describing a change in the involvement of pain and numbness in the left leg during the past 6-7 months. A repeat magnetic resonance imaging study was ordered and performed on June 1, 1991. It proved to be at odds with the May 22, 1990 MRI. As read by Keith Kohatsu, M.D., and Francis Hahn, M.D., the examination showed post-operative changes of laminectomy at L4-5, but no evidence of recurrent disc disease or post-operative fibrosis to account for neurologic symptoms. Faced with this discrepancy, Dr. Boskovski suggested that it was unnecessary to have a third examination performed, but that claimant should "just take both MRI's for interpretation to an independent radiologist of your choice." This has not been done. Dr. Boskovski also reminded claimant that, "[a]s we pointed out during your last visit we believe your pain is real and it is your right to search for best answer and treatment." Claimant was discharged before completion of the pain management program. Her participation in some sessions was reluctant and she refused to participate in others. In particular, she was especially reluctant to participate in psychological aspects of the program, preferring physical therapy components. Clinical psychologist James Willcockson, Ph.D., noted in the discharge summary that claimant's prognosis for recovery, rehabilitation and pain management was not good. Dr. Willcockson specified that claimant harbored a great deal of anger, resentment and hostility regarding her injury, the litigation process and ineffectual medical treatment. As noted in the arbitration decision, this has been an ongoing theme. Claimant has submitted unpaid medical bills from Emanuel Medical Center, Clarinda Treatment Complex, Dr. Rassekh, Dr. Eaves and Dr. Parsow. All of these were unauthorized. Claimant also submitted a $61.00 bill from Midwest Neurosurgery (Dr. Page 8 Hellbusch) relative to an office visit on June 12, 1990. Defendants also assert this was unauthorized. However, Dr. Hellbusch was the ongoing treating physician and defendants have been found liable for this injury, which includes necessary lifetime medical expenses under Iowa Code section 85.27. Claimant was never advised that authorization was withdrawn with respect to Dr. Hellbusch. In fact, defendants' attorney wrote to claimant's attorney on July 5, 1990, specifically authorizing Dr. Hellbusch "to provide any and all necessary medical care for Ms. Hammer's work-related back injury." Ms. Hammer also asserts that she has conducted a search for work since the arbitration hearing, claiming that she has received no job offers. The evidence is in conflict on this topic. Claimant's exhibit 7 purports to be a handwritten record of that work search. It was apparently prepared all at one time and appears to indiscriminately list actual applications, mailing of resumes, visits to a local Job Service office, telephone conversations and even the taking of standardized aptitude tests. These categories are not well distinguished. However, it appears that claimant may have made something on the order of 20 personal job applications, plus repeat visits to some, such as the Page County Jail and Bethesda Care Center. Claimant lists "Bethesda Care-Aide" in June 1990. Also in evidence is the July 23, 1990 affidavit of Debra Kirchner, assistant director of nursing for Bethesda Care Center. Ms. Kirchner so testified that claimant personally applied for a nurse's aide position on May 25, 1990 on a date when the care center had at least one such opening available. She further reports: She stated that she had had back surgery in the past, but did not at any time tell me that she would be unable to perform the functions of a nurse's aide. It appeared from her application that she had much past experience in this position. I offered her the job, which she accepted, and set up an appointment for a physical. She left saying she had a doctor's appointment. Approximately one hour later, she returned and told me she would be unable to accept the nurse's aide position because she had a slipped disc in her back. I have not seen her since. (Joint exhibit 41) Claimant testified that no job was offered her by Bethesda Care Center, but that she received a telephone call asking her to sign a release and was not advised of the necessity to take a physical examination (or that she had been hired). It is clear from the detailed affidavit of Debra Kirchner that she recalls this incident well. Kirchner is a disinterested witness and her version of events is more credible than that of claimant. Page 9 The applications in evidence show some variance as to how claimant has presented her back condition. In a May 15, 1990, application to Clarinda Municipal Hospital, claimant completed a line captioned "Physical Disabilities or Chronic Illnesses" by simply noting back surgery 1988. In an application presented to The Clarinda Company on July 19, 1990, she checked the "Yes" box when asked if she was physically or otherwise "unable to perform" the duties of the job for which she made application, and added details concerning her restrictions. In a resume offered to the Second Judicial District Department of Correctional Services, claimant noted that she had "limited disabilities," but rather interestingly reported that bowling was an activity she enjoys. That resume was sent on January 15, 1991. It remains the case that claimant has not been offered continued employment by the Clarinda Mental Health Center in particular or the State of Iowa otherwise. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed January 17, 1992 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). ***** Page 10 [The medical record fails to show a change of physical condition since the arbitration award. Although a change of condition may include either a condition that was expected to improve but did not improve, or did not improve to the extent contemplated (Meyers, supra), there is no evidence that claimant's condition was expected to improve at the time of the arbitration decision, but failed to do so. A change of condition can also occur if the original arbitration award was based on a mistake or misconception as to claimant's actual condition. Although a claimant cannot utilize the review-reopening process to relitigate the arbitration decision under Gosek v. Garner and Stiles Co., 158 N.W.2d 731, 735 (Iowa 1968), an award based on a mistake can be re-examined in review-reopening. However, neither the Meyers failure to improve situation or the Gosek mistake of fact situation exist here. There is no medical evidence that claimant's condition was expected to improve. There is no medical evidence that claimant's condition has, since the original award, failed to improve as expected. Similarly, there is no medical evidence that the original award was based on mistaken medical evidence. Rather, the only change of condition claimant has shown is a 1990 MRI that reveals post-operative fibrosis. There is no medical evidence that this post-operative fibrosis is causing claimant's current condition. Claimant's complaints prior to the arbitration decision are essentially the same as she had at the time of the review-reopening hearing. There is no medical opinion from a physician noting any increase in claimant's limitations, or relating any increase to her post-operative fibrosis distinct from her original injury. Claimant describes her pain as worse, but there are no medical findings to corroborate this and there is no medical evidence to indicate why her pain would be worse. Claimant's post-operative fibrosis is a result of her two surgeries, both of which occurred prior to the original arbitration hearing. There is no showing that the fibrosis following these surgeries was any worse than would normally be expected. An opinion by a physician that claimant had suffered an abnormal amount of fibrosis following her surgeries, and that this abnormal amount of fibrosis was causing increased pain or limitations, might form the basis for a change of condition. But such an opinion is lacking in the record. Absent such an opinion, it must be presumed that normal fibrosis following two surgeries and its' normal effects upon a patient were contemplated in the original award. Other factors in the record lead to the same conclusion. Claimant herself when asked how her symptoms differed after the original award as opposed to before the arbitration hearing, stated that they were not worse. Rather, she stated she brought this action because they had not gotten better. Yet, there is no evidence claimant was told by a physician her complaints would improve. Claimant bears the burden of proof. Page 11 In addition, the 1991 MRI appears to contradict, or at least not confirm, the 1990 MRI claimant bases her review-reopening action on. Thus, even claimant's evidence that post-operative fibrosis exists is to some extent less than clear. Finally, claimant's filing of this action so close in time to the initial award in arbitration may indicate that this action represents as much an attempt to circumvent what was perceived as an inadequate award, as it does a genuine change of condition. Claimant has failed to carry her burden of proof to establish that she has suffered a substantial change of condition subsequent to her prior award.] WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant shall take nothing further from these proceedings. That defendants shall pay the costs of this matter including the transcription of the hearing. Signed and filed this ____ day of April, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 3rd Avenue P O Box 1588 Council Bluffs, Iowa 51502 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1404; 1804 Filed April 30, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BETTY HAMMER, : : Claimant, : : vs. : : File No. 888785 CLARINDA TREATMENT CENTER, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1404; 1804 Claimant's fibrosis from surgery was not shown to have been unanticipated or that the condition had failed to improve as expected. Claimant acknowledged her condition was the same as prior to the arbitration decision. Claimant filed her review-reopening action a short time after the arbitration decision. Held that claimant had failed to carry her burden of proof to show a change of condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY HAMMER, Claimant, VS. File Nos. 888785 & 821621 CLARINDA TREATMENT CENTER, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendant. INTRODUCTION These are arbitration proceedings brought by Betty Hammer, claimant, against the Clarinda Treatment Center, employer, and the State of Iowa, self-insured, defendant. The cases were heard by the undersigned on January 17, 1990, in Council Bluffs, Iowa. During the hearing, claimant withdrew her claim under file number 821621. The matter is hereby considered dismissed. The record consists of joint exhibits 1 to 102. Additionally, the record consists of the testimony of claimant, as well as the testimonies of Dorothy Journey, Greg Hammer, Becky Shilhanek and Laura Harms. ISSUES As a result of the prehearing report and order submitted and approved on January 17, 1990, the issues presented by the parties are: 1. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; and, 2. Whether claimant is entitled to medical benefits under section 85.27. HAMMER V. CLARINDA TREATMENT CENTER Page 2 STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of-an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on November 7, 1985, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary and permanent disability; 4. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $182.49 per week; 6. Defendant paid and is entitled to a credit under section 85.38(2) for previous payment of the following benefits under a non-occupational group plan: long-term disability income in the amount of $8,115.58; and, 7. Defendant paid claimant 141 6/7 weeks of compensation at the rate of $182.49 per week prior to hearing. FACTS PRESENTED Claimant is 51 years old. She has a GED and she has taken college course work, but she holds no degree. Claimant commenced her employment with defendant on September 6, 1976. She was hired as a mental health worker/resident treatment worker. Claimant described her duties as supervising residents, giving medication, transporting residents and generally caring for residents. According to her testimony, claimant was required to lift a minimum of 150 pounds, turn residents, feed and bathe them and minimize altercations with residents. Claimant related the work injury on November 7, 1985. She reported there was an altercation between a resident and her. The resident was ambulatory and he buckled his knees while claimant was transporting him. Claimant stated she supported the patient back to his room with another employee. Claimant reported she felt excruciating pain in her low back and down her leg, but she continued to work. HAMMER V. CLARINDA TREATMENT CENTER Page 3 Claimant testified she eventually had surgery on April 6, 1986. She indicated she returned to work on*October 11, 1986 where she was assigned to the substance abuse unit, a lighter duty position. Claimant stated she worked on this unit until October of 1988, when she reported to her supervisor that her pain was intolerable and claimant was unable to continue working. Claimant related she had a second surgery on October 7, 1988 and that this surgery only relieved claimant's leg pain. Claimant testified she attempted therapy through Back Care, Inc., but she was unable to complete therapy on one of the machines. As a consequence, claimant reported she was dropped from the program, but she was not told she could return to work. Claimant also testified she returned to the treatment complex so she could be placed on a recall list. She stated she was terminated on March 6, 1989 and that she was notified by letter that her position was filled and she was no longer on the payroll. Claimant testified she had not sought employment in either Clarinda or in Omaha because she was not a reliable employee and she was unfit to look for work. She reported she had not sought employment since April of 1986. She also reported she was not able to engage in vocational rehabilitation or to work in any capacity. Dorothy Journey testified at the hearing. She stated she was a good friend of claimant. She also testified that on September 11, 1986, at the Leisure Lounge, claimant waltzed for approximately one minute but she voiced complaints of pain and stopped. Greg Hammer, son of claimant, testified. He testified that since October of 1988, claimant's activities had been limited. She, according to his testimony, could only walk for a 30 minute duration. Becky Shilhanek testified for defendant. She stated she had been the director of nursing at Clarinda for four to five years and she was claimant's supervisor. Ms. Shilhanek indicated she was aware of both of claimant's surgeries. The director of nursing testified claimant informed her she was in constant pain and could not take the sitting and standing on the alcohol and drug unit. Ms. Shilhanek indicated a position on the alcohol and drug unit did not require bending and lifting and an employee was free to move about the unit. The director of nursing further indicated claimant was released to return to work in April of 1989, but claimant did not do so. Rather, claimant obtained benefits HAMMER V. CLARINDA TREATMENT CENTER Page 4 through the long-term disability policy and she was dropped from the payroll effective with the date of the disability benefits. According to Ms. Shilhanek, claimant had recall rights whenever she was released from her physician's care. Finally, the witness-testified that claimant could have returned to work in,the substance abuse unit. Laura Harms testified she was claimant's supervisor from April of 1988 to October of 1988 and claimant's duties at this time were of the light duty nature. Ms. Harms testified claimant never appeared to be suffering from back pain and that claimant was dancing the jitterbug on the day before her first surgery. APPLICABLE LAW An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer HAMMER V. CLARINDA TREATMENT CENTER Page 5 for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age.a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for noncompensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. HAMMER V. CLARINDA TREATMENT CENTER Page 6 When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive.labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). ANALYSIS The first issue to address is the extent of permanent partial disability benefits to which claimant is entitled. R. Schuyler Gooding, M.D., a treating physician, assessed a 15 percent functional impairment to claimant's condition. However, his rating was performed after the first surgery and before the second one. Frank P. LaMarte, M.D., determined claimant had an 18 percent functional impairment. Dr. LaMarte also determined claimant was employable with the following instructions: 1. No frequent or continuous bending, twisting or stooping. 2. No lifting greater than 15 pounds more than six times per hour. 3. Ability to alternate sitting and standing as needed ' 4. Work four hours per day, five days per week, for the first month and advance one hour each day per month, as tolerated, until she has reached an eight hour day. HAMMER V. CLARINDA TREATMENT CENTER Page 7 Another treating physician, Leslie C. Hellbusch, M.D., determined claimant had a 25 percent functional impairment. He opined claimant was under the subsequent restrictions: I have recommended that she have a permanent twenty pound lifting restriction and that she should have no repetitive bending of her lower back. It would be best for her to be allowed to move from a sitting to a standing position and vice versa on the job as needed. She has had some experience working on "substance abuse" and states that she can do this type of work and that it is within the restrictions placed on her. I have encouraged her to gradually increase her walking activity and have encouraged her to try to get back to work in April of 1989. Ernest M. Found, Jr., M.D., and assistant professor at the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals and Clinics did not assess a functional impairment. He did recommend the following: 1) During your functional capacity assessment you declined to do many of the activities in spite of having been told that your lack of participation would be documented. Because you completed so few of the tasks that are required for such an evaluation, we have no information on which to base recommendations regarding your current abilities or limitations. 2) During your cardiovascular evaluation, you were tested on the treadmill, however, after three minutes at a very minimal level, you stopped the test because you stated that you were unable to maintain the expected pace on the treadmill due to your back discomfort. Our therapist was not able to do an adequate test, however, based on your performance during this testing, you would be suitable for only light work tasks. 3) You could improve your overall health by discontinuing smoking. 4) We are unable to do an impairment rating because of your lack of compliance with the testing. Should you need such a rating, it would be more appropriate to set up an appointment with the surgeon who performed your prior surgeries. 5) We have no recommendations for your future treatment. HAMMER V. CLARINDA TREATMENT CENTER Page 8 John C. Goldner, M.D., did not provide a functional impairment rating. Nevertheless, he opined: "Claimant was capable of function[ing] in a job that would be consistent with her education, training and experience. I do not feel that this should involve lifting or bending and I have completed the medical questionnaire which you provided me in this regard. I feel her condition likely will remain stable although it possibly could improve somewhat, perhaps with the use of medications ... " After reviewing the medical opinions of the above, it is the determination of the undersigned that claimant has a functional impairment of 18 percent. Claimant asserts she is permanently and totally disabled under Guyton. Such is not the case. Claimant is capable of obtaining employment in a well known branch of the labor market. Claimant's long standing treating physician released claimant to work in the substance abuse unit at Clarinda on April 29, 1989. No physician stated claimant was incapable of working. Claimant did not return to work. This was a personal decision. She did not even complete the requisite forms so she could be placed on a recall list at Clarinda. Only James T. Rogers, a certified professional counselor, opined claimant is unemployable. He attributed the unemployability to claimant's subjective complaints of pain and not to objective findings. Not much weight is accorded to Mr. Rogers, opinion as he saw claimant on only one occasion. Claimant is definitely not motivated to return to her former position. Nor is she motivated to seek other employment. Claimant is not even motivated enough to continue her physical therapy. Claimant has two years of college, yet she has made no attempt to return to school. From the evidence presented, it appears claimant's "anger, frustration and bitterness" (Exhibit 1) have interfered with any progress she could obtain. All of claimant's records are filled with comments such as, "Betty is very much focused on her pain... " (Ex. 3), and: (I]t is my impression that the anger, frustration and bitterness that Betty Hammer feels at the Iowa Workers, Compensation system, the Clarinda Mental Health Institute, and the medical system is completely dominating her thoughts at this time and she simply could not today, break free from this bitterness and anger to discuss any sort of an approach which would help to make her more functional. (Ex. 1) HAMMER V. CLARINDA TREATMENT CENTER Page 9 Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has a permanent partial disability to the body as a whole in the sum of 20 percent. This finding is based upon: 1) the aforementioned considerations; 2) based upon the personal observation of claimant; 3) based upon claimant's testimony; and 4) based upon agency expertise (Iowa Administrative Procedures Act 17A.14(s). The next issue to address is the extent of entitlement to healing period benefits. It appears undisputed. Claimant was off work from April 4, 1986 to October 11, 1986, (27 weeks) and from October 17, 1988 to the present but claimant was able to return to work on April 24, 1988, per Dr. Hellbusch. It is the determination of the undersigned that claimant is entitled to 55.429 weeks of healing period benefits. The final issue to address is the extent of medical benefits under section 85.27 to which claimant is entitled. Claimant is seeking payment for the following: 1. Methodist Hospital 8303 Dodge Street Omaha, NE 68114 (8/11/88) $ 455.00 (9/9/88 -9/14/88) 554.00 (10/7/88 -10/11/88) 3,240.04 2. Midwest Neurosurgery, P.C. 8111 Dodge Street, Suite 339 Omaha, NE 68114 (8/11/88 - 10/7/88) 2,742.00 3. The Pathology Center 8300 Dodge Street Omaha, NE 68114 (10/7/88) 42.70 4. Center for Diagnostic Imaging 8303 Dodge Street Omaha, NE 68114 (8/11/88) 155.00 (9/9/88) 211.00 (10/7/88) 24.00 5. The University of Iowa Hospitals and Clinics (11/30/89) 67.75 TOTAL $7,491.49 HAMMER V. CLARINDA TREATMENT CENTER Page 10 The expenses appear necessary and reasonable. It is true claimant did not notify defendant until the "eleventh hour" of her pending surgery by Dr. Hellbusch. Nevertheless, defendant did not voice any complaints to treatment by Dr. Hellbusch or any of the above. It is the decision of this deputy industrial commissioner that defendant acquiesced to the medical treatment. Therefore, defendant is liable for the above expenses. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based upon the stipulations, the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: Finding 1. Claimant withdrew file number 821621 during the hearing. Conclusion A. Claimant takes nothing from file number 821621. Finding 2. Claimant has proven by a preponderance of the evidence that she has a functional impairment of 18 percent as a result of her work injury on November 7, 1985. Finding 3. Claimant had surgeries in 1986 and in 1988. Finding 4. Claimant was released to return to work on April 24, 1989, by her treating physician, Dr. Hellbusch. Finding 5. Claimant did not return to work on April 24, 1989, or on any date subsequent. Finding 6. Claimant is capable of maintaining meaningful employment. Conclusion B. Claimant has met her burden of proving she has a 20 percent permanent partial disability attributable to her work injury on November 7, 1985. Conclusion C. Claimant has met her burden of providing she is entitled to healing period benefits for 55.429 weeks. Finding 7. Claimant has incurred medical expenses as follows: 1. Methodist Hospital 8303 Dodge Street Omaha, NE 68114 (8/11/88) $ 455.00 (9/9/88 - 9/14/88) 554.00 (10/7/88 - 10/11/88) 3,240.04 HAMMER V. CLARINDA TREATMENT CENTER Page 11 2. Midwest Neurosurgery, P.C. 8111 Dodge Street, Suite 339 Omaha,.NE 68114 (8/11/88 - 10/7/88) 2,742.00 3. The Pathology Center 8300 Dodge Street Omaha, NE 68114 (10/7/88) 42.70 4. Center for Diagnostic Imaging 8303 Dodge Street Omaha, NE 68114 (8/11/88) 155.00 (9/9/88) 211.00 (10/7/88) 24.00 5. The University of Iowa Hospitals and clinics (11/30/89) 67.75 TOTAL $7,491.49 Conclusion D. Defendant is liable for the aforementioned medical expenses. ORDER THEREFORE, with respect to file 821621, claimant will take nothing from these proceedings. THEREFORE, with respect to file 888785, defendant is to pay, unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of one hundred eighty-two and 49/100 dollars (182.49) per week as a result of the injury on November 7, 1985. Defendant is to also pay unto claimant fifty-five point four-two-nine (55.429) weeks of healing period benefits at the stipulated rate of one hundred eighty-two and 49/100 dollars ($182.49) per week as a result of the injury on November 7, 1985. Defendant is responsible for medical benefits in the sum of seven thousand four hundred ninety-one and 49/100 dollars (7,491.49). Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to be given credit for all benefits previously paid claimant as stipulated by the parties. HAMMER V. CLARINDA TREATMENT CENTER Page 12 Costs of file number 821621 are assessed to claimant. Costs of file number 888785 are assessed to defendant. The following costs are allowed: 1. August 1988 to Midwest Neurosurgery for medical report $80.00; 2. September 1988 to Midwest Neurosurgery for medical report - $40.00; 3. November 17, 1988 to Iowa Industrial commissioner for filing fee - $65.00; 4. March 9, 1989 to Blair and Associates for deposition $59.15; 5. March 17, 1989 to Midwest Neurosurgery for medical report - $30.00; 6. October 18, 1989 to Midwest Neurosurgery for medical report - $20.00; 7. October 20, 1989 to Midlands Rehabilitation for evaluation and report - $150.00; 8. January 12, 1990 to Blair and Associates for deposition $31.00; 9. January 15, 1990 to Kwik Kopy for photocopies of Exhibits - $164.94 TOTAL - $640.09 Defendant shall file a claim activity report upon payment of this award. Signed and filed this 26th day of March, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER HAMMER V. CLARINDA TREATMENT CENTER Page 13 Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Ave P 0 Box 1588 Council Bluffs IA 51502 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 1803; 2900 Filed March 26, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY HAMMER, Claimant, VS. File Nos. 888785 & 821621 CLARINDA TREATMENT CENTER, A R B I T R A T I 0 N Employer,. D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendant. 2900 Claimant withdrew her claim for file number 821621 at the hearing. 1803 Claimant awarded 20 percent permanent partial disability where claimant was functionally impaired in the amount of 18 percent. Claimant was released to return to work by her treating physician. However, claimant voluntarily determined not to return. Claimant was totally unmotivated to seek employment or to return to college. Claimant held not odd-lot employee under Guyton. Page 1 before the iowa industrial commissioner ____________________________________________________________ : STEVEN M. GERDES, : : Claimant, : : vs. : : File No. 888788 DETERMANN INDUSTRIES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : BITUMINOUS CASUALTY : CORPORATION, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Steven M. Gerdes, claimant, against Determann Industries, Inc., employer (hereinafter referred to as Determann), and Bituminous Casualty Corporation, insurance carrier, defen dants, for workers' compensation benefits as a result of an alleged injury on September 24, 1988. On December 19, 1990, 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 con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits received into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Determann at the time of the alleged injury. 2. Claimant is seeking temporary total disability or healing period benefits from October 1, 1988 through March 27, 1989, and defendants agree that claimant was not working during this period of time. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disabil ity to the body as a whole. 4. If permanent disability benefits are awarded, they shall begin as of March 28, 1989. Page 2 5. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $257.07. 6. The medical bills submitted by claimant were fair and reasonable but their causal connection to a work injury remained at issue. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disabil ity benefits; and, III. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during the hearing as to whether an injury, in fact, occurred and its nature and extent. From his demeanor while testifying, claimant is found credible. Claimant has worked for Determann since September 1980 and continues to do so at the present time. Claimant is a warehouseman and operator of a fork lift. Claimant's job has not changed as a result of the injury. Claimant was aware at the time of the injury that he was to report a work injury to his superiors at Determann. On or about September 24, 1988, claimant suffered an injury to his low back which arose out of and in the course of his employment at Determann. The injury was a herniated disc between two vertebrae in the low back. The herniation occurred as a result of twisting and pulling on a railroad car door the claimant was about to unload. Defendants con tend that the incident did not happen. There is no witness as claimant's fellow worker was briefly absent from the scene to do paperwork in an office area. The finding of a work injury is based substantially upon claimant's credibility and that claimant's account of the incident is compatible with the description of the injury by his treating orthopedic surgeon, Jay P. Ginther, M.D. All of Dr. Ginther's views are uncontroverted in the record. Claimant testified that he felt a pull in his back during the door incident but he believed that the condition was not serious and he continued working. He stated that he believes that he told his foreman that day but that his foreman did not take the report seriously or forgot about Page 3 it. Claimant said that over the next few days he continued working but that his back continued to bother him. His activity not only consisted of work duties of bending and lifting but automotive work at home which also involved bending and some lifting. Claimant denies any heavy lifting while performing this home activity. Claimant's neighbor verified that claimant complained of the door incident at work after the incident while he was assisting claimant in performing the auto repair work at home. This neighbor also verified claimant continued to have some back problems and did not lift heavy objects during his home activities. Defendants' position is based upon the delay between the door opening incident that occurred on a Saturday and the onset of severe pain on the following Friday. Claimant did not seek treatment until the Saturday after the onset of severe pain, one week after the door incident. Also, the terminal manager at Determann testified that claimant did not tell him of any injury when claimant called in to tell him that he would not be reporting to work due to back and leg problems. Defendants' position was not convincing. As explained by Dr. Ginther, the door incident probably rup tured the disc but it was not until a period of time later that the disc fragment migrated to an area which would cause severe pain. This migration would be the result of physical activity such as bending during the intervening days. However, Dr. Ginther was clear that the critical problem was the ruptured disc fragment and not the activity causing the fragment to migrate. With reference to the terminal man ager's testimony, it is conceivable that he would have a foggy memory of the incident. However, it also would not be unusual for claimant to not know what had happened and would not realize that he had suffered an actual injury. Also, claimant saw his physician on the same day he talked to the terminal manager and clearly reported the incident with the door. The injury of September 24, 1988, was a cause of claimant's absence from work as stipulated from October 1, 1988 through March 27, 1989. Following his first office visit to the Bluff Medical Clinic on October 1, 1988, claimant was treated primarily by Dr. Ginther who eventually surgically repaired the ruptured disc on October 10, 1988. Following surgery, claimant underwent an extensive physical therapy and work hardening program which gradually improved his condition. Claimant was released to light duty work on March 28, 1989. Claimant's restrictions were gradually relaxed over the next several months following his return to work. As a result of the work injury of September 24, 1988, claimant has a 10 percent permanent partial impairment to the body as a whole. Also, as a result of the injury, claimant has incurred permanent restrictions upon his activ ity by Dr. Ginther consisting now of no lifting over 60 pounds and no heavy impact activity. Claimant had no his tory of back problems before September 24, 1988. Claimant currently suffers regular muscle spasms and occasional back and leg pain. Claimant continues to suffer swelling of his foot. All of this is due to the work injury according to Page 4 Dr. Ginther. Claimant is severely restricted in his outside work/sporting activities and auto repair work. As a result of the work injury of September 24, 1988, and the resulting permanent partial impairment, claimant has suffered a 10 percent loss of earning capacity. The fact that the percentage of loss of earning capacity coincides with the permanent partial impairment finding is only coin cidental. Claimant's medical condition before the work injury was excellent and he had no functional impairment or ascertainable disabilities. Claimant has able to fully per form physical tasks involving heavy and repetitive lifting, bending, twisting and stooping. Due to the injury and phys ical limitations, claimant's medical condition prevents him from performing very heavy work. However, claimant is 32 years of age and relatively young. He had a good result from the surgery. Claimant has a high school education. Claimant's past employment primarily consists of warehouse man and general laborer work but claimant is able to perform such work if it does not require lifting over 60 pounds. Claimant was able to return to work and now is earning higher wages than he earned at the time of the injury. Claimant regularly works in excess of 40 hours a week and sometimes up to 60 hours a week. Claimant is able to per form all assigned work albeit with pain in the evening hours. Claimant is not under active medical treatment and takes no prescription medications. Claimant currently appears to be engaged in suitable and stable employment. The medical expenses listed in the prehearing report are found to be reasonable and necessary treatment of the work injury of September 24, 1988. These expenses consist of treatment received by claimant from Dr. Ginther or treat ment provided to claimant under the direction of Dr. Ginther. Defendants have denied liability for this injury since the initial claim in October of 1988. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice, claimant established a work injury based upon his credible testimony and its consistency with the medical opinion offered in this case. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis Page 5 ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant has suffered a 10 percent loss of his earning capacity as a result of the work injury. Based upon such a finding of fact, claimant is entitled as a matter of law to 50 weeks of permanent partial disability benefits under Iowa Code sec tion 85.34(2)(u) which is 10 percent of 500 weeks, the maxi mum allowable for an injury to the body as a whole in that statutory subsection. Claimant is also entitled to weekly benefits for heal ing period under Iowa Code section 85.34 from the date of injury until he returns to work; until he is medically capa ble of returning to substantially similar work; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. Healing period benefits will be awarded for the period of time stipulated by the parties that claimant was off work as it was found that this absence from work was due to the work injury. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is enti tled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendants to make such pay ment. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). The expenses listed in the prehearing report were found causally connected to the injury and will be awarded. Page 6 order 1. Defendants shall pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred fifty-seven and 07/l00 dollars ($257.07) per week from March 28, 1989. 2. Defendants shall pay to claimant healing period benefits from October 1, 1988 through March 27, 1989, at the rate of two hundred fifty-seven and 07/l00 dollars ($257.07) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Defendants shall pay accrued weekly benefits in a lump sum. 5. Defendants shall receive a credit for previous pay ments of weekly medical benefits under a non-occupational group insurance plan under Iowa Code section 85.38(2), less any tax deductions from those payments and any attorney lien upon the recovered medical expenses. 6. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants shall pay the cost of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 8. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law 135 So LaSalle St Suite 1527 Chicago IL 60603 Ms. Vicki L. Seeck Page 7 Attorney at Law 600 Union Arcade Bldg Davenport IA 52801 5-1803 Filed April 25, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : STEVEN M. GERDES, : : Claimant, : : vs. : : File No. 888788 DETERMANN INDUSTRIES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : BITUMINOUS CASUALTY : CORPORATION, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 - Nonprecedential Extent of disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ALLEN R. SANDERS, Claimant, vs. File Nos. 1002289/888800 929385 SUPER VALU STORES, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 1, 1994 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Kevin Kirlin Attorney at Law 535 Insurance Exchange Bldg. Des Moines, Iowa 50309 Mr. Richard G. Book Attorney at Law 500 Liberty Bldg. 418 6th Ave. Des Moines, Iowa 50309 5-1803 Filed June 22, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALLEN R. SANDERS, Claimant, vs. File Nos. 1002289/888800 929385 SUPER VALU STORES, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Industrial disability determined. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALLEN R. SANDERS, : : Claimant, : : File Nos. 1002289 vs. : 888800 : 929385 SUPER VALU STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE These consolidated cases are upon petitions in arbitration filed by claimant Allen R. Sanders against employer Super Valu Stores, Inc., and its insurance carrier, Liberty Mutual Insurance Company. Claimant sustained injuries arising out of and in the course of employment September 1, 1988 (888800), September 7, 1989 (929385), and claims that he also did so on May 13, 1991 (1002289). A hearing was accordingly held in Des Moines, Iowa on December 7, 1993. The record consists of defendants' exhibits A-E, claimant's exhibits 16-20, and the testimony of claimant, George Pike and William Hart. Claimant's exhibit 20 consists of a letter written by claimant's attorney to a physician. The exhibit was admitted over objection, since it met the rather minimal requirements of Iowa Code section 17A.14(1), as it is not irrelevant, immaterial or unduly repetitious. It is, however, self serving and a form of manufactured evidence. In evaluating the evidence, claimant's exhibit 20 has not been accorded substantial weight. Prior to hearing, the parties filed a joint motion for protective order. With one slight modification, the joint motion was sustained at hearing. ISSUES The parties entered into the following stipulations: 1. An employment relationship existed between claimant and Super Valu Stores at the time of each alleged injury; 2. Claimant sustained injury arising out of and in the course of that employment on Page 2 September 1, 1988 and September 7, 1989; 3. The 1988 and 1989 injuries each caused temporary disability; 4. Although the parties dispute the appropriate rate of compensation and whether various periods of disability are attributable to the 1988 injury, as opposed to the 1989 injury or the 1991 claimed injury, claimant is entitled to temporary total disability or healing period benefits from September 2 through September 25, 1988; October 3, 1988 through January 10, 1989; January 22 through January 24, 1989; September 14, 1989 through February 6, 1990; June 13 through July 30, 1991; August 6 through December 3, 1991; 5. Permanent disability, if any, should be compensated industrially commencing February 28, 1989; 6. Claimant was at all relevant times married and entitled to four exemptions; 7. Medical benefits are not in dispute; 8. Defendants voluntarily paid certain benefits prior to hearing and are entitled to credit. Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of employment on May 13, 1991; 2. Whether the 1991 claimed injury caused temporary disability; 3. Whether any or all injuries caused permanent disability; 4. The extent of permanent industrial disability, if any, 5. The rate of compensation applicable in each contested case. Although this consolidated case involves allegations of three separate injuries, claimant takes the position that all temporary and permanent disability is attributable to the 1988 claim and that the 1989 and 1991 claims are in the nature of temporary exacerbations causally connected to the original injury. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Page 3 Allen Sanders, 40 years of age at hearing, is a high school graduate without further education except for military and on-the-job training. Mr. Sanders served in the United States Air Force from 1973 to 1975, and performed relatively simple procedures as a mechanic, including changing tires and checking oil, but not including repair of aircraft engines. Claimant started working in the Super Value Stores warehouse in October 1970 while still in high school. Except for his active duty stint in the air force, he has remained so employed to the present day. Super Valu Stores is a supermarket chain supplied from its own warehouse. Bid jobs in the warehouse facility include several kinds of order filler, forklift operators, loading dock workers, repack workers, sanitation, and trailer cleaners. Some jobs require substantially more lifting than others and involve varying amounts of both compulsory and voluntary overtime hours. Some jobs are scheduled for five eight-hour days, while others are scheduled for four ten-hour days. Bidding for jobs is on the basis of seniority. Even after his many years of service, claimant is only number 95 in seniority (as of November 9, 1993, 272 employees were on the seniority list). Claimant was originally injured on September 1, 1988, while substituting as a forklift operator (his bid job at that time was as a grocery order filler). While pulling an empty pallet by hand, in a bent position, claimant developed a "catch" in his lower back so severe as to drop him to the floor. He was referred to the Iowa Methodist Occupational Medicine Clinic, where he has since been seen by a succession of physicians. Initial complaints were of radiating pain down the right leg, but also some in the left leg. Mr. Sanders was eventually found to have a herniated lumbar disc at L5-S1, and underwent a right-sided hemilaminectomy and disc excision at the hands of Dr. David J. Boarini on October 25, 1988. Dr. Boarini eventually rated impairment as five percent of the body as whole. Claimant returned to work in January 1989, again as an order filler. Unfortunately, he has continued to suffer back pain to the present time. A second incident occurred on September 7, 1989, while claimant was substituting in meat and dairy receiving (his bid job being grocery order filler). He developed pain in the lower back while merely reaching down to put a sticker on a pallet. By the next day, pain was substantially increased. Claimant was again treated by Dr. Boarini and was off work until February 6, 1990. Dr. Boarini has opined that the September 1989 injury caused no permanent injury or increased permanent impairment. The claimed injury of May 13, 1991, did not involve a specific traumatic incident. Rather, while claimant was working on the loading dock, he found symptoms gradually Page 4 worsening. He was at this time treated by Michael J. Makowsky, M.D., of the same occupational medicine group. Dr. Makowsky, an occupational medicine specialist, testified by deposition on October 21, 1993. In June 1991, Dr. Makowsky found a limited range of motion at the waist and in forward flexion, with other range of motion in the back untestable because of claimant's pain. Straight leg raising was positive on the right and showed back pain on the left, but without radiation. A repeat magnetic resonance imaging scan was performed, which was again inconclusive (as had been the case in 1989; that is, not showing definite change subsequent to the 1988 injury). However, in addition to showing possible recurrent herniation on the right at L5-S1, the MRI demonstrated some degenerative disc disease at L3-4 and L4-5. Dr. Makowsky also believes there is scarring as a result of the 1988 laminectomy. Dr. Makowsky initially felt that claimant had a back strain or muscle strain in 1991, but eventually concluded that claimant's symptoms were probably related to the previous laminectomy and disc surgery. He found MRI indication of some post-operative scarring at L5-S1 consistent with positive straight leg raising and an EMG performed in 1991. Dr. Makowsky returned claimant to work without limitation except against overtime hours, but testified that restrictions would have been imposed except for claimant's motivation in wishing to return to work, and the likelihood that Super Valu would be unable to meet restrictions. The restriction against overtime hours, while still observed by defendants, appears to be no longer in effect. Dr. Makowsky suggested the following permanent restrictions: light or medium employment, maximum lifting of 35 pounds, maximum repetitive lifting of 20 pounds, no stair climbing of more than two flights at a time or at a rapid pace, and no repetitive bending. Dr. Makowsky also testified that claimant's current condition and restrictions are related to the 1988 injury, not the 1989 injury or the claimed 1991 injury. He assessed a ten percent impairment rating to the body as a whole related to both the laminectomy and its residuals. Claimant had a number of episodes of back pain between 1981 and 1986, at all times returning to work without medical restriction. Dr. Makowsky did not believe any of these episodes would effect his opinions as set forth in his deposition. In 1993, Super Valu Stores changed to a different medical group for authorized treatment. Accordingly, claimant has since been seen by Dr. James Blessman. Dr. Blessman's chart notes of November 2, 1993, indicated a recommended restriction against lifting in excess of 50 pounds; claimant to be rechecked in one year to consider permanent restrictions. Page 5 ANALYSIS AND CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The parties have stipulated to injury arising out of and in the course of employment in 1988 and 1989. The record tends to show that both the 1989 and 1991 periods of temporary disability are related to and residuals of the 1988 injury, rather than any "new" injury. The 1989 incident involved merely bending over. The work activity associated with that recurrence is arguably inconsistent with compensable injury. That is to say, work merely provided the stage where symptoms recurred, since bending over is a commonplace activity in the ordinary affairs of non-employment life. The 1991 "injury" was not related to any traumatic incident at work. Based on these facts and the opinions of Dr. Boarini and Dr. Makowsky, it is held that all periods of temporary disability and permanent disability are causally related to the 1988 injury alone. The parties have stipulated to the extent of temporary disability, all of which will be assessed to the 1988 injury: September 2 through September 25, 1988; October 3, 1988 to January 10, 1989; January 22, 1989 to January 24, 1989; September 14, 1989 to February 6, 1990; June 13, 1991 to July 30, 1991; August 6, 1991 to December 3, 1991. This totals 62 weeks, 6 days. The parties have stipulated to a marital status of married and entitlement to four exemptions along with a gross weekly wage of $379.33 in 1988. Accordingly, the proper rate of compensation is $248.64. Claimant has worked his entire career at various jobs at Super Valu. Although he has restrictions, Super Valu has very commendably been able to keep him working. Likewise, claimant's motivation has commendably kept him working even Page 6 in pain. However, it is clear that his medical restrictions and history of surgical treatment will limit his earning capacity vis-a-vis the competitive labor market. Considering then these factors, including claimant's age and educational background along with his work history, and the other evidence shown of record, it is held that Mr. Sanders has sustained a permanent industrial disability equivalent to 25 percent of the body as a whole, or 125 weeks. The parties' stipulated commencement date for permanent partial disability benefits, February 28, 1989, is accepted. Payment of permanency benefits is interrupted by the subsequent periods of temporary disability. ORDER THEREFORE, IT IS ORDERED: In case numbers 929385 and 1002289; claimant shall take nothing. In case number 888800: Defendants shall pay unto claimant healing period and temporary total disability benefits as set forth above, totalling fifteen thousand six hundred twenty-eight and 76/100 dollars ($15,628.76). Defendants shall pay one hundred twenty-five (125) weeks of permanent partial disability benefits commencing February 28, 1989. All accrued benefits shall be paid in a lump sum together with statutory interest. Defendants shall have credit for all benefits voluntarily paid to date. Costs of all actions are assessed to defendants. Signed and filed this ____ day of February, 1994. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Kevin Kirlin Attorney at Law 535 Insurance Exchange Building Des Moines Iowa 50309 Mr Richard G Book Attorney at Law 500 Liberty Building 418 6th Avenue Des Moines Iowa 50309-2421 5-1803 Filed February 1, 1994 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALLEN R. SANDERS, : : Claimant, : : File Nos. 1002289 vs. : 888800 : 929385 SUPER VALU STORES, INC., : A R B I T R A T I O N Employer, : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Industrial disability determined. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALLEN R. SANDERS, : : Claimant, : : File Nos. 1002289 vs. : 888800 : 929385 SUPER VALU STORES, INC., : : O R D E R Employer, : : N U N C and : : P R O LIBERTY MUTUAL INSURANCE : COMPANY, : T U N C : Insurance Carrier, : Defendants. : ___________________________________________________________ The arbitration filed February 1, 1994 calculated claimant's rate of compensation at $248.64, based upon the parties stipulation as to marital status (married), exemptions (4) and gross weekly earnings ($379.33). Claimant's attorney has since written to advise that the parties intended the stipulation of $379.33 as the compensation rate, rather than gross weekly earnings. Defense attorney has since written to state his agreement. The parties are not entitled to stipulate to a rate of compensation, since this is a legal conclusion. They are entitled to stipulate to gross weekly wages, marital status and number of exemptions. The form 2B filed by defendants on December 7, 1988 showed a gross weekly wage of $611.13 and a compensation rate of $379.33. Fairness requires that the arbitration decision be suitably modified. IT IS THEREFORE ORDERED that the arbitration decision filed February 1, 1994 is modified to reflect that the correct rate of compensation is $379.33, based upon average gross weekly wages of $611.13. Healing period, temporary total disability and permanent partial disability benefits shall be paid at the correct rate. SO ORDERED. Signed and filed this ____ day of February, 1994. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr Kevin Kirlin Attorney at Law 535 Insurance Exchange Building Des Moines Iowa 50309 Mr Richard G Book Attorney at Law 500 Liberty Building 418 6th Avenue Des Moines Iowa 50309-2421 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DAVID SAMPLE, : : Claimant, : : vs. : : File No. 888801 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, David Sample, against his employer, United Parcel Service, and its insurance carrier, Liberty Mutual Insurance Company, defendants. The case was heard on April 24, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant and the testimony of Todd J. Galloway. Additionally, the record consists of joint exhibits 1-23 and B 1-13. issue The sole issue to be determined is: 1) whether claimant is entitled to permanent partial disability benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 34 years old. He is married with two children. He is a high school graduate. He holds a certificate of completion for courses in adult machine shop. He also has an associate of arts degree in electronics. Claimant commenced his employment with defendant on April 10, 1979. Initially, he was a part-time employee. He switched to full time in 1986 or 1987 but after one month, claimant voluntarily returned to a part-time status. On July 28, 1988, claimant was loading trucks at defendant's establishment. He testified he picked up a one pound package and lifted the package over his head. He placed it on a shelf near the ceiling of the truck when he felt a sharp pain in his right shoulder. As a result, Page 2 claimant dropped his arm to his side. He reported the incident to his supervisor. One week later claimant was sent to Scott Neff, D.O., for medical attention. Claimant had an impingement surgery on October 21, 1988. He also had a carpal tunnel syndrome repaired. He was off work through January 19, 1989. Upon his return to work, he was placed in a light duty position where he was sorting smaller packages. Claimant performed some duties above his head. At the time of the injury, claimant was earning $13.85 per hour. On the date of the hearing, claimant was earning $14.15 per hour. Claimant reported he worked about the same number of hours at the time of the hearing as before his injury. Claimant described the condition of his shoulder as of the date of the hearing. He indicated his shoulder was not as strong as it once was, he felt pain in his shoulder and the back of his shoulder blade, he felt tightness in his neck and shoulder muscles, he experienced headaches and he avoided using his right arm and hand. Claimant also testified he took 800 mg of Motrin once or twice a day for his pain. Todd Galloway testified at the hearing. He is the center manager for West Delivery Center at UPS. He described claimant's current duties as an air recovery clerk. Claimant is currently required to scan packages and to push them aside. There is additional clerical work involved for claimant but not a great deal of lifting. Mr. Galloway determined claimant had been regularly working since February of 1989 and that his rate of pay had increased by $.30 per hour. Mr. Galloway was unaware of any work restrictions placed upon claimant. Claimant was described as an excellent employee. conclusions of law The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily, 233 Iowa 758, 10 N.W.2d 569 (1943). Page 3 An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co., (appeal decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is Page 4 undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. The sole issue to address is the type of permanent partial disability which claimant has sustained. Claimant contends "he has sustained a body as a whole injury and is entitled to have his injury evaluated industrially." Defendants maintain claimant has sustained a scheduled member injury to the right upper extremity. Claimant's treating physician, Scott B. Neff, D.O., rated claimant as having a three percent impairment to the right upper extremity. Dr. Neff, while rating claimant's impairment to the upper extremity, did write in his report of January 20, 1989: He is complaining also of some paraspinal pain in the cervical spine muscles but some of this I think is simply due to elevation using the upper trapezious area as opposed to straight abduction. Dr. Neff explained his rationale for rating claimant's shoulder injury to the right upper extremity rather than to the body as a whole. He wrote in his report of November 5, 1989: Impingement syndrome decompression does not involve surgery per se on the rotator cuff. It involves anatomic structures which lie lateral to the gleno-humeral [sic] articulation or the plane of the shoulder joint, and as such, are rated by the AMA Guidelines as to the upper extremity and not to the body as a whole. Claimant was also evaluated by John H. Kelley, M.D. Dr. Kelley opined claimant had a five percent permanent partial impairment of the right upper extremity which would equate to three percent impairment to the body as a whole. In his deposition, Dr. Kelley testified to the following relative to the type of impairment: Q. Is the situs of that surgery then confined to the upper extremity, or is it into the body? A. Well, it's all done on the body side of the shoulder in that it's not done on the arm bone or the humerus. It's really done on the structures in the shoulder on the body side of the joint. The procedure done on the acromioclavicular joint is really a procedure on the body and has nothing to do at all with the shoulder. Page 5 Q. Dr. Kelley, what does the impingement syndrome, this surgery, what does it do? Does it help a person abduct and flex better? Does it take away the grinding? In lay terms what does the surgery do? A. Yes, it relieves the impingement or pinching of the arm bone against bones in the shoulder when the arm is lifted from the side. Dr. Kelley continued with his deposition relative to claimant's impairment. At page 14, Dr. Kelley testified: A. There is no page in here that specifically relates to this surgery, and there's no specific reference here, that I can find, to disability following a resection of the acromioclavicular joint. The patient's disability that I'm estimating is really based on the fact that there were structures altered in the shoulder, and that inspite [sic] of the fact that the limitation of motion itself does not allow for any disability because he's only limited slightly in abduction and flexion, and not enough really, according to the tables, to provide much of a disability. However, I think that having all these structures altered surgically about the shoulder, he does have a disability of five percent. Q. When you say five percent, and I may have been confused earlier, you mentioned there was a three percent body as a whole rating? A. Yes. Q. And what is the five percent then? A. That would be of the shoulder, and then I'm converting that to the body as a whole. Q. When you say the shoulder five percent, you are talking the upper extremity and converting it into the body as a whole? A. Yes. Q. And as far as the abduction and flexion that you measured, how much are we talking about in each of those? A. We're talking about only -- well, I haven't seen him since surgery, so I guess really I can't speak to that. All I can do is say that I read Dr. Neff's reports, and he estimates that this is the disability, as did Dr. Kirkland, and I would Page 6 concur with that. Finally, Mark B. Kirkland, D.O., provided an impairment rating for claimant. Dr. Kirkland wrote in his report of September 1, 1989: On physical examination he did have a full range of motion of his right shoulder. He did have a well-healed scar. He had rather good equal strength against resistance at 90 degrees of abduction and 90 degrees of forward flexion. ... However, technicalities aside I do rate his impairment as five percent to the right upper extremity. This is based on the rating guide of the American Academy of Orthopaedic Surgeons. I feel the injury of July 27, 1988 was an aggravation of a pre-existent condition. I would have Mr. Sample avoid any type of heavy lifting or repetitive activities at shoulder level. It has long been recognized that "an injury to the shoulder is an injury to the body as a whole." Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). Nazarenus v. Oscar Mayer & Co., 2 Iowa Indus. Comm'r Rep. 170 (Appeal Dec. 1982). The facts in the instant case warrant such a holding. The surgical incision, as described by Dr. Kelley, is upon the body cavity. It is not confined to the right upper extremity. Claimant's physical complaints extend to the neck, head, spinal and thoracic areas. Even Dr. Neff acknowledges problems beyond the area of the right upper extremity. Therefore, it is the determination of the undersigned that claimant's permanent partial disability is to the body as a whole. The impairment rating equates to three percent of the body as a whole. Claimant maintains there has been a loss of earning capacity as a result of his work injury. Claimant was refused an electrician's technician position with Xerox because he needed surgery to his left shoulder. The position actually paid less than what claimant earned at defendant's establishment. Claimant has sustained a minor loss of earning capacity given the fact claimant is unable to work above shoulder level. Certain positions within defendant's corporate structure are now outside of claimant's physical capabilities. Claimant has received all pay raises due to him. His injury has not resulted in an actual loss in hourly pay rate. Claimant's age is working in his favor, as well as his education and training. Defendant is to be commended for placing claimant in a position where he is not required to do much overhead lifting. Claimant's current position involves lighter duties. He has been able to perform his tasks without complaints to his supervisor. Therefore, claimant is entitled to 25 weeks of permanent partial disability benefits. Claimant is also Page 7 entitled to 23.143 weeks of healing period benefits for the period from August 11, 1988 to January 19, 1989. order THEREFORE, IT IS ORDERED: Defendants are to pay twenty-five (25) weeks of permanent partial disability benefits to claimant at the stipulated rate of one hundred seventy-eight and 15/l00 dollars ($178.15) per week commencing on March 15, 1989. Defendants are to also pay twenty-three point one-four-three (23.143) weeks of healing period benefits to claimant at the stipulated rate of one hundred seventy-eight and 15/l00 dollars ($178.15) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Defendants shall take credit for all benefits previously paid to claimant. Costs of this action are assessed to defendants. Page 8 Defendants shall file a claim activity report as requested by this division pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of July, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Ave Des Moines IA 50309-3320 Mr. James C. Huber Attorney at Law 500 Liberty Bldg Des Moines IA 50309-2421 5-1803 Filed July 25, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : DAVID SAMPLE, : : Claimant, : : vs. : : File No. 888801 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant sustained a five percent permanent partial disability to the body as a whole as the result of a work injury to his shoulder. Claimant had sustained a minimal loss of earning capacity but had returned to his employment at the same rate of pay.