BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PATRICIA RAMIREZ, : : Claimant, : File No. 890433 : vs. : D E C I S I O N : JOHN MORRELL & COMPANY, : O N : Employer, : M E D I C A L : and : B E N E F I T S : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ On April 24, 1991,(1) Patricia Ramirez (claimant) filed a petition for medical benefits as a result of an injury to claimant's back occurring on May 23, 1988. John Morrell & Company (John Morrell) was identified as employer and National Union Fire was identified as the workers' compensation insurer for John Morrell (collectively defendants). On August 26, 1991 these matters came on for hearing in Sioux City, Iowa. The parties appeared as follows: the claimant in person and by her counsel Harry Smith of Sioux City, Iowa and John Morrell and National Union Fire by their counsel Judith Ann Higgs of Sioux City, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Dennis Reitz and Donna Johnson. 2. Joint exhibits 1-83 STIPULATIONS The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on May 23, 1987, which arose out of and in the course of employment. ISSUE The only issue for resolution is whether claimant is entitled to attend a pain management clinic at either the University of Nebraska or Mercy Pain Center in Des Moines at the defendants' expense. (1). There is a second petition in the file dated May 1, 1991 requesting the same relief. This petition was unsigned by claimant's counsel. The April 24, 1991 filing date will be the date used for this proceeding. Page 2 FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 47 years old. She was employed by John Morrell at the jowl table. Her job duties included inspecting meat for hair or skin. Once inspected, she threw the meat onto a a combo. 2. Over the course of her working history, first with Iowa Meats and then with John Morrell, claimant has had several injuries. The first injury occurred in November of 1982 where claimant had a diagnosis of paronchia in the left third digit. Claimant was very anxious about experiencing pain and this concern has been expressed many times in connection with her various injuries including the injury to her back on May 23, 1988. Beginning in 1982 and for the next two years claimant reported various injuries to her right arm, hand and thumb. She was diagnosed as having tendonitis and myositis. Claimant received treatment for these conditions from a variety of doctors including Dr. Grossman, Dr. Jennings, Dr. Budensiek, Dr. Nitz and Dr. Paulsrud. Claimant's other work related injuries included a lumbosacral strain in her back and exposure to ammonia. 3. As a result of all these injuries, claimant recieved a 20 percent rating to the body as a whole on June 15, 1987 by Horst G. Blume M.D.. Dr. Blume found that claimant was suffering from myofascial pain syndrome and myofascitis of the extensor muscle group in the right lower arm and shoulder. John J. Dougherty, M.D. also examined claimant and found degenerative changes in her neck and degenerative athritis in her neck and spine. Dr. Dougherty found a five percent functional impairment for claimant's right arm only. He did not rate claimant's back. 4. On May 23, 1988, claimant suffered another injury when she walked into the cooler to bring out meat in barrels. The cooler was icy and her feet went out from under her. She fell on her buttocks and experienced some pain at that time. Afterwards, the pain got worse and she sought medical assistance. 5. On June 4, 1988, claimant received restrictions as a result of the injury on May 23, 1988. Claimant could lift to ten pounds and she could walk or stand for 6-8 hours. Claimant could also bend, kneel and reach above shoulder level on an occasional basis. Claimant was to remain on light duty work for at least four weeks. 6. On June 7, 1988, claimant was still complaining of headaches and stiff neck. The diagnosis at this date was acute traumatic sprain of the cervical dorsal and lumbar area with subluxation. Claimant was referred to a chiropractor for manipulation. Claimant's pain did not abate and she was referred to Dr. Miller for consultation. Page 3 7. Dr. Miller examined claimant on July 1, 1988. Dr. Miller had x-ray studies and an MRI study performed of claimant's spine. The x-rays studies were normal. The MRI study of the cervical spine was normal. The MRI study of the lumbar spine showed that there was a degenerative disc at L4-5 and L5-S1 and a mild bulging at L4-5 and L5-S1. However, there was no definite evidence of a herniated disc. 8. On July 8, 1988, claimant was discharged from medical care and was returned to work with restrictions. Claimant could lift up to 25 pounds and she could stand for 8-10 hours. Claimant was permitted to grasp with her left and right hands and she was could bend, carry and kneel frequently. Claimant could reach above shoulder level frequently and she could use a Whizard knife and a straight knife in both hands. 9. Claimant was next seen by Dr. Carlson on July 25, 1988. He ordered an MRI scan of claimant's cervical and lumbar spine. The study showed that claimant had marked disc degeneration at L4-5 and L5-S1. The degernative condition was especially marked at the L5-S1 level. There was severe L5-S1 disc space narrowing. There was also a moderately prominent central disc protrusion at the S1 level and to a lesser extent at the L4-5 level. However, no definite disc herniation was identified and no other abnormality was noted. Claimant's cervical spine was normal. Claimant was diagnosed as having degenerative disc disease at the two lowest lumbar vertebrae. 10. Thereafter, claimant embarked on a course of care for her back that included visits to several doctors including Drs. Samuleson, Walck, Goldner, Spencer, Krigsten, Miller and Volk. She also had a variety of physical and manipulative therapy. None of the conservative treatment modalities recommended by these physicians relieved claimant of her pain. An aggressisve treatment program was recommended by Drs. Goldner and Walck that included weight loss, muscle conditioning, range of motion exercises and medication to relieve pain and depression. Counseling was also suggested. Claimant was not diligent in participating in these treatment modalities because of her pain. However she was anxious to return to work. After she had been in treatment for a while, she was released to return to light duty on May 3, 1989. 11. When claimant was seen by Dr. Durward later in May of 1989, he ordered a new round of tests to pinpoint the source of claimant's pain. A second MRI study of claimant's cervical and lumbar spine revealed that claimant had degenerative disc disease at L3-4, L4-5 and L5-S1 with mild to moderate posterior bulging at all levels slightly greater off to the right than to the left at L3-4 and L5-S1. Otherwise the study had not significantly changed from the previous studies. An EMG study was also performed and it was normal. However, after claimant's myelogram on July 28, 1989, Dr. Durward indicated that claimant had a migrated free fragment which had apparently herniated from the L5-S1 space. This fragment was causing compression upon the L5 nerve root. The fragment was central to the location. The Page 4 myelogram also showed an intervertebral disc space narrowing with a vacuum disc phenomenon at L5-S1 with no evidence of a ventrolateral extradural defect. Dr. Durward was absolutely certain that this was causing claimant's pain and even though it had taken a long time to find it, he believed she would get substantial relief from a diskectomy and surgery was scheduled. 12. On August 21, 1989, claimant had a right L5 hemilaminectomy and L5-S1 diskectomy. During the course of the surgery, Dr. Durward found a true herniated sequestrated disk rupture. The disk had been there for quite a while because it was stuck to the ventral thecal sac and was somewhat hard. Dr. Durward noted that eight fragments of disk material had extruded from the disk space of the L5 bodies. He noted that there was a small amount of residual disk material within the disk space. 13. After the surgery, claimant's pain complaints did not abate. Claimant had another series of studies made of her lumbar spine. A CT scan performed November 7, 1989 showed evidence of a partial inferior right L-5 hemilaminectomy and a post-operative posterior soft tissue thickening. Dr. Beeler, the radiologist thought the CT scan showed a re-current disc herniation with an extruded fragment to the right L5 pedicle and post-operative fibrosis. The bulging at the L3-4 and L4-5 levels remained unchanged. A myelogram of the lumbar spine performed on November 7, 1989, confirmed the findings regarding the bulging discs and scar formation identified by the CT scan. However, the myelogram did not show evidence of a recurrent or residual disc herniation. An MRI study performed on November 17, 1989 confirmed the results of the myelogram study. Claimant had a nerve study and an EMG performed on November 17, 1989 as well. The nerve study was normal. The EMG showed mild increases in L-5 spinal irritability and a mild chronic denervation pattern. The L-5 mytomal denervation was compatible with the residual from the prior radiculopathy. This evidence suggested that claimant might have ongoing right L-5 nerve entrapment, which could be the source of her pain. However, the nerve conduction studies did not suggest a superimposed peripheral entrapment neruopathy or polyneuropathy. 14. On January 8, 1990, claimant was evaluated at the Institute for Low Back Care in Minneapolis. Claimant complained of pain in her back that was most severe when she was in bed in the morning and at the end of the day. Claimant's pain was made worse with lying on her stomach or back, rising from sitting, driving, standing, leaning forward, bending forward, light exercise, heavy exercise and coughing. The pain decreased when claimant was laying on her side. 15. After a complete examination, claimant's diagnosis was was facet syndrome at L5-S1, lumbar degenerative disc disease at L4-5, L5-S1, and mechanical low back pain syndrome with leg pain, myofascial pain syndrome, post laminectomy syndrome at L5-S1 on the right, sciatic Page 5 radiculitis and overweight. Claimant was then referred to physical therapy for treatment. 16. On February 17, 1990, Dr. Durward wrote to Mary Mitchell, regarding claimant's case. He indicated that based on the last myelogram he felt that there was a very high chance that claimant would get over her back problems with further conservative measures. If those measures failed, then he believed that claimant would need to have a fusion as the only option to relieve her back pain. 17. On March 20, 1990, claimant began a new physical therapy treatment program to decrease pain in her back. The treatment lasted from March through December of 1990. 18. In May, claimant, was given a TENS unit which seemed to improve her pain. During the course of claimant's physical therapy treatment, she was treated for ongoing pain complaints. In May, claimant was given a TENS unit and that seemed to improve her pain. By the end of May, claimant had progressed to a level that would allow her a limited return to work. Claimant began working short days after June 1, 1990. 19. In August 1990, claimant was released to return to work for eight hours per day. Claimant reported to Dr. Durward that her back was really not bothering her at all but she was still having radicular pain that was present all the time. Additionally, claimant was still suffering from depression. Consequently, Dr. Durward prescribed Prozac for claimant to combat her depression due to the residual pain. 20. During September of 1990, claimant indicated to therapist, Henrietta Scholten, that she wanted to continue therapy until she felt good enough to work overtime. By this time, claimant's pain complaints had settled in her right buttock and right leg. In addition to the therapy, Dr. Durward decided to try a nerve block to relieve claimant's pain complaints in her leg. 21. On November 3, 1990, Dr. Durward wrote a report indicating that claimant was still having pain down the right leg. He noted that claimant had good transient results from the nerve root block and therapy but the pain on the right side was not resolving. Dr. Durward decided to repeat the S1 root block. If there was not substantial relief after the nerve block, then he wanted to proceed with the repeat myleogram because he felt that something was irritating the S1 nerve root. 22. Claimant continued her physical therapy treatment with Henrietta Scholten from January of 1991 through April 1991. 23. The second nerve root block was of little benefit to claimant. On January 26, 1991, Dr. Durward reviewed the results of claimant's most current myelogram. He noted that the study showed excellent decompression at L5-S1 and a mild bulging at L4-5 and L3-4 discs, slightly more to the left but nothing going down the right. Dr. Durward concluded Page 6 that despite a lot of conservative treatment, claimant has had an unsatisfactory residual amount of pain. He felt that it was time to consider use of Elavil at night to see whether that would control the pain and her depressive feelings. The other recommendation he made was for claimant to participate in the pain clinic at the University of Nebraska. Dr. Durward was going to make that referral this week through his office. It had become very clear to him that claimant was depressed about the amount of pain she was having and whether she was going to be able to keep her job or go on welfare. Dr. Durward concluded that the pain clinic had a very significant chance of helping her live with the residual pain that she had. 24. On March 12, 1991, Dr. Durward gave claimant a permanent restriction to eight hours of work per day. 25. On March 25, 1991, claimant received a correspondence from University of Nebraska Medical Center Pain Program. This letter indicated that she had been referred by Dr. Durward's office to the pain clinic. 26. On May 3, 1991, Maggie Covey, a vocational consultant for GAB Business Services, reviewed claimant's pain management resources after an interview with claimant. She noted in her letter, that Dr. Durward had recommended a pain management program for claimant at either the Mercy Pain Center in Des Moines or the University of Nebraska Pain Center. Claimant appeared hesitant to commit to a pain management program at the time of this interview which was in April 1991. Ms. Covey indicated that at the conclusion of her interview with claimant that she would arrange an evaluation consultation with Dr. Blessman at the Mercy Pain Clinic in Des Moines for claimant, that she would explore pain management resources in Sioux City and maintain contact with claimant promoting nutritional wellness, sleep pattern awareness, adaptation in the work place, and stress/pain management counseling. 27. On May 13, 1991, Dr. James Blessman directed a letter to Ms. Covey regarding the pain management program at Mercy and his evaluation of claimant's pain condition. Dr. Blessman reviewed the appropriate studies that had been done prior to her surgery and following her surgery. Dr. Blessman noted that claimant was not on any pain medications because she had been refusing to take this medication. Dr. Blessman felt that she was an excellent candidate for rehabilitation. He did advise that he would encourage her to take some medication for her depression and some medication for her pain. Dr. Blessman also included an accreditation of the Mercy Pain Center by the Commission on Accreditation of Rehabilitation Facilities. The Mercy Pain Center has been in existence for over eight years and during that time, more than 1,400 patients have been treated for chronic pain problems. The pain center has had a 90 percent success rate with patients suffering from heaches and stress-related abdominal pain and a 70 percent success rate has been achieved for patients suffering from back problems. 28. On June 26, 1991, a progress report was made by Page 7 Maggie Covey. In this report, she reported that she had met with Dr. Blessman at the Mercy Pain Clinic in Des Moines. On June 26, 1991, the question of whether claimant would be allowed to go to the Mercy Pain Clinic was put on hold awaiting the direction of the carrier. Thereafter, the carrier decided not to pay for a pain clinic. 29. Claimant believes that she needs the pain clinic to learn to live with her pain. The program would last six weeks. Claimant testified that every day she has a dull sharp pain and pins and needles type pains in her back, buttocks and down her right leg. Claimant has refused pain medication because she is fearful that she would become drug dependant on the pain medication. She takes a rather stiff dose of Tylenol on a daily basis which allows her to work her eight hour shift. Claimant is restricted to an eight hour shift, however she does sometimes work longer hours. Claimant indicated that her social life has been severly restricted because of her pain, she generally at the end of day, prepares dinner, watches the news, waters her garden, takes care of her flowers and then goes to bed. 30. Claimant's supervisor has noted that claimant is doing her job adequately and has had no complaints of pain while at work. 31. The nurse at John Morrell has also had an opportunity to observe claimant and she has indicated that she has not made any complaints of pain to her. Ms. Johnson was aware, however, that Dr. Durward had recommended the pain clinic. Ms. Johnson was of the view that the pain clinic in Des Moines would not be helpful. John Morrell's experience has been that most of their employees who have been through the pain clinic have not been helped by it. CONCLUSIONS OF LAW Claimant argues that she should be allowed to attend a pain management clinic at either the University of Nebraska or in Des Moines at the Mercy Pain Clinic. Defendants argue that the pain management clinic is not a reasonable medical expense that is necessary to treat claimant's condition. Moreover, defendants urge that they have provided all the care necessary to treat claimant's condition and that a 70 percent success rate for the pain clinic is insufficient to justify the expense of sending claimant to the pain clinic in Des Moines. This dispute is governed by Section 85.27 which provides that the employer, for all injuries compensable under the chapter 85 or 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies and allow reasonably necessary transportation expenses incurred for such services. The employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. While the term reasonable services and supplies has not Page 8 been defined in the statute, a recent U.S. Supreme Court case provides a good definition of reasonableness. The reasonableness of the care is assessed by reviewing circumstances of giving the care, not by reviewing the actual results of care. Cruzan v. Director, Mo. Dep't of Health, 110 S. Ct. 2841 (1990). This standard was discussed in Hanson v. Reichelt, File No. 742863, Slip op. (Iowa Ind. Comm'r Remand Decision, March 13, 1991). In this case, there is no question that the pain management clinic is a reasonable service that the employer should provide. Claimant has documented pain complaints that have existed from the date of her injury. The treatment of the pain has been intermittently successful and unsuccessful. To judge the reasonableness of the care by the success rate that Mercy has experienced denies the essential question of whether claimant's treating physician has determined that this treatment is worthwhile. Since the treating physician has concluded that the treatment is worthwhile, John Morell's experience with pain clinics and Mercy's success rate is irrelevant since the treating physician has decided that the pain clinic is worth trying. More importantly, the defendant's argument regarding the quantity of care they have given and its reasonableness also fails when the treating physician has authorized a treatment modality. Even though the employer is entitled to choose the care, the employer cannot interfere with the physician's professional judgment on what treatment modalities the physician determines to be appropriate. Wright v. Super 8 Lodge of Des Moines File No. 858615, Slip Op. (Iowa Ind. Comm'r Arb. February 20, 1990). The Commissioner has examined this question where a pain clinic was in issue. The Commissioner held that if a pain clinic was recommended by an authorized physician, the employer could not interfere with that recommendation. The employer was directed to pay for the clinic. Pitzer v. Rowley Interstate, File No. 766890, Slip op. (Iowa Ind. Comm'r App. September 24, 1991). In Pitzer, claimant's authorized doctor referred him to a pain clinic and defendants would not authorize the treatment. The Commissioner held that since an authorized doctor's referral makes the referred doctor authorized, Carnes v. Sheaffer Eaton, No. 836644, Slip op. at 6 (Iowa Ind. Comm'r Arb. February 7, 1991); Munden v. Iowa Steel & Wire, 33 Iowa Industrial Commissioner Biennial Report 99, 100 (Arb. 1979); and since the employer cannot direct the course of treatment Wright v. Super 8 Lodge of Des Moines, File No. 858615, Slip op. (Iowa Ind. Comm'r Arb. February 20, 1990), the pain clinic was authorized and defendants were directed to bear the cost of the pain clinic. Likewise in this case, the defendants cannot interfere with the treatment modalities recommended by an authorized treating physician. Dr. Samuelson made the referral to Dr. Durward for claimant's ongoing back complaints. Clearly, the defendants allowed claimant to continue with Dr. Durward for an extended period of time without objection. Dr. Durward is an authorized treating physician. When a pain Page 9 clinic was proposed to deal with claimant's intractable pain, the defendants decided that they had paid enough. This denial of fundamental benefits under the worker's compensation provisions is not what the statute or the case law contemplates. The pain clinic at the University of Nebraska was recommended by Dr. Durward and a referral was made to that program. This is the pain clinic the claimant may attend. If Dr. Durward believes that the pain clinic in Des Moines would be a better alternative for claimant and he makes a referral to this clinic, then claimant may go there. Dr. Durward is the authorized physician and controls the referral. ORDER THEREFORE, it is ordered: 1. That claimant shall be entitled to attend a pain clinic recommended by Dr. Durward. Dr. Durward has made a referral to the pain clinic at the University of Nebraska. Dr. Durward is free to refer claimant to an alternative pain clinic to treat claimant's intractable pain. 2. The costs of this action shall be assessed defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of August, 1992. ______________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harry H Smith Attorney at Law 632-640 Badgerow Building PO Box 1194 Sioux City Iowa 51102 Ms Judith Ann Higgs Attorney at Law 701 Pierce Street Ste 200 PO Box 3086 Sioux City Iowa 51102 5-2505 Filed August 17, 1992 ELIZABETH A. NELSON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PATRICIA RAMIREZ, : : Claimant, : File No. 890433 : vs. : D E C I S I O N : JOHN MORRELL & COMPANY, : O N : Employer, : M E D I C A L : and : B E N E F I T S : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2505 Employer could not interfere in treatment recommended by treating physician even though the employer had not had much success with the treatment modality, a pain clinic. The authorized treating physician controls the care and if a pain clinic is indicated and the employer has accepted liability for the claim, then the pain clinic must be paid for by the employer. Pitzer v. Rowley Interstate, File No. 766890, Slip op. (Iowa Ind. Comm'r App. September 24, 1991) Page 1 before the iowa industrial commissioner ____________________________________________________________ : MICHAEL WILKINS, : : Claimant, : File Nos. 895553; 890606; : 940622; 910549; vs. : 910550; 910551 : IBP, INC., : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N : and : : SECOND INJURY FUND, : : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration upon the petition of claimant, Michael Wilkins, against his employer, IBP, Inc., and the Second Injury Fund, defendants. The case was heard on June 18, 1991, in Burlington, Iowa at the Des Moines County Courthouse. The record consists of the testimony of claimant; the testimony of Bobbie Jean Wilkins; the testimonies of Rolene Collier; former plant nurse; John Flores, Jr., assistant personnel manager; and, Sherry Wilson, workers' compensation coordinator. The record also consists of joint exhibits A to BB and claimant's exhibits 29, 30 and 36. The attorneys are advised to better prepare their exhibits for hearing. There were many duplications which slowed down the process of writing the decision. Some exhibits appeared three times. Additionally, there were even records submitted for a patient named Kenneth Harding. The attorneys shall govern themselves accordingly in the future! During the hearing, claimant withdrew file number 910550. issues The issues to be determined are: 1) whether claimant received injuries which arose out of and in the course of his employment; 2) whether there are causal relationships between the alleged injuries and the disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and, 4) whether claimant is entitled to benefits from the second Page 2 injury fund. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 34 years old. At the time of the hearing, claimant was married but separated from his spouse. Prior to moving to Indiana, claimant lived in the Wapello County Care Facility and at the Mental Health Institute in Mount Pleasant, Iowa. Claimant completed the ninth grade and started the tenth grade where he was receiving a specialized education. He dropped out of school and joined the United States Marine Corps at 18. While in the Marines, he was sent to combat engineer's school where he learned demolition. Claimant was honorably discharged from the service after 11 months and 22 days. He had been beaten and kicked by three marines who jumped him and left him unconscious. Claimant also boxed on a regular basis while in the Marines. He had 12 bouts. After his discharge, claimant held a number of positions in construction; as a shuttle driver; and, as an owner of his own lawn care business. Claimant was also in the Marine Reserves. He also obtained his GED. Claimant commenced his employment with defendant in December of 1986. He terminated his employment on April 29, 1989. When claimant started work with defendant employer, he was placed on the picnic line where he made four cut marks on every picnic ham which traveled down a line. Claimant used a knife with his right hand to make the cuts. He grabbed the picnic hams with his left hand and held them using his left thumb. Claimant also worked on the picnic line where he made two cut marks on each picnic. Again claimant grabbed a picnic with the left hand and used the knife with his right hand. Because of various problems with his hands, claimant was assigned the job of pulling trolleys with his left hand. He was also assigned lighter duty jobs such as a janitor's position and watching the trash dumpster. Claimant alleges he sustained injuries to his right upper extremity, his left upper extremity and that he incurred a separate injury to his head. Claimant had two surgeries on his right hand for a carpal tunnel release. Calvin Atwell, M.D., performed the surgeries. Initially on March 9, 1988, Dr. Atwell performed a decompression of the right median nerve. On June 20, 1988, Dr. Atwell performed the second surgery for a decompression of carpal tunnel ligament which freed up of adhesions around the median nerve. As of July 1, 1988, Dr. Page 3 Atwell released claimant to return to work so long as he did not use his right hand. In his report of July 27, 1988, Dr. Atwell opined: I saw Michael Wilkins in the office on July 21st for a return visit after having had his right median nerve decompressed from his carpal ligament on June 20, 1988. He is going quite well. He appeared to have a normal neurological examination. He does still have some weakness in his fingers and his hand because of immobility. He was instructed to continue his therapy while at home with strengthening exercises on his finger and hand. I would anticipate that within two weeks he ought to be taken off of light duty. I would recommend that Mr. Wilkins not return to the use of straight knives or the wizard knife since we want to prevent a recurrence of the carpal tunnel syndrome. (Exhibit T6) Claimant experienced difficulties with his left thumb or hand in October of 1988. Rouben Mirbegian, M.D., performed a left thumb ligament reconstruction. Claimant had a condition known as gamekeeper's thumb which was consistent with a work related injury. Dr. Mirbegian evaluated claimant for any permanent impairment. In his report of November 13, 1989, Dr. Mirbegian opined claimant had the following impairment: As you know, Mr. Michael Wilkins did come in for a disability evaluation on 10-30-89. This patient did have previous right carpal tunnel release and also he had reconstruction of his left thumb at the PIP joint due to disruption of those ligaments while employed at IBP. Patient's muscle strength was examined using a Jamar Dynamometer. His range of motion was also measured. [sic] especially the left thumb which he had reconstruction surgery done. His right hand revealed that he has weakness of grasp. This hand has 5% permanent impairment of his upper extremities due to loss of grip comparing to the left side. His left hand thumb reveals that he has 14% permanent impairment of his upper extremity due to reconstruction of the left thumb ligament. So all together this patient has 19% permanent impairment of his upper extremity which appears to be permanently impaired. If you have any further questions, please don't hesitate to write to me. (Ex. L10) Claimant returned to work on or about December 1, 1988, Page 4 where he was assigned a position as a trash monitor. It was his task to fit garbage into a compactor located north of the building. Ice on the floor would form near the trash compactor. Claimant testified that on the morning of December 9, 1988, he slipped on the ice, fell and struck his head on a wooden pallet. Claimant testified a man wearing an orange hat, by the name of Tim, observed the fall and helped claimant up. Claimant testified he reported the fall to his supervisor, John Pytel and that claimant was advised to see the nurse, Rolene Collier. Claimant testified he visited with the nurse for less than five minutes and she flashed a light into claimant's eyes, quizzed him, gave him an aspirin and sent him back to work. After his visit to the nurse's station, claimant testified he notified John Flores, a co-employee, of the slip and fall. Claimant's wife, Bobbie Jean Wilkins, testified that on December 9, 1988, claimant came home from work, reported he felt dizzy and stated he had fallen that day. Ms. Wilkins testified she noticed a huge change in claimant's behavior subsequent to the fall. Rolene Collier, R.N., testified at hearing that she was the plant nurse on December 9, 1988, but that she had no recollection of claimant reporting a slip and fall on that date. Moreover, Ms. Collier testified she made no entry on the plant medical records relative to a fall on December 9, 1988. Ms. Collier's records did not contain any reference to any fall on the part of claimant. None of the notes indicated claimant had been given an aspirin. John Flores testified at the hearing. He worked with claimant in 1988 when claimant was a trash monitor. Mr. Flores testified he did not recall any conversation with claimant relative to a fall at or near the time of the alleged fall. Mr. Flores stated claimant first advised him of an alleged fall on June 1, 1990. Prior to that date, Mr. Flores had no knowledge of an alleged head injury. Lonnie John Pytel testified by deposition. Mr. Pytel testified he never had a conversation with claimant relative to an alleged fall. Timothy Alan Gerst testified by deposition. He testified, to the best of his knowledge, he had never observed claimant slip on ice. He testified he never assisted claimant in getting up from a fall. Mr. Gerst also testified he never spoke with claimant about any alleged fall. No witnesses to the fall were ever found. Claimant worked at IBP through April 30, 1989. On his last day of work, claimant worked 5.5 hours as a janitor. Claimant felt strain on his hands and arms. He testified he could not tolerate the weight of the barrels with his hands. Claimant had been released to return to work without restrictions. However, he felt he was unable to do repetitive work, and he felt his grip strength was worse. Claimant applied for short term disability benefits following his last day of work. He also applied for social security disability benefits. At the time of the hearing, Page 5 claimant had not been awarded social security disability benefits. Claimant was hospitalized subsequent to the last day he worked at defendant-employer's establishment. Claimant was notified by letter from defendant that he had overextended his one year medical leave of absence and would need to return to work. Claimant declined to return to work because he felt he had a memory loss attributable to his alleged fall. Claimant was later terminated. conclusions of law The first issue to address is whether claimant sustained an injury on December 9, 1988, which arose out of and in the course of his employment. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 9, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the instant case, claimant has not proven by a preponderance of the evidence that he has sustained an injury which arose out of and in the course of his employment. Claimant alleges he fell and struck his head on a wooden pallet. His credibility is at issue. His ability to recall specific events is questioned. Claimant, despite his severe memory loss, vividly recalls telling co-workers about his fall. The co-workers have no memory of such conversations. A co-worker, who supposedly assisted Page 6 claimant up from the fall, has no recall of the incident. The nurse who supposedly attended to claimant after the fall has no recollection of treating claimant. Nor do the nurse's notes reflect treatment of any kind for claimant on that day. If the nurse would have treated claimant and sent him back to work, there would be no need to eliminate the treatment from the records since claimant was not injured. Claimant was unable to produce any co-workers who could corroborate his allegations. Nor did a supervisor, responsible for safety concerns, recall receiving a verbal report from claimant relative to an on site accident on December 9, 1988. There is no question in this deputy's mind that claimant has some physical and/or emotional problems which affect claimant's memory. However, claimant had past experiences which could account for claimant's memory problems. Claimant claims he was struck in the head by three fellow marines. Claimant engaged in 12 previous boxing matches where he was struck repeatedly. Claimant had previous episodes of alcohol binges. Claimant had previous psychiatric problems, including a suicide attempt. All of the aforementioned could be causally related to claimant's present memory/emotional problems. No witness corroborates claimant's account of a fall on December 9, 1988. Therefore, it is the opinion of this deputy that claimant did not sustain an injury to his head which arose out of and in the course of his employment. The next issue to address is whether claimant sustained an occupational disease to either his right wrist, because of his carpal tunnel syndrome, or to his left thumb/hand because of his gamekeeper's thumb. In the case of Peters v. Lamoni Auto Assemblies, Inc., File No. 809203 (Appeal Decision filed March 31, 1989), the industrial commissioner rejected claimant's argument that her left carpal tunnel syndrome was an occupational disease under Chapter 85A since claimant was entitled to benefits under Chapter 85. In that case, claimant did not sustain her burden of proof that she had incurred an occupational disease. Likoewise, in the case at hand, claimant has not proven that carpal tunnel syndrome and gamekeeper's thumb are diseases under Chapter 85A. All Dr. Mirbegian opines is that the conditions are the result of overuse. The medical testimony does not describe carpal tunnel syndrome and gamekeeper's thumb as syndrome diseases which arise out of and in the course of the employee's employment and which have direct causal connections with the employment and which have followed as natural incidents thereto from injurious exposures occasioned by the nature of employment. See section 85A.8 of the Iowa Code. In light of the Peters case, this deputy determines claimant's right carpal tunnel syndrome and claimant's left gamekeeper's thumb are not occupational diseases under Chapter 85A. The third issue before this deputy is whether claimant has sustained a permanent partial disability as a result of his right carpal tunnel syndrome. Page 7 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). Claimant sustained cumulative trauma on March 10, 1988. He had two separate surgeries performed for right carpal tunnel syndrome. Dr. Mirbegian opined claimant had a five percent permanent partial impairment rating to the right upper extremity. He wrote that the impairment did not extend beyond the right hand. His opinion is uncontroverted. Only the hand was affected. See: Elam v. Midland Mfg., II Iowa Indus. Comm'r Rep. 141 (Appeal Decn. 1981) Using the Guides to the Evaluation of Permanent Impairment, Third Edition, Table 2, p. 19, five percent of the upper extremity equates to five percent of the hand. Section 85.34(1) governs the payment of benefits for a permanent partial disability to the hand. That section provides: For the loss of a hand, weekly compensation during one hundred ninety weeks. Under section 85.34(l), claimant is entitled to 9.5 weeks of benefits at the stipulated rate of $178.56 commencing on July 1, 1988. Another issue before this deputy is whether claimant is entitled to permanent partial disability benefits for a left gamekeeper's thumb. Mr. Mirbegian described a gamekeeper's thumb as follows: Q You've characterized that procedure as a left thumb ligament reconstruction; and as I understand the records, Doctor, we're talking about the ulnar collateral ligament. Is that correct? A Yes. Q And also talking about volar capsule. V O L A R capsule. Right? Is that correct, Doctor? A Yes. Q What is the function of the ulnar collateral ligament of the thumb? A It keeps the thumb in place. The joint that is Page 8 -- This the ligaments that are attached to keep the joint in place so if the thumb is stretched that joint is stretching and stays in place. Q What is the importance of the function of the thumb to the function of the hand? A Well, if you have weak -- weak thumb, you have weak grasp or weak pinch. Q Was that the difficulty that Mr. Wilkins experienced in -- because of the stretching of the ulnar collateral ligament? A Yes, he was -- His ligament was stretched, and he was having hard time -- hard time to use his full strength. Q Gripping things? A Gripping things and pinching. Q Okay. And what is the function of the volar capsule, Sir? Particularly at the P I P joint level? A Yes, it's almost same as the collateral ligament, once the one is stretched, the other one actually -- they're almost attached together and you dissect you almost have hard time telling which one is which. Q There is reference in your records, Doctor, to what is termed gamekeeper's thumb? A Yes. Q Is that a common name for the combination of stretching of the ulnar collateral ligament and the volar capsule? A Yes. Q Now how did it get that name, in case there's anyone who's curious? A I didn't invent that name. Q I'm sure not. A That's -- I guess it goes back to sometimes in England they used to go for rabbit hunting or some kind of bird hunting, they used to pull the rabbit's head out. And people who used to do those things, they usually started getting problem with their thumb because they have to hold the rabbit's head in one hand and rabbit's body in the other hand, and they snapped the rabbit's neck. That snapping stretched the thumb of that person who was doing it, and that's what the name came Page 9 from. Q And the -- Is the impairment or difficulty that you spoke of -- a weakened grip -- common in all gamekeeper's thumb cases? A Yes, they have a weak -- weak grasp. Their grip is weak. Q And in the surgical reconstruction, what is it you attempt to do? A You try to strengthen that stretched ligament by artificial tissue or the tissue available around the thumb or using one of the tendons that is passing by. Q So you augment the tendon itself by surgically incorporating other tissue as opposed to shortening the tendon? A Yes. You are augmentation. You cannot do any shortening because the tissue that it is stretched is very short to begin with. (Deposition V, pages 6-8, lines 4-22) Surgery was performed on October 12, 1988. Claimant's thumb was augmented for the purpose of improving claimant's grasp. Claimant testified the reconstruction of his left thumb involved surgical procedures into the left wrist and arm. He testified he had stiffness in his hand postsurgery. Claimant also testified his grip strength was worse Page 10 subsequent to his surgery. In his deposition, Dr. Mirbegian testified that he originally rated claimant as having a 14 percent impairment to the left upper extremity. Later, pursuant to a request from defendant's attorney, the physician calculated the impairment to be 37 percent of the thumb (Ex. V, p. 14). Dr. Mirbegian opined in written questions propounded to him (Ex. L-5) that: QUESTION NUMBER 3: With respect to the 14% permanent partial impairment rating to the left upper extremity, is it true that the situs of the actual disability and impairment does not extend beyond Mr. Wilkins' left thumb? ANSWER NUMBER 3: Yes Also, Dr. Mirbegian testified that if a thumb is impaired, a hand is impaired (Ex. V, p. 14, ll. 5-7). It is the determination of this deputy that claimant's left gamekeeper's thumb is an injury to the thumb and not an injury to the hand. While the thumb contributes to normal hand use, vis a vis grasping, the thumb is separate and distinct from the hand. The hand is usable, albeit not normal, without the benefit of the thumb. The medical evidence supports the injury as an injury to the thumb rather than to the hand. Dr. Mirbegian's written response to question three above is uncontroverted. Claimant testified his grasp was weakened, however, the purpose of the thumb is to assist with grasping. Claimant's testimony is entirely consistent with Dr. Mirbegian's opinion that claimant's impairment does not extend beyond the thumb. See Strohmeyer v. Dubuque Packing Co., III Iowa Indus. Comm'r Rep. 244 (1982). Section 84.35(a) governs the loss of a thumb. That section reads: a) For the loss of a thumb, weekly compensation during sixty weeks. The uncontroverted medical testimony equates claimant's permanent partial impairment to a 38 percent loss. Using section 84.35(a), claimant is entitled to 22.8 weeks of permanent partial disability benefits at the stipulated rate of $189.58 per week commencing on December 1, 1989. The final issue to address is whether claimant is entitled to benefits pursuant to section 85.64. Before the Second Injury Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. See Allen v. Page 11 Second Injury Fund, Thirty-fourth Biennial Report of the Iowa Industrial Commissioner 15 (1980); Ross v. Servicemas ter-Story Co., Thirty-fourth Biennial Report of the Iowa Industrial Commissioner 273 (1979). The Act exists to encourage the hiring of handicapped persons by making the current employer responsible only for the amount of disability related to an injury occurring under his employ as if there were no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation - Law and Practice, section 17-1. The Fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). There is no issue whatsoever as to whether claimant suffered a first injury to the right hand. The determinative question in the instant case is whether claimant's injury to the left gamekeeper's thumb resulted in the loss or loss of use of "another such member or organ." This language refers back to the following, and only the following specific scheduled members: hand, arm, foot, leg or eye. In Simmons v. Black Clawson Hydrotile, Thirty-fourth Biennial Report of the Iowa Industrial Commissioner, 313 (App. Decn. 1979), the industrial commissioner addressed the issue of whether one of claimant's injuries was to the hand when the situs of the injury and the subsequent surgeries were confined to the fingers. In that case, the commissioner found that claimant's disability extended into the hand when it was shown that the flexion of the MP or knuckle joints (metacarpal-phalangeal) was reduced. Since claimant's motion in the right hand had been impaired as the result of the injury, the commissioner found the Fund liable. In the intervening years, any number of cases have found that the second injury must be to one of the specified scheduled members set forth in Iowa Code section 85.64. See, for example, Stanek v. Iowa Pork Industries, File number 800365, (Arbitration Decision filed July 28, 1988) ("Had the legislature intended the Second Injury Fund Act to be triggered by the loss of the thumb or another digit, it would have so stated."). An analysis of the medical documentation relevant to this case reveals that claimant's loss of grip affects his left thumb. Dr. Mirbegian wrote that the injury does not extend beyond the situs of the thumb. It is acknowledged that the physician is not competent to make a legal determination as to whether the injury extends into the hand. However, it is interesting to note that Dr. Mirbegian characterized the injury as an injury to the thumb rather than an injury to the hand. Given the foregoing, it is held that claimant's left gamekeeper's thumb is an injury to the thumb and not to the Page 12 hand. Because the thumb does not constitute "another such member" as contemplated in Iowa Code section 85.64, there is no Second Injury Fund liability resulting from the injury. (See Gilbert v, Second Injury Fund of the State of Iowa, File number 826659 (Arb. Decn. September 29, 1989.) order THEREFORE, IT IS ORDERED: Defendant-employer is to pay permanent partial disability benefits for the injuries incurred on March 10, 1988 from July 1, 1988 for a period of nine point five (9.5) weeks at the stipulated rate of one hundred seventy-eight and 56/l00 dollars ($178.56) per week. Defendant-employer is to pay permanent partial disability benefits for the injuries incurred on August 22, 1988, commencing from December 1, 1989 for a period of twenty-two point eight (22.8) weeks at the stipulated rate of one hundred eighty-nine and 58/l00 ($189.58) per week. Defendant-employer shall receive credit for all benefits paid and not previously credited. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendant-employer shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James E. Shipman Attorney at Law 1200 MNB Bldg Cedar Rapids IA 52401 Ms. Marie L. Welsh Attorney at Law P O Box 515 Dept. #41 Dakota City NE 68731 Ms. Shirley Steffe Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 Page 13 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ N. GAIL SMITH, Claimant, vs. File No. 890731 PIRELLI-ARMSTRONG, O R D E R N U N C Employer, P R O T U N C and TRAVELERS INSURANCE CO., Insurance Carrier, Defendants. ________________________________________________________________ On the 22nd day of May 1995 an arbitration decision was entered in this proceeding. An application for rehearing was filed and an order granting rehearing was entered. The parties have subsequently jointly moved for entry of an order nunc pro tunc which corrects an error found in the original arbitration decision. As established by the joint motion claimant was singe and entitled to only one exemption at the time of the injury. Accordingly, the rate of compensation in the arbitration decision should be $344.82 per week rather than $382.57 per week. The arbitration decision should therefore be amended. It is therefore ordered, nunc pro tunc, that the last sentence in the last paragraph of the conclusions of law found at page 4 of the arbitration decision is amended to read as follows: Claimant's weekly earnings round to $630 per week, with claimant being single and being entitled to one exemption the rate of compensation is therefore $344.82 per week. It is further ordered, nunc pro tunc, that the first paragraph of the order found on page 4 of the arbitration decision is amended to read as follows: It is therefore ordered that defendants pay N. Gail Smith one hundred seventy (175) weeks of compensation for permanent partial disability at the rate of three hundred forty-four and 82/100 dollars ($344.82) per week payable commencing March 20, 1990. All past due accrued amounts shall be paid in a lump sum together with interest computed from the day each payment came due until the date of actual payment at the rate of ten (10) percent per annum pursuant to section 85.30. It is further ordered, nunc pro tunc, that the second paragraph of the order which is found at the top of page 5 of the arbitration decision is stricken. It is further ordered that in all other respects the arbitration decision is hereby ratified and confirmed. It is further ordered that in view of this order being entered the hearing scheduled for July 12, 1995 is cancelled. Signed and filed this __________ day of July, 1995. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Pratt Attorney at Law 6959 University Ave. Des Moines, Iowa 50311-1540 Mr. Steven M. Nadel Attorney at Law 100 Court Ave STE 600 Des Moines, IA 50309 Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOANN REIMERS, : : Claimant, : : vs. : : File No. 890718 SCHALLER TELEPHONE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL FARMERS UNION : PROPERTY AND CASUALTY : COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Joann Reimers, against her employer, Schaller Telephone Company, and its insurance carrier, National Farmers Union Property and Casualty Company, defendants. The case was heard on April 23, 1991, in Fort Dodge, Iowa at the Webster County Courthouse. The record consists of the testimony of claimant and the testimonies of Marlys Krose, bookkeeper; Julie Turner; and, Kenda Jochimsen, vocational rehabilitation counselor. Additionally, the record consists of claimant's exhibits 1-5 and defendants' exhibits A-P. issues The issues to be determined are: 1) whether there was an employer-employee relationship between claimant and employer; 2) whether claimant received an injury which arose out of and in the course of her employment; 3) whether there is a causal relation ship between the alleged injury and the disability; 4) whether claimant is entitled to temporary disability/healing period bene fits or permanent partial disability benefits; and, 5) whether claimant is entitled to certain medical benefits under section 85.27. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is married to Steve Reimers, the manager of Schaller Telephone, Schaller Telemarketing and Com-Serve. Glen Reimers, claimant's father-in-law, owns Schaller Telephone - Schaller Telemarketing and Com-Serve. He is the person duly authorized to sign checks for all three business entities. Page 2 Claimant had experienced prior back problems in 1983 and 1985. She was hired in 1984, ostensibly for Schaller Telephone Company. Her duties included performing secretarial duties and bookkeeping. It is unclear to the undersigned what the actual relationship was between Schaller Telephone Company, Schaller Telemarketing and Com-Serve. Marlys Krose, bookkeeper for Schaller Telephone, described the three entities as "subsidiaries." It is apparent to the undersigned that claimant was paid on checks drawn upon the account of Schaller Telephone Company, no matter for which entity she provided services. Employees who performed services were paid by Schaller Telephone Company and if the services were performed for Schaller Telemarketing or Com-Serve, then their services were charged to Schaller Telemarketing or Com-Serve and Schaller Telemarketing and Com-Serve "paid back" Schaller Telephone. All employees completed their own time sheets and they were approved by Glen Reimers, prior to the issuing of Schaller Telephone payroll checks. According to Ms. Krose, there were times when claimant was employed by Schaller Telephone. Claimant and her neighbor, Julie Turner, were contacted by Steve Reimers to design and sew drapes for the building which housed Schaller Telemarketing. The windows were large store front ones. Ms. Turner testified she could not recall the amount which she received for her services. The drapes were made at the home of claimant. On day one of the project, claimant and Ms. Turner placed drapery fabric on two saw horses with plywood stretched between the two saw horses. The women were working side-by-side. They were measuring fabric, pinning it and cutting it to the window specifications. The women were working while bent over the plywood. After about three hours, claimant complained of low back pain. She ceased working on the project and laid down. While she later assisted Ms. Turner with the drapes, she never again helped with the pinning aspect of the project. Claimant sought medical attention for a back condition and right leg pain. She was hospitalized at the Marian Health Center. Quentin Durward, M.D., performed microsurgical diskec tomies on the right side at L5/S1 and at L4/5. Dr. Durward determined claimant had a massive herniated sequestrated L5/S1 disk. Dr. Durward consulted J. J. Dougherty, M.D., for a second opinion. He too opined that claimant had a herniated disk at L4/5 and L5/Sl with a degenerative disk at L5/Sl. Claimant was referred to a back clinic which was operated by Brian W. Nelson, M.D. Claimant participated in the rehabilita tion program. As of June 28, 1989, Dr. Nelson opined: ASSESSMENT: Right leg pain, probably due to scarring around the nerve root from previous surgery. Patient also could have had a re-herniation of her disk. RECOMMENDATION: 1) I don't think any more rehab would be effective for this patient and I think she has maxi mized what she can do through that route. I think that Page 3 if her leg continues to deteriorate that she is going to have to seriously consider re-exploration of the disk spaces and possible exploration of the nerve root for excessive scar tissue.... (Exhibit 3, page 6) Postoperatively claimant experienced low back pain and numbness in the right leg. Gradually, claimant's symptoms worsened. She experienced pain with prolonged sitting. Subsequently, another myelogram was performed. Dr. Durward diagnosed claimant's condition as: It does appear as though right sciatica is now due to spinal arachnoiditis. We are going to start treating her with Pamelor in an attempt to reduce the amount of neurogenic pain she has. I will see her back in clinic in 6 weeks time. If that fails to give her satisfac tory relief, we may try specific L5 and Sl blocks. (Ex. 2, p. 19) Dr. Durward opined claimant benefited from the Pamelor. As of March 26, 1990, Dr. Durward opined: Physical exam demonstrates a very fit well-looking woman. She forward flexed to 80 degrees with excellent curve reversal and she extended well. Straight leg raising was unrestricted bilaterally with her sitting, although she did get some pulling in the right buttock and posterior thigh at 90 degrees on the right side. Her power exam is normal. Her reflex exam shows a 1+ left knee reflex, trace right knee reflex, absent right ankle reflex, 1+ left ankle reflex. Pin examination shows blunting of pin in the outer right calf. She has a very stable neurological exam. She still has some residual radicular pain complaints and the resid ual deficit as noted. My review of the current dis ability and impairment systems has revealed that according to the American Orthopedic Academy Guide to the Rating of Permanent Impairment, she qualifies for a 20% disability. I think this is more than the 10% I had previously given her but it reflects the fact that she has ongoing intermittent pain and persistent numb ness. The other problem she has is the question of getting back to work. I would think that she probably could get back to her job at least starting 2 hrs per day with avoiding bending, no lifting more than 5 lbs., and a job where she can intermittently sit and stand as her symptoms warrant. We are going to taper her off the Pamelor. Hopefully she is not going to get a recurrence of the severe aching pain that she had before going on the Pamelor. If she does I think we will just restart it. (Exhibit 2, page 22) Page 4 Later, Dr. Durward treated claimant with a TENS unit and some root blocks. Defendants sent claimant to Joel T. Cotton, M.D., a neurolo gist. Dr. Cotton examined claimant on March 8, 1991. He opined claimant's condition was compatible with a residual right first sacral nerve root involvement (Ex. P., p. 9, lines 8-9). Dr. Cotton did not causally relate claimant's condition to the alleged work injury (Ex. P., p. 14, ll. 22-24). Dr. Cotton opined claimant had a 12 percent functional impairment and that eight percent of the impairment preexisted the incident in ques tion. Dr. Cotton testified that her condition in 1991 was basi cally the same condition as claimant had back in 1983 and 1985. In his report of March 11, 1991, Dr. Cotton wrote in rele vant portion: Neurological examination reveals an alert, attentive 38 year old woman who appears to be in no acute dis tress. Station and gait are normal. She walks well on her heels and toes and tandem. Rapid alternating move ments are done well in all extremities. Cerebellar testing is normal. Romberg's position is maintained without drift of the outstretched arms with the eyes closed. Examination of the cranial nerves demonstrates no abnormalities and ophthalmoscopic examination is normal. There is normal muscular strength in her arms. There is normal strength in the legs proximally and distally. She can support her entire weight on the ball of either foot independently. She has no weakness of the extensor hallicus longus. She can rise from a full squat easily. There is diminished sensation over the right foot more pronounced laterally than medially. Sensation in the left foot and in the arms is normal. Muscle stretch reflexes are present and bilaterally symmetric in the upper extremities. Knee jerks are diminished bilaterally but are present and symmetrical. The right ankle jerk is absent compared to the left which is present. Straight leg raising can be done to 90 degrees bilaterally in the seated position with no apparent complaint of pain. It is positive at 75 to 90 degrees on the right with the patient lying supine. There is unrestricted movement of the hips unaccompa nied by appreciable subjective discomfort. There is good lateral bending and extension of the back. She stoops over to reach within 16 to 18 inches of the ground with her extended fingertips. There is a 1 cm. difference in the circumference of the calves measured 12 cm. distal to the tibial plateau (right calf smaller than left). Clinical Impression: This patient's neurological examination is normal except for an absent right ankle jerk, diminished sensation over the right lateral foot, as well as slight asymmetry in the calf circumference on the right leg compared to the left. This is compat ible with a residual right first sacral radiculopathy. She has reached maximum medical benefit. Page 5 (Ex. P, Ex. l, p. 2) While claimant was released to return to work for two hours per day as a clerical worker, claimant only returned to work on an infrequent and intermittent basis. Mostly claimant organized a telephone museum and performed various errands for Schaller Telephone. Claimant contacted the Department of Vocational Rehabilitation and participated for a period of time with Kenda Jochimsen, a counselor. At the time of the hearing, claimant was not regularly employed. conclusions of law The first issue to address is whether claimant was an employee of defendant Schaller Telephone on the day of the alleged work injury. Claimant was always paid by Schaller Telephone. She was compensated by checks from Schaller Telephone for all of the services she performed for Schaller Telephone, Schaller Telemarketing, or Com-Serve. Glen Reimers, owner of Schaller Telephone, authorized checks written to claimant. He approved all time sheets. It is the determination of this deputy that claimant was an employee of Schaller Telephone on March 2, 1988. The next issue to address is whether claimant's alleged injury arose out of and in the course of her employment. Claimant performed services pursuant to the request of the business manager, Steve Reimers. Claimant was authorized to work in her home. She designed drapes for the benefit of defendant-employer. She was to be compensated for her services. She sustained an injury to her back while she bent over the make-shift sewing table. The injury arose out of and in the course of her employment. The next issue to discuss is whether claimant's condition is causally related to the work injury of March 2, 1988. J. J. Dougherty, M.D., provided a second opinion pursuant to a request from Dr. Durward. Dr. Dougherty did not causally con nect claimant's condition to the sewing incident. As of April 11, 1989, the treating physician, Dr. Durward wrote: Mrs. Joann Reimers had two ruptured discs. It appears that this rupture was not directly related to her employment although, of course, jobs involving a lot of bending and lifting frequently add to the degenerative disease. I do not believe that failure to do exercise or obesity are specifically causes of this ladies degenerative disc disease. Mrs. Reimers may have fur ther injured her back while she was pinning curtains on March 2, 1988. Mrs. Reimers can undertake an occupa tion which avoids lifting more than 25 pounds and avoids bending and twisting. This is my opinion that she has permanent partial impairment rating of 10% and this has been so since her operation. She did not have a permanent partial impairment rating of 10% prior to March 2, 1988. Page 6 (Ex. 2, p. 17) Dr. Durward's opinion is ambiguous, at best. This deputy is unable to determine whether Dr. Durward causally relates claimant's condition to the March 2, 1988 work injury, or whether he opines that the work injury is unrelated to claimant's condi tion. Exhibit 2, page 17 is troublesome. The physician's report is unclear especially when it is coupled with Exhibit 2, page 10. In that report, Dr. Durward writes: CLINICAL SUMMARY: Mr. [sic] Reimer [sic] is a 35-year-old woman who pre sented with a progressive onset of severe right sciat ica. She doesn't remember specific precipitating events, but more recently the pain had become excruci ating. Previously, several years ago, she had had an episode of back pain and possible left sciatica from which she made an excellent recovery with conservative measures. Dr. Rod Miller had treated Mrs. Reimers with some excellent conservative measures, but they had all failed to give her relief. Finally, there is the opinion of the doctor retained by defendants to examine claimant. Dr. Cotton expressly denies there is a causal relationship between the alleged injury and claimant's condition. Dr. Cotton had testified that the work injury did not accelerate or aggravate claimant's preexisting low back condition. Furthermore, Dr. Cotton testified that claimant's current condition is basically identical to her condi tion in 1983 and 1985. None of Dr. Cotton's testimony supports claimant's allegation that her work injury was causally related to her condition. A clear case of causal connection has not been established by claimant's treating physician. The evidence does not support the requisite causal connection. At best, the treating physician is confusing. Claimant has not met her burden of proof relative to the element of causal connection. Therefore, claimant takes nothing further from these proceedings. order IT IS ORDERED: Claimant takes nothing further from these proceedings. Each party shall pay its own costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of October, 1991. Page 7 ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Colin J. McCullough Mr. David P. Jennett Attorneys at Law 701 W Main St Sac City IA 50583 Mr. Robert B. Deck Attorney at Law 225 Frances Bldg Sioux City IA 51101 1108 Filed October 22, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : JOANN REIMERS, : : Claimant, : : vs. : : File No. 890718 SCHALLER TELEPHONE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL FARMERS UNION : PROPERTY AND CASUALTY : COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108 Claimant was unable to establish the requisite causal connection. Even the treating opinion relative to the issue of causal connection was confusing at best. Claimant did not meet her burden of proof. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT R. BEAMER, : : Claimant, : : vs. : : File No. 890720 A-1 READY MIX, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Robert R. Beamer against A-1 Ready Mix, Inc., his former employer, and Aetna Casualty & Surety Company, the employer's insurance carrier, based upon an injury that occurred on October 27, 1985. The issue to be determined is the extent of permanent disability which resulted from that injury. The case was heard at Des Moines, Iowa on April 23, 1990. The record consists of testimony from Marian Jacobs, Kitty Beamer, Robert Beamer, Jan Hardcopf-Bickley, joint exhibits 1 through 16 and defendants' exhibit A. findings of fact Having considered all the evidence received together with the appearance and demeanor of the witnesses, the following findings of fact are made. Robert R. Beamer is a 47-year-old man who currently lives at Route 3, Jacksonville, Texas with his wife, Kitty. Robert has a GED. Robert's work history consists primarily of mechanical work and truck driving. He has supervised as many as three mechanics. Claimant worked for A-1 Ready Mix Company from 1977 until the 1985 injury. His work involved long hours, sometimes seven days per week. His wife described him as a workaholic. At the present time, he lives on a 12-acre tract of land, of which one acre is used as a garden to grow vegetables and melons for family consumption. Most of the land is untilled. Claimant raises no livestock. Claimant does have a tractor with a specially designed seat which he sometimes operates. He explained that his endurance for driving the tractor is approximately 30 minutes. Claimant has modified his pickup and farm Page 2 equipment in order to make it more readily operable for him. He explained that the task took much longer for him to perform than what would be required for a healthy mechanic. Robert Beamer has three significant medical conditions. In 1982, his right leg was amputated above the knee due to osteomyelitis and pain which probably resulted from a 1970 motorcycle accident. Claimant also has chronic obstructive pulmonary disease which was diagnosed at least as early as 1981. He suffers recurrent pneumonia and uses a nebulizer twice daily as a result of the pulmonary condition. He has not, however, ceased smoking. Claimant's back difficulties began with an injury that occurred while working for this employer in 1984. Claimant underwent a lumbar laminectomy at the L4-5 level of his spine, the surgery being performed by Marvin H. Dubansky, M.D., a Des Moines, Iowa orthopaedic surgeon. Claimant returned to light work less than two months following that 1985 surgery. On June 10, 1985, he fell while on the job and fractured his left hand (exhibit 2, page 7). Dr. Dubansky agreed that claimant recovered satisfactorily from the surgery and was working well until he fell on October 27, 1985 (exhibit 3, page 5). On October 27, 1985, claimant was walking in the employer's shop while in the process of installing fenders on a truck. He slipped on a piece of cardboard and fell, landing in a seated position. Claimant again sought treatment from Dr. Dubansky and was diagnosed as having a fracture of the seventh thoracic vertebra. He was hospitalized and also developed pain in his low back and legs. After conservative treatment and an unsuccessful attempt to resume employment, claimant underwent a second low back surgery on June 13, 1986. Dr. Dubansky expressed the opinion that both the fracture of the seventh thoracic vertebra and the June, 1986 surgery were necessitated by the fall which claimant sustained on October 27, 1985 (exhibit 3, page 4). Dr. Dubansky found that claimant's L4-5 disc was bulging (exhibit 12, page 18). John T. Bakody, M.D., had previously diagnosed the bulging from a CT scan (exhibit 10, pages 1 and 2). Dr. Dubansky reported that "if patient fell hard enough to sustain a new fractures [sic] of T-7 the stirring up or possibility of doing the same at the lumbosacral area is probably quite good." (Exhibit 12, page 13) Claimant has not since returned to work. He experiences ongoing pain in his low back and difficulty with his legs. Wearing his prosthetic device on his right leg aggravates his back so much that he uses a wheelchair most of the time. Claimant stated that his ability to sit at any one time is limited to approximately two hours. He stated that he can walk with crutches for approximately 150 feet. He felt that he would be unable to lift 50 pounds or to even lift 10 pounds repetitively. At times, claimant's remaining leg buckles causing him to fall. Claimant has undergone treatment at a pain center in Texas without obtaining any Page 3 significant relief (exhibit 2, pages 12-15). Claimant described his normal day of consisting primarily of going to the barn and piddling around. He stated that he lies down for rest periods whenever he feels the need. Claimant testified that he has not sought work because he knows of no job which he would be capable of performing. He did, shortly before hearing, go to a job placement center near his current residence where he was told that there was no work available. Claimant did seek employment from defense counsel, but none was offered. Claimant stated that he would be employed if he were capable of working. The description of claimant's current physical complaints and problems as related by himself and by his wife, Kitty Beamer, are accepted as being correct. They are both found to be fully credible. Claimant has sought continuing medical care from a number of sources. Claimant has declined to undergo further surgery. Dr. Dubansky, whose assessment of this case is accepted as being correct due to his status as an experienced orthopaedic surgeon and the primary treating surgeon, has stated that claimant has chronic postoperative laminectomy syndrome. He doubts that further treatment will provide any improvement. Dr. Dubansky also stated that claimant currently has a 25 percent permanent impairment of the whole body due to his back condition. He stated that 10 percent is due to the compression fracture of the T-7 vertebra, 5 percent is from the first lumbar surgery, and 10 percent is from the second lumbar surgery (exhibit 3, pages 2 and 3). Dr. Dubansky felt that claimant might be able to work installing hand controls in vehicles (exhibit 1, page 3). Claimant was also evaluated by Scott B. Neff, D.O. Dr. Neff expressed the opinion that claimant's right lower extremity, low back problems and lung problems are unrelated to his fall at work and that the low back condition is a result of his prior surgery and additional wear resulting from walking with the amputation. Dr. Neff stated that claimant has a five percent permanent impairment to the body from his lumbar spine and this work injury. He stated that the severe impairment was from the prior low back surgery and amputation. Dr. Neff did not have available x-rays of claimant's thoracic spine and provided no impairment rating for the thoracic vertebra fracture (exhibit 4, page 3). Dr. Neff also recommended that claimant be evaluated by M. Joseph Shepard, M.D., a Tyler, Texas orthopaedic surgeon (exhibit 4, page 4). Dr. Shepard evaluated claimant and in his report stated that he did not know if claimant could be rehabilitated (exhibit 1, page 1). Guy O. Danielson, III, M.D., a Tyler, Texas neurosurgeon, reported that further surgery would not be likely to help claimant (exhibit 5, page 1). Page 4 Claimant has been evaluated by two vocational consultants: Marian Jacobs from Des Moines, Iowa and Jan Hardcopf-Bickley from Omaha, Nebraska, who has previously resided in the Tyler, Texas area. Both consultants generally agreed that claimant's current physical restrictions include no heavy work, no prolonged standing or sitting and no repeated lifting or bending (exhibit 13, page 2). Jacobs expressed the opinion that there are some jobs which exist in the competitive work force which Robert Beamer could perform with his disability, but that in view of his inability to ambulate and need to take rests, he could not work a normal eight-hour day on a day-after-day basis. She stated that he needed some type of sheltered workshop or supported work. Jacobs stated that many of the jobs suggested by consultant Bickley were beyond claimant's physical capacities or would require an employer to modify vehicles and that it was not realistic to expect an employer to do so. Jacobs felt that claimant's relatively low reading and writing skills made a number of Bickley's suggested jobs inappropriate. Jacobs felt that, while claimant was capable of performing a number of work activities and had skills and expertise, he did not have the ability to perform competitive work on a day-in, day-out basis. She explained that the pace of the work is a critical factor. Jacobs stated that the quantity of work which claimant could perform is so reduced that no reasonably stable market exists for his services. In Jacobs' opinion, claimant's respiratory ailment is not a substantial factor in his lack of ability to be employed and that her opinion would be the same even if he did not have the respiratory ailment. Jan Hardcopf-Bickley felt that some of claimant's vocational assessment test scores were invalid. She identified a number of jobs which in her opinion were suitable for claimant. Bickley performed a job search and found a number of jobs which she felt were suitable and available for claimant (exhibit A). Bickley stated that she has a 98 percent placement rate and that she could find employment for claimant in the Des Moines, Iowa area which would pay in the range of $6.00 per hour or higher. Bickley made inquiries in the Tyler, Texas area and concluded that work was available for claimant in the area of his current residence. The evidence presented by Marian Jacobs is found to be more reliable and accurate than that provided by Bickley. The undersigned finds it to be unlikely that the vast list of employers would give preference to hiring claimant over current employees who are equally skilled, more familiar with the particular business and not disabled. While claimant's skills and expertise are valuable, skills of that type are not particularly unique and are held by many persons. The assessment from Jacobs that it is necessary to not only be able to perform a work activity, but to also be able to perform it at a competitive or commercially feasible rate is quite convincing. The fact that claimant modified his own vehicles to adapt them for his handicap does not Page 5 indicate that he has the ability to work at a competitive or commercially feasible rate of productivity in order to be employable in such an occupation. According to claimant's testimony, which has been found to be credible, he does not have the ability to work at a competitive rate of productivity. Claimant certainly has the experience and background to know what rate of productivity is required for a mechanic in a competitive employment setting. It is determined that Robert Beamer does not have sufficient remaining earning capacity to enable him to be regularly employed in the competitive labor market. He does not have sufficient residual earning capacity in order to be able to earn a living for himself. He has been awarded Social Security disability benefits and his current living status is very appropriate for him. His decision to leave Iowa in order to avoid the expense associated with winter heating was reasonable. Claimant's current activities on his Texas acreage are in fact simply tinkering around and do not constitute any evidence that he is capable of being gainfully employed or gainfully self-employed. He has not made a bona fide effort to find a job, but doing so would be futile. A large part of claimant's current state of disability results from conditions which existed prior to October 27, 1985 when he fell. He was capable of performing gainful employment with A-1 Ready Mix Company prior to the time of that fall. That fall sufficiently worsened the condition of his back that he has not been able to resume employment with that employer or any other. The fall that occurred on October 27, 1985 is a substantial factor in producing his present state of disability. conclusions of law The fall which claimant suffered on October 27, 1985 is established by stipulation and claimant's testimony. That does not, however, establish the extent of disability which was produced by that fall. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 27, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d Page 6 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). For a cause to be proximate, it must be a substantial factor, but need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Aggravation of a preexisting condition is one form of compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Robert Beamer clearly had a preexisting respiratory ailment, amputation of his right leg and a prior back injury. Those were all preexisting conditions at the time of the October 27, 1985 fall. Dr. Dubansky expressed the opinion that the fall produced not only the thoracic vertebra fracture, but also additional injury to claimant's low back. That assessment and claimant's own testimony that his low back condition was worse after the fall have been found to be accurate and correct. It is therefore concluded that the fall and injuries sustained on October 27, 1985 are a proximate cause of the disability which currently afflicts Robert Beamer. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning Page 7 capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant contends that he is permanently and totally disabled. Assessment of industrial disability involves consideration of the various factors previously identified. Total disability under compensation law is not to be interpreted literally as utter and abject helplessness. The ability to earn some wages is evidence that the person has earning capacity commensurate with those earnings. 2 Larson Workmen's Compensation Law, section 52.21(d). The test of permanent total disability in workers' compensation has been long established. When the combination of factors considered in determining industrial disability precludes the worker from obtaining regular employment in which he can earn sufficient wages to be self-supporting, his disability is total. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). Claimant, by his testimony, the testimony of Marian Jacobs and the corroborating medical evidence, has made a prima facie showing that he is totally disabled. He has not, however, made a bona fide effort to seek employment and he therefore is not entitled, under existing agency precedent, to be considered "odd-lot" or to benefit from the shifting of the burden of proof that occurs when a prima facie showing is made under the "odd-lot" doctrine. Collins v. Friendship Village, Inc., file number 679258 (App. Decn., October 31, 1988); Emshoff v. Petroleum Transp. Services, file number 753723 (App. Decn., March 21, 1987). Despite the foregoing precedents, it is concluded that Robert R. Beamer is permanently totally disabled within the meaning of Iowa Code section 85.34(3) and is entitled to recover weekly compensation benefits accordingly. Robert Beamer certainly had a very significant level of preexisting disability as evidenced by his preexisting conditions. His earning capacity had previously been reduced. As a result of the October 27, 1985 injury, he has now lost 100 percent of the earning capacity which had previously remained. Despite this claimant's previously reduced earning capacity, his capacity, as it existed immediately prior to the October 27, 1985 injury, was in all likelihood greater than the earning capacity of some individuals who had never sustained any injury or disability. When dealing with industrial disability, rather Page 8 than scheduled disability, the percentage assessment is based upon the earning capacity which existed at the time of the injury rather than the earning capacity which might have existed at some prior time. When an injury produces total disability, the degree of preexisting permanent partial impairment or permanent partial disability is of no consequence. The worker receives benefits for total disability because the worker needs to acquire the necessities of life. They are a replacement for the wages which the worker is no longer capable of earning. One of the elementary principles of the workers' compensation system is to provide benefits when and where they are needed. It would be totally inconsistent with that intent and also illogical to deny benefits for some waiting period, or to provide benefits at a reduced amount, when the person is totally disabled. It is therefore concluded that, when permanent total disability results, there is no apportionment for preexisting disability and that benefits are payable in the prescribed weekly amount without interruption or reduction for whatever disability preexisted. Loftus v. Waterloo Community School Dist., file numbers 777678 and 748818 (App. Decn., March 30, 1989). Work in a sheltered workshop setting does not preclude a finding of permanent total disability. Warner v. Jensen Transp., Inc., file number 702191 (Arb. Decn., March 12, 1990). order IT IS THEREFORE ORDERED that defendants pay Robert R. Beamer compensation for permanent total disability at the stipulated rate of four hundred sixty-five and 71/100 dollars ($475.71) per week payable commencing November 6, 1986 as stipulated by the parties in the prehearing report. Said payments shall continued throughout the remaining lifetime of Robert R. Beamer so long as he remains totally disabled pursuant to Iowa Code section 85.34(3). IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 9 Mr. Peter W. Berger Attorney at Law 1217 Army Post Road Des Moines, Iowa 50315 Mr. Glenn Goodwin Attorney at Law 4th Floor, Equitable Building Des Moines, Iowa 50309 1804, 1806 Filed July 30, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ROBERT R. BEAMER, : : Claimant, : : vs. : : File No. 890720 A-1 READY MIX, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1804 Forty-seven-year-old claimant with a GED whose work history was that of a mechanic and truck driver was found to be permanently totally disabled. Claimant had a prior above knee amputation of his right leg, a prior laminectomy and a preexisting respiratory ailment. He then fell, fracturing a vertebra and requiring additional surgery at the site of the previous laminectomy. Claimant was thereafter held to be permanently totally disabled, despite not making any efforts to seek work. 1806 It was held that no apportionment for preexisting disability can be made when the result is permanent total disability. It was held that any percentage determination of loss of earning capacity is based upon the earning capacity which existed at the time of the injury rather than that which might have existed at some previous time.