BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ ROBERT GRAGG, : : Claimant, : : vs. : : File No. 898727 CROWN READY MIX, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND, : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This case came on for hearing on April 28, 1994, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a a result of an alleged injury occurring on May 4, 1988. The record in the proceedings consist of the testimony of the claimant, Leslie Turner and Marlo Gillotti; claimant's exhibits 1 through 27; and, defendants exhibits A, B and C. ISSUES The issues for resolution are: 1. Whether there is a causal connection between claimant's alleged permanent disability and his alleged May 4, 1988 injury; 2. The extent of claimant's permanent disability, if any, and entitlement to disability benefits; 3. When would benefits begin if any permanent disability benefits are awarded. The parties contend that they would begin either August 19, 1990 or March 6, 1991; 4. An 85.39 examination issue, the amount involved being Dr. Kelley's $975 bill; and, 5. An 85.27 medical expense issue, the issue basically being causal connection. The total amount involved is $1,485. The defendants raised the affirmative defense that claimant filed a waiver of physical defect. The undersigned Page 2 had ruled in a conference call with the attorneys on April 25, 1994 concerning a motion to amend to add the waiver. The undersigned's ruling in writing was issued April 27, 1994. The undersigned again made the same ruling at the beginning of the hearing when this issue surfaced again and said motion to amend the answer to add said waiver was again denied. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is 59 years old and finished the eleventh grade. He indicated he didn't finish school because he couldn't get along in school. Claimant has had no further formal education. Claimant related his work history prior to beginning work for defendant employer in 1984. Claimant's prior work history was basically in manual labor type of employment involving foundry work, construction, and operating heavy equipment. In 1969, he worked as a truck driver and has been a truck driver since that time. Claimant testified as to his prior injuries, one of which was in December of 1987, in a deer hunting accident in which he hurt his neck. Claimant indicated he ultimately in December of 1987 had surgery and a fusion and was discharged in December of 1987. Claimant said he was released to work February 27, 1988, with no restrictions and returned to the same job he had before his hunting accident. This job involved making deliveries and operating a concrete truck. Claimant emphasized he had no trouble performing his job upon his return from his 1987 injury. Claimant described how he was injured on May 3 or 4, 1988. The undersigned will refer to May 4, 1988 as the injury date as there is no dispute that an injury in fact did occur. Claimant described the medical treatment he received pursuant to his May 4, 1988 injury. This included therapy and work hardening. Claimant indicated that the defendant employer did not have light duty work and so he asked the union to try to enable him to go back to work. Claimant then indicated he got a job driving the belly dump truck which hauled materials from the quarry to the site. Claimant said that he got so stiff doing this job he couldn't move and asked for a different job involving short hauling. Claimant tried to talk Thomas A. Carlstrom, M.D., to let claimant try to go back to driving a Ready Mix truck. The doctor indicated he couldn't handle it. The doctor finally agreed upon claimant's insistence that he wanted to go back to work at that job. Claimant talked with the Page 3 president of the company, Marlo Gillotti, who indicated he didn't think claimant was able to do the job. Claimant testified that on February 5, 1990, he had a torn rotator cuff surgery and a carpal tunnel surgery, which is reflected in claimant's exhibit 18, page 1. Claimant then referred to claimant's exhibit 21 dated September 26, 1990, in which Dr. Carlstrom opined claimant had a 10 percent impairment to his body as a whole and had a restriction from 25 to 30 pounds and that he was releasing claimant to go back to work but indicated he should avoid truck driving. Claimant contended there was no job with that restriction. Claimant indicated that he lost three years of credit toward his retirement because of his 1988 injury. He acknowledges that his wage has been kept the same with the normal adjustments so that he does not have a loss of hourly wage. Claimant described how he hurts and aches after a day's work but acknowledges that currently he has no restrictions even though he acknowledges there are jobs he previously had that he feels he could not do or perform today. Claimant then was extensively questioned concerning a settlement approved by the industrial commissioner's office involving himself and Inland Mills, employer, in which there was reference to a July 13, 1982 alleged injury, a June 1, 1983 alleged injury and a July 6, 1983 alleged injury, all of which were settled in that compromise settlement under the provisions of 85.35 of the Iowa Code. Claimant acknowledged that in those proceedings the doctor concluded that claimant could not longer do over-the-road driving but notwithstanding that, he went to work for defendant employer in June of 1984, driving a concrete truck. Claimant distinguished over-the-road driver versus regular truck driver as one in which on the over-the-road, they are much longer rides as one is sitting and driving for longer periods of time. Claimant acknowledged that prior to May 1988, he had a carpal tunnel diagnosis. Claimant agreed that he signed on December 5, 1987, a waiver on account of a physical defect. The undersigned might note in his previous rulings that he has allowed this testimony as to any issue of apportionment but not as to the effect of the waiver itself. Claimant indicated that a rehabilitation person tried to find claimant a job and helped in getting a full release to return to work so claimant could return to work for defendant employer who then took him back. Prior to this full release, claimant had a weight restriction. Claimant testified that it has been two plus years since he got the full release and he has been driving a concrete truck for defendant employer all this time. Claimant said he intends to continue driving until his retirement. He knows nothing that will prevent him from leaving defendant employer and driving the concrete truck. Page 4 Claimant indicated he was hired by defendant employer originally as a truck driver but had bid into a warehouse job and obtained that job because of seniority and was doing this particular job when he was injured on May 3 or 4, 1988. Claimant further acknowledged that he did not miss work until September 17, 1988 because of his May 4, 1988. It appears to be undisputed that claimant would not have been put back to work by defendant employer had those restrictions not been removed as defendant employer had no light duty jobs. Claimant works a lot of overtime and emphasized he does not refuse overtime if offered to him and will do it whenever he can. He further acknowledged that with his seniority he has worked through the winter for the last several years. Claimant said he had no impairment rating from his many prior injuries and that he had no pain or problems from his 1987 injury or the fractured cervical spine. Claimant again emphasized he went to Dr. Carlstrom in August 1990 so he could go back to his Ready Mix job. (Claimant's Exhibit 1, page 19) Claimant referred to claimant's exhibits 4 and 5, which are the letters of S.W. Haag, M.D., and Mayo Clinic, who indicates claimant was not to do over-the-road, long hauling work or unloading. Mayo Clinic indicated claimant may be able to resume his long distance truck driving in the future. Leslie Turner, secretary-treasurer of the Teamsters Local 90, testified that he has negotiated contracts for approximately 15 years for the union and their relationship with the employer. He said claimant sought his assistance to try to get back to work because the company wouldn't take him because of his restrictions. Mr. Turner talked to Mr. Gillotti. He tried to get claimant a different job than he was doing at the time of his injury but there is a question of bidding and seniority. Claimant was put on as belly dump driver which involved shorter runs to the gravel pits. Claimant was having problems with his job. He said claimant always wanted to be a Ready Mix driver but Mr. Gillotti was worried about claimant's back. He said eventually in the spring of 1991, when the restrictions were lifted, claimant got his job back as a cement driver. He said that claimant could not be an over-the-road driver who he classified as one running 300,000 to 400,000 miles a year. He said that if claimant lost his job he would have trouble getting a job as in a lot of these types of jobs there is a probationary period and they may not hire claimant. He said in claimant's current job there are occasions in which he must lift things. Marlo Gillotti, president of the defendant employer, testified that he is familiar with claimant. He said claimant returned to work on February 20, 1988 after having signed a waiver on account of a physical defect. He said his concern for the claimant was that when he was visiting claimant in the hospital it was indicated claimant would not be able to return to work for two years and was surprised Page 5 when claimant came back in two months to try to work. He said he didn't want to be responsible for claimant aggravating his back and that he wanted claimant to return to work without restrictions. He emphasized that he cannot go in and move people around as the bidding process applies. He said claimant's work ethics is one of the best but like himself, claimant is hot headed. He said claimant works overtime whenever he can get the hours and defendants can supply them to him. He said claimant has no problems getting the job done. One of the major issues in this case is claimant's prior injuries prior to his May 4, 1988 injury. Claimant's exhibit 1, pages 1 through 9, reflect various injuries claimant had which affected his body as a whole including his cervical area, shoulder area, right knee, arm, chest. Claimant was released to return to work on November 23, 1982. In July of 1983, the record shows claimant jammed his head against the dashboard of the truck. Page 10 of claimant's exhibit 1, on April 10, 1984, claimant's cervical spine x-ray showed some degenerative changes and the shoulder x-rays were normal but the doctor felt claimant had bilateral carpal tunnel syndrome and discussed possible decompression in the future if his symptoms became more severe. December of 1987 was the other accident at which time the records shows a fracture of the antroinferior. December of 1987 that has been previously referred to was the deer hunting incident which was a severe injury. Claimant's exhibit 1, page 11, shows Dr. Carlstrom performed a posterior cervical fusion at the C4-5 level and in February of 1988, there is no abnormal range of motion between flexion and extension. Page 12 of said exhibit shows claimant's treatment then for his May 4, 1988 injury that is in question herein. A note by Dr. Carlstrom on March 22, 1989, on page 16 of said exhibit, is more fully explained by exhibit 13 which is his letter dated March 21, 1989, in which he indicated he didn't think claimant's cervical spine injury of 1987 had anything to do with his current problems as he had returned to work full time. He also thought claimant should have an impairment rating of about 3 to 4 percent to the body as a whole and all of this would be related to his 1988 injury. Page 17 of said exhibit shows a February 5, 1990 note of the surgical release of the transverse carpal ligament of the right wrist and partial acrimonioplasty and release of the coracoacrimonial ligament right shoulder. Page 19 of said exhibit is an August 9, 1990 note of Dr. Carlstrom which is more fully explained by claimant's exhibit 20 in which he indicates claimant wanted to try the Ready Mix truck driving job and he gave him the okay but wasn't sure claimant could handle it. The doctor, in his letter, indicated claimant should be considered to be at maximum benefits and healing. He thought claimant would tolerate his return to work very poorly but thought he should give it a try. He didn't place any restrictions on Page 6 claimant because the doctor felt the company would not take claimant back with any restrictions. Claimant did not last very long in that job, as reflected in Dr. Carlstrom's September 11, 1990 note. Claimant's exhibit 21, a September 26, 1990 letter of Dr. Carlstrom, again indicates claimant probably has reached maximum benefits of healing from this injury but he will still have problems and never be pain free. He indicated claimant returning to work should not require heavy lifting and he would recommend a 25 to 30 pound maximum with his upper extremities and avoid sitting or standing for any length of time, probably for an hour at maximum and he needs to avoid truck driving. He related this to claimant's May 1988 injury and opined claimant had a 10 percent impairment to his body as a whole. Defendants' exhibit 4, which has been referred to earlier, is a March 9, 1994 letter in which Dr. Haag indicated claimant could resume any work except over-the-road long hauling work or unloading. In April 1984, a Dr. Rand of Mayo Clinic, indicated claimant's x-rays of his cervical spine showed narrowing of the C5 interspace with some degenerative changes but no other significant abnormalities and that x-rays of the shoulder were normal. He also felt claimant had a bilateral carpal tunnel syndrome and discussed possible surgical decompression in the future if claimant's symptoms became more severe. (Cl. Ex. 5) Claimant's exhibit 6 is the surgery report of Dr. Carlstrom in which a cervical fusion of C4-5 was done on December 9, 1987. Claimant's exhibit 8 reflects an office note of February 25, 1987 in which claimant was given authorization to return to work on February 26, 1988. There is a note indicating he did return to work on February 27, 1988. Exhibit 9 refers to the fact that on February 26, 1988, his return to work was with no restrictions. The undersigned might note that another date of February 25, 1987 is on set exhibit but obviously that is a clerical error, as well as the fact that the doctor wrote the date of the last examination as February 25, 1987, but contradicts claimant's exhibit 8, which shows the chronological order of claimant's visits to the doctor and the 1988 date is in fact correct. Claimant's exhibit 13 is a March 21, 1989 letter which was written by Dr. Carlstrom. He opined claimant had a 3 to 4 percent body as a whole impairment and related that to his May 4, 1988 injury. The doctor emphasized he didn't think claimant's cervical spine injury in 1987 had anything to do with his current problems. He supported this conclusion by the fact that claimant had gone back to work and was working full time after the 1987 injury and was experiencing this pain after his May 1988 injury. As of March 1989, claimant had not worked since September of 1988. As shown earlier herein, in 1990 the doctor later opined a 10 percent permanent impairment to claimant's body as a whole. Page 7 The undersigned might note that the parties are disputing an alleged healing period. Defendants contend that claimant reached maximum improvement on March 16, 1989, and began paying permanent partial disability benefits on March 17, 1989. Claimant's exhibit 18 reflects that claimant obviously went back to work but he was having trouble driving a truck with long turnaround times which appears to have been estimated at two hours and the doctor suggested that it would help if he could make shorter runs by driving the concrete truck which Dr. Fellows indicated was claimant's normal job before his accident. In September of 1989, Dr. Carlstrom then indicated claimant could perform the duties outlined in his job description of an aggregate tractor-trailer and Ready Mix truck. (Cl. Ex. 16) Claimant's exhibit 18, which has previously been referred to, is a February 5, 1990 report referring to the claimant's surgery involving carpal tunnel and acrimomioplasty release of the coracoacrimonial ligament of the right shoulder. Claimant' exhibit 20 is an August 9, 1990 letter of Dr. Carlstrom in which he said claimant reached maximum benefits of healing and gave claimant a release to return to the Ready Mix driving job per his request. The doctor thought he would tolerate it poorly but thought he should give it a try. No restrictions were placed on claimant because the doctor suspected that he would not be taken back with restrictions. The undersigned might note that the doctor's comment concerning that is correct and it is further obvious from the testimony that defendant employer would not have taken claimant back if there was any restrictions whatsoever. It is obvious this reflects claimant's motivation as he wanted to get back to work. A September 26, 1990 letter of Dr. Carlstrom indicates that claimant probably reached maximum benefits from his injury in May 1988. The undersigned believes that the August 9, 1990 letter actually ended the healing period regarding this carpal tunnel and shoulder surgery (Cl. Ex. 20) It appears to the undersigned that even though claimant was continuing to have problems, this was the effect of his permanent impairment and injury and claimant in fact had reached maximum healing benefits. The doctor in September then put a 25 to 30 pound restriction on claimant and opined claimant had a 10 percent permanent impairment to the body as a whole. The medical is confusing to the extent that it had Dr. Carlstrom opining claimant reached maximum healing even though it is obvious there seems to be some pressure on him to have claimant get back to work and then we have the August 20, 1990 letter of Joe F. Fellows, M.D., in which he indicated claimant had not reached maximum medical improvement after his rotator cuff exploration and decompression of the shoulder as well as decompression of Page 8 claimant's hand. It appears he hadn't seen claimant for some time and was writing this letter to the defendants' rehabilitation company. Claimant's exhibit 23 is a March 7, 1991 letter from David J. Boarini, M.D., in which the doctor indicates that claimant has been released to work with no specific restrictions. It is obvious it is this letter that claimant is relying upon to support his contention that claimant's healing period is August 18, 1990 through March 5, 1991. John H. Kelley, M.D., issued a report on April 16, 1992, in which he opined claimant had a body as a whole cervical injury of 4 percent and right upper extremity 8 percent. On the combination chart it comes to a 15 percent permanent impairment to claimant's body as a whole. (Cl. Exs. 25, 26) Dr. Kelley then issued a June 9, 1992 report pursuant to claimant's attorney's request in which he indicated that the May 4, 1988 injury was substantially an aggravation to the cervical spine resulting in an additional 4 percent permanent partial impairment to claimant's body as a whole. He indicated this was in agreement with Dr. Carlstrom's opinion. The doctor went on further to indicate that in his opinion the May 4 injury was not the substantial cause of claimant's bilateral carpal tunnel syndrome as he felt this was the result of a repetitive motion in his occupation. It would seem to the undersigned that the doctor is indicating claimant had a separate carpal tunnel syndrome injury that was work connected but had nothing to do with May 1988. It is undisputed that claimant had surgery for his carpal tunnel which it appears when taking the record as a whole that this involves the hands and shoulders as far as an operative procedure done by Dr. Fellows on February 5, 1990. Dr. Fellows does not address this particular point but it appears this surgery was done to correct a work injury and whether claimant should bring a separate action or combine this as a whole in light of the fact that the shoulder and the upper extremity problems came together in some finality at the time they were trying to solve claimant's neck injuries resulting from his May 4, 1988 injury may be a technical distinction. The undersigned believes there is substantial evidence to show that there was materially and substantial aggravation to claimant's shoulders and hand (upper extremities) resulting from claimant's May 4, 1988 injury and considers everything as a whole and not separate injuries. Defendants' first 21 pages of exhibits entitled "Summary of Medical Records For Robert Gragg" are identical to claimant's exhibit 1, pages 1 through 21. The undersigned is not sure why there is that duplication. Defendants' exhibits 1 and 2 involve the waiver on account of physical defect that has been previously addressed and ruled upon by the undersigned. Originally, an objection to that was sustained, but after testimony was submitted that exhibit was then allowed in the evidence for purpose of any reapportionment of disability and not as the Page 9 effect of a waiver of physical defect. Pages 6 and 7 of defendants' exhibit A are the job descriptions that describe the job claimant is now doing. Actually, claimant is doing the Ready Mix truck job but the undersigned understands that the other job may be involved at times, also. They are somewhat similar in some respect but it is obvious the Ready Mix truck job is much more intense and physical. Pages 15 through 21 of defendants' exhibit B are the records relating to the evaluation of claimant by Peter Wirtz, M.D., in which there was one visit and then one follow-up visit. One might note that the doctor indicates claimant's Ready Mix truck driver job in which he has to lift approximately 50 pounds may be in the extremes of claimant's ability with the right shoulder. The undersigned might note that in the job description, which the doctor was suppose to have but it appears he didn't have, there was lifting up to 100 pounds. It would seem that claimant's desire to work and motivation enables him to perform this job even though there may be a question as to whether he should be doing it. It it also apparent from the evidence and testimony in this case that this employer is doing its best to work with this claimant because of claimant's work ethics and this employer's knowledge of the work this claimant does and his willingness to put forth additional effort and work all the overtime the employer may have. This, of course, helps the employer from hiring additional people who may not be needed all the time so it is a benefit to the employer, also. Defendants' exhibit B, page 28, is Dr. Boarini's March 7, 1991 letter, which is identical to claimant's exhibit 23. As indicated before, this is apparently the letter claimant is relying upon to indicate claimant reached maximum healing. Defendants' exhibit B, page 68, is a letter from Dr. Haag, Dated February 17, 1984, in which he wrote that he considered claimant to be totally (and most likely permanently) disabled from his work as a truck driver. Although the undersigned is not sure of the nature of the truck driving he is talking about in that there is over-the-road, which is more intense than the other, it is interesting to note that this claimant has been very resilient and very motivated and has come back obviously far better than the medical profession thought. This is also evident from the December 1987 injury in which he bounced back within two months when he indicated it might be two years. The undersigned attributes this to claimant's work ethics and motivation as helping him to get back on his feel far earlier than anticipated. Claimant's exhibit C is an approval of settlement on certain injuries claimant had and involves a workers' compensation settlement. It appears the big dispute in this case is claimant's Page 10 problems with his upper extremities which resulted in carpal tunnel release and shoulder surgery and also whether claimant's neck problems are solely or mostly related to claimant's prior injuries or accidents prior to May 4, 1988. The undersigned might note that there is testimony and evidence as to whether the injury was May 3 or 4 but the undersigned will pick May 4 since that was stated in the petition and the first report of injury. Of course, in this decision it makes no difference. The undersigned finds that the greater weight of evidence shows that claimant did incur additional and permanent impairment to his cervical area. Claimant had a severe injury in December of 1987 and the evidence shows he bounced back surprisingly and was returning to work in two months even though it appeared possibly it would be two years before he would recover from that. The undersigned finds claimant is very motivated and wants to work and is not desirous of sitting around collecting compensation payments. Claimant was back to work doing his job and it appears no prior injury was not affecting him in doing his work. The undersigned finds that any preexisting injury to the cervical area was substantially and materially aggravated, lighted up and heightened by this May 4, 1988 injury. The undersigned finds that any injury prior to 1987 likewise did not result in any of claimant's current problems, disability or impairment. Defendants agree there is some healing period or temporary total disability to the claimant herein but contend at most claimant's healing periods were September 18, 1988 through March 16, 1989, and October 28, 1989 through August 18, 1990. Claimant contends that his healing period is August 18, 1990 through March 5, 1991. The evidence is clear that claimant worked after his injury on May 4, 1988 up to and not including September 17, 1988. The undersigned therefore finds that the two healing periods referred to above set forth by defendants are in fact healing periods which claimant is entitled to healing period benefits. As to the period of August 18, 1990 through March 5, 1991, this has to do with the disputed injury concerning claimant's carpal tunnel and shoulder surgery. There is no question claimant was having prior problems with his shoulders and carpal tunnel and had been diagnosed as having carpal tunnel syndrome a considerable time prior to his May 4, 1988 injury. The fact is it was not preventing him from working and he was working with it. When claimant had his May 1988 injury, it would appear that claimant's carpal tunnel problems were as bad or possibly worse and that he ended up having the carpal tunnel surgery when the doctor did an exploratory shoulder surgery to see if there was a rotator cuff tear. The evidence seemed to indicate that this was a cumulative type repetitive injury and not from any specific incident. It also seems undisputed that the carpal tunnel was the result of claimant's repetitive type of work. Page 11 The undersigned has two alternatives. One alternative would be to find that there was a cumulative injury and pick a date when claimant had surgery which was in February of 1990 as a new injury date and order a new file number and dispose of that in this particular case. The other alternative would be picking the May 4, 1988 date. For the purpose of this decision and the ultimate result of any benefits being awarded, it would make no difference which date the undersigned picks. The undersigned is picking the May 4, 1988 date as it seems like this began the ultimate events that led to claimant's carpal tunnel surgery and shoulder surgery. The undersigned finds that on the May 1988 date, the claimant also incurred a cumulative carpal tunnel injury and shoulder injuries and impairments and that the May 1988 injury materially and substantially aggravated, lighted up and heightened claimant's preexisting shoulder and carpal tunnel problems. The undersigned further finds that as a result of claimant's surgery to his upper extremities and shoulder, claimant incurred a healing period beginning February 5, 1990, when he had his surgery, through August 9, 1990. (Cl. Ex. 20) The undersigned realizes there could be several different healing periods in connection with this particular period that the undersigned could pick. He also realizes that Dr. Carlstrom later on was not certain that he had picked the correct date. There are other doctors who related to other dates that would give the claimant additional healing period. The undersigned finds this is the most logical date under all the circumstances and the facts of this case and that Dr. Carlstrom had a better handle in this regard due to more contacts with the claimant. Although claimant continued to have problems it appears that because of claimant's condition and impairment that he would continue to have these problems but that did not mean he was necessarily still healing. The undersigned finds that this healing period was causally connected to claimant's May 4, 1988 injury. As to the extent of claimant's current disability, the undersigned finds that claimant is working and has not lost any reduction in wages as to the hourly wage he is now receiving versus what he was receiving at the time of his injury. Claimant is working full time and is taking advantage of all overtime and so far is able to perform the work. Claimant has no current loss of income and the employer is accommodating claimant. In fact, it is obvious from the employer's testimony that this claimant is a very good worker, highly motivated and will do all the overtime he can. It is also apparent from the evidence that claimant is working in pain and most likely when he is doing the concrete driving job, which is the job he hopes to do the rest of his career, he is lifting beyond his recommended capacity. The undersigned understands that when taking the evidence as a whole, the claimant may not actually be under any restrictions and yet it is also obvious that the doctors realize he should be but that he wouldn't have a job because of the employer's position if they set any restrictions. The employer made that clear in his testimony and the records also reflect that. In fact, claimant had requested Page 12 restrictions be removed so he could go back to work. Although the doctors felt he may do poorly in his work or have difficulty, they felt it was worth a try. It appears claimant has surpassed their expectations but it is obvious claimant is under risk doing the work he is currently doing with the medical conditions that exist. Claimant should not be faulted for this. It is also obvious to the undersigned that another employer would think twice before he would hire this claimant to do the work claimant is doing. One can easily conclude that if claimant went out to search for a job that involved the driving, lifting, and the things that are currently connected to the job, that once his medical condition would be found out or determined, claimant would not be hired. The employer should be congratulated for accommodating claimant but, likewise, that is substantially reducing the defendants' liability and reducing the extent of claimant's industrial disability . Claimant is limited to the type of truck driving he does. It appears that in order to get along he must be in the type of driving in which the hauling is short, the driving time is short, the miles driven per day are minimum, the time one sits and stands should be limited and likewise what claimant lifts should be limited. Claimant, from the record and evidence, will be foreclosed from over-the-road driving, said over-the-road driving being considered driving 300,000 to 400,000 miles a year and driving for long periods of time, requiring lengthy sitting. The undersigned finds that claimant's inability to do this type of over-the-road is not a result of claimant's May 4, 1988 injury, but is the result of claimant's prior injuries. The undersigned therefore is not considering any loss of earning capacity because claimant is unable to do over-the-road driving as described above. The undersigned does find that claimant is restricted to other types of driving that can be more strenuous than the driving he is doing now plus the fact the driving claimant is doing now would not be tolerated by another employer having knowledge of claimant's medical situation. Claimant has a loss of earning capacity in that he has lost a part of his ability to perform work he was able to do prior to his May 4, 1988 injury. Likewise, he is currently at the mercy of his present employer but in today's age of layoffs, companies going out of business, companies being purchased by others, claimant cannot rely on review-reopening for an indefinite period of time in the future because of the law. Claimant is now 59, and that age alone limits claimant's future in the work place. Taking into consideration claimant's prior work and medical history; his present condition; his preexisting injuries; his work experience after his injury; his rehabilitation; his age; education; wages prior to and after his injury; the location and severity of his injury; the extent of his healing periods; his motivation; functional impairment; and, employer accommodating claimant, the undersigned finds that claimant has a 25 percent industrial Page 13 disability. In light of the above ruling, the undersigned finds that as to the 85.39 issue, defendants shall pay claimant's medical evaluation by Dr. Kelley in the amount of $975. It appears that Dr. Kelley did a thorough evaluation and spent considerable time. As to the 85.27 medical benefits issue, in light of the above ruling and finding that claimant's carpal tunnel and surgery is causally connected to claimant's injury, defendants shall pay the Iowa Methodist Hospital bill and Dr. Fellows' bill which the undersigned understands amounts to $1,485. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different Page 14 than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially 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 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 Page 15 N.W.2d 299 (1961). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. Iowa Code section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). It is further concluded that: Claimant incurred an injury to his cervical area, shoulders, upper extremities resulting in carpal tunnel surgery and shoulder surgery, all of which was caused by claimant's May 4, 1988 work injury. Claimant incurred a permanent impairment and a 25 percent industrial disability as a result of his May 4, 1988 work injury. Claimant had preexisting injuries that were substantially and materially aggravated, lighted up and heightened by his May 4, 1988 work injury. Claimant incurred healing periods of September 18, 1988 through March 16, 1989, October 28, 1989 through August 18, 1990, and February 5, 1990 through August 9, 1990, that are causally connected to his May 4, 1988 work injury. Defendants are responsible for payment of Dr. Kelley's $975 medical bill that was incurred as a result of an 85.39 Page 16 medical examination and which exam was the result of claimant's May 4, 1988 injury. Defendants are responsible for the payment of the $1,485 Iowa Methodist Hospital and Dr. Fellows' bill, which bills were incurred as a result of the carpal tunnel and shoulder surgeries which was the result of claimant's May 4, 1988 work injury. Claimant is a highly motivated individual. ORDER THEREFORE, it is ordered: That defendant shall pay unto claimant healing period benefits at the stipulated rate of two hundred eighy-one and 72/100 dollars ($281.72) for the period of September 18, 1988 through March 16, 1989 (25.714 weeks); October 28, 1989 through August 18, 1990 (42.143 weeks); and, February 5, 1990 through August 9, 1990 (26.571 weeks), the total healing period being ninety-four point four two eight (94.428) weeks. That defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of two hundred eighty-one and 72/100 dollars ($281.72). Said benefits shall initially begin after claimant's first healing period and then be interrupted during the second healing period and then continued again until the third healing period and after third said interruption period, any additional permanent partial disability benefits shall then begin August 10, 1990. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that defendants previously paid one hundred eighteen (118) weeks of benefits. That defendants shall pay to the doctor or reimburse claimant, if he has already paid, the nine hundred seventy dollar ($970) bill of Dr. Kelly. That defendants shall pay or reimburse claimant, if claimant has already paid, the Iowa Methodist Hospital bill and the bill of Dr. Fellows which total one thousand four hundred eighty-five dollars ($1,485). That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Page 17 Signed and filed this ____ day of May, 1994. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Arthur C Hedberg Attorney at Law 840 Fifth Ave Des Moines IA 50309 Ms Iris J Post Attorney at Law 222 Grand Ave P O Box 10434 Des Moines IA 50306 5-1802; 5-2206; 5-1803 5-1108; 5-2503 Filed May 18, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ ROBERT GRAGG, : : Claimant, : : vs. : : File No. 898727 CROWN READY MIX, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND, : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ 5-1802; 5-2206 Found claimant's preexisting injuries were substantially and materially aggravated, lighted up and heightened by his May 4, 1988 work injury. 5-1803; 5-1108 Claimant's work injury caused claimant to incur three healing periods, a shoulder and carpal tunnel surgery and a 25% industrial disability. 5-2503 Found defendants were responsible for claimant's medical bills of $2,460. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHRISTINA L. SEPICH, : : Claimant, : : vs. : : File No. 898729 CASEY'S GENERAL STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Christina L. Sepich against Casey's General Stores, employer, and United States Fidelity and Guaranty Company, insurance carrier. Claimant sustained an compensable injury to her back on August 20, 1988 and seeks compensation for an industrial disability. The case was heard at Des Moines, Iowa on June 19, 1991 and was considered fully submitted upon conclusion of the hearing. Leave was granted so that the parties could file briefs. The record in this proceeding consists of the testimony of the claimant; joint exhibits 1-8; and, defendants' exhibits A-D. issue Pursuant to the prehearing report submitted and approved at the hearing, the sole issue to be determined in this case is whether claimant's work-related injury caused permanent industrial disability. Page 2 findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds the following facts: On August 20, 1988, claimant sustained an injury which arose out of and in the course of her employment when she lifted a box of cheese which weighed between 45-50 pounds. As claimant started to lift the cheese, she dropped to the ground due to the pain in her lower back and left leg. Claimant continued to work, as she thought the pain would subside. However, her symptoms became worse, and claimant visited John Zittergruen, D.O., on September 1, 1988. Her complaints consisted of severe low back pain with radiation into the left leg. Upon examination, she had marked tenderness to palpation over the lower lumbar region on the left side. Straight leg raising tests were positive, and the range of motion of the lumbar spine was restricted secondary to pain and spasms. X-rays were taken of the lumbar spine, and showed some disc space narrowing, consistent with a possible herniated disc. Claimant was instructed to rest at home, and was given Ibuprofen. She was referred to Marshall Flapan, M.D., for a September 13, 1988 appointment to rule out acute herniated intervertebral disc. (Joint Exhibit 1, page 62). Prior to the appointment with Dr. Flapan, claimant sought treatment from the emergency room at Iowa Lutheran Hospital on September 10, 1988. The examination was consisted with a herniated disc. (Jt. Ex. 1, p. 73). Claimant was examined by Dr. Flapan on September 13, 1988, and his assessment was that of an acute herniated intervertebral disc with left sciatica. She remained on Motrin and Flexril, and was instructed to rest, and was to be re-evaluated in one week. (Jt. Ex. 1, p. 59). Claimant returned to Dr. Flapan on September 23, 1988, and although she displayed some degree of improvement, straight leg raising tests still produced positive results and she showed signs of weakness of the left ankle and great toe. She was kept off of work for ten days, and returned to Dr. Flapan on September 30, 1988. Her symptoms were the same as on prior visits, and an MRI scan was ordered. (Jt. Ex. 1, p. 58). On October 13, 1988, the results of the MRI showed a large herniated disc on the left side at the L4-5 level of the lumbar spine. Dr. Flapan recommended surgery, but claimant underwent an epidural steroid injection instead. Claimant felt some relief from the injection, but continued to have good and bad days. On November 21, 1988, Dr. Flapan noted that a second epidural steroid injection afforded her no relief, and he recommended an lumbar laminectomy and diskectomy at the L4-5 interspace. Claimant requested a second opinion, and received the same from Thomas Carlstrom, M.D., on December 8, 1988. He reviewed the CAT scan results, and concurred with the diagnosis of a large Page 3 herniated disc on the left in the lumbar region. Upon examination, Dr. Carlstrom noted a positive result on the straight raising exam, and decided that the claimant was experiencing radicular symptoms on the left secondary to a herniated disk. He recommended a return to work on a part time basis (four hours per day) and activities that restricted lifting of less than 15 pounds. If claimant did not respond favorably to this trial period, surgical intervention would be warranted. (Jt. Ex. 1, pp. 17, 34). Claimant returned to Dr. Carlstrom on January 23, 1989, with continued pain. On examination, she displayed positive results on the straight leg raising exam, and Dr. Carlstrom diagnosed radicular symptoms. He recommended a lumbar laminectomy, although claimant requested physical therapy. (Jt. Ex. 1, p. 15). Claimant was placed on a work hardening program, which she attended from January 1, 1989 through February 23, 1989. Overall, claimant was a motivated participant in the program, and showed improvement with respect to her physical condition. Upon her discharge from the program, she was placed in a light work category based on the results of lifting, carrying, pushing, pulling and reaching tests. In this category, claimant was to lift no more than 20 pounds on an occasional basis, and up to ten pounds on a frequent basis. However, the work hardening consultant, Vicki Torvik, felt claimant could lift 40 pounds on an occasional basis. She also noted that light duty work may require continuous sitting, standing and consistent use of hand or foot controls. (Jt. Ex. 1, pp. 41-51). It should be noted that the employer provided the services of a vocational rehabilitation consultant, Becky Parkins, to assist claimant in her employment pursuits. She worked with claimant from November of 1988 through February of 1990, when Janine Lochman took control of the case and provided services until March of 1991. (Jt. Ex. 1, pp. 74-181). Numerous attempts were made to accommodate claimant and her physical condition at various stages during the initial injury through the lumbar laminectomy and subsequent rehabilitation from the same. Claimant underwent the lumbar laminectomy on March 9, 1990 at the Iowa Methodist Medical Center. Dr. Carlstrom performed the surgery. (Jt. Ex. 1, pp. 67-72). Page 4 analysis and conclusions of law The sole issue to be determined in the case is the extent of claimant's industrial disability, if any, as a result of her work-related injury sustained on August 20, 1988. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Functional impairment is an element to be considered in determining industrial disability but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the Page 5 finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant, at the time of her injury, was 21 years old and a high school graduate. Her work experience is limited, and consists of jobs as food preparer; dish washer; cashier; typist; and, over-the-counter customer service. Some of the positions required claimant to lift some objects, but the job she held with Casey's General Stores required claimant to perform the most extensive lifting duties. Claimant was hired by Casey's in May of 1985. Her first position was as a cashier, which required her to run the cash register; wait on customers; sack groceries; various cleaning details; fill bags with ice; and, restock the shelves. Over the next three years, claimant worked her way up the Casey's ladder, with regular promotions and pay raises. At the time of her injury, claimant was the assistant manager, and was paid $4.90 per hour. This is compared to her starting pay of $3.75 per hour. As noted earlier, claimant is a high school graduate. Since the accident, she has embarked on several college courses, including typing and secretarial/management skills. Claimant's potential for employment must be viewed in light of both her work history and qualifications, and physical status. Claimant's work experience with Casey's has included positions as a donut lady and pizza dough maker, but when claimant attempted this work, her physical symptoms would become worse. In fact, it was after several returns to work which exacerbated claimant's symptoms that she underwent surgery. Claimant appeared to be cooperative with the vocational rehabilitation efforts made on her behalf, and although there is some evidence in the record which indicates she would miss work on occasions after she was released to return to work, her illnesses are documented in the medical records supplied. Claimant has been restricted to light duty activity, with a medical restriction of no lifting of more than 20 Page 6 pounds, and she is to avoid sitting or standing greater than one hour at the time. She is to avoid twisting or forward bending. Dr. Carlstrom has given two functional impairment ratings. The first one, dated December 7, 1989 (pre-laminectomy) states the following: I think that she should be considered to have suffered a permanent impairment of about 5% of the body as a whole. Further employment should continue to stress avoidance of heavy lifting, prolonged sitting or standing, and forward bending, as I have suggested in the past. (Jt. Ex. 1, p. 8). The second postoperative impairment rating dated October 4, 1990 indicates the following: I think future activity should be avoidance of lifting with a maximum of about 20 pounds and should avoid sitting or standing greater than an hour at a time. She should also avoid twisting or forward bending. I think she has sustained a permanent partial impairment of about 9% of the body as a whole, due to her postoperative status, because of this last episode, and that should be considered separate and distinct from previous impairments. (Jt. Ex. 1, p. 1). Although Casey's has tried to re-employ her throughout this ordeal, none of the positions offered to her accommodate claimant's work restrictions and have resulted in a successful return. Claimant is currently working as cook for a bar and grill in Des Moines, Iowa. She earns $4.00 per hour, and the position has accommodated her restrictions. Claimant's actual loss of earnings is 19 percent. Actual earnings are indicative of her earning capacity. Intellectually and emotionally, claimant appeared average. She is young, and motivated, and the potential for rehabilitation is good. However, it may be difficult to find a position which will accommodate her physical status, although her interest in secretarial and support services should allow her to pursue employment opportunities which will not require the physical stresses incurred at her job at Casey's. After consideration of all the factors that comprise an industrial disability, it is found that claimant has sustained an industrial disability or loss of earning capacity in the amount of 25 percent. order THEREFORE, it is ordered: That defendants pay claimant permanent partial Page 7 disability benefits for one hundred twenty-five (125) weeks at the rate of one hundred forty-three and 47/100 dollars ($143.47) commencing on October 9, 1990. That defendants pay accrued amounts in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants pay the costs of this proceeding, pursuant to rule 343 IAC 4.33. That defendants file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of August, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Channing L Dutton Attorney at Law West Towers Office Complex 1200 35th Street, Ste 500 West Des Moines Iowa 50265 Ms Iris J Post Attorney at Law 2222 Grand Avenue PO Box 10434 Des Moines Iowa 50306 5-1800 Filed August 7, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : CHRISTINA L. SEPICH, : : Claimant, : : vs. : : File No. 898729 CASEY'S GENERAL STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Twenty-one year old, high school graduate underwent a lumbar laminectomy, and was given a 14 percent functional impairment rating. She possessed some secretarial skills, but had severe restrictions of no repetitive lifting of more than 10 pounds, with no forward bending or twisting. Claimant awarded 25 percent industrial disability. before the iowa industrial commissioner ____________________________________________________________ : RON BAILEY, : : Claimant, : : vs. : : File No. 898754 L & L BUILDERS, : : A P P E A L Employer, : : D E C I S I O N and : : GENERAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 27, 1991, is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Joe Cosgrove Attorney at Law 400 Frances Building Sioux City, Iowa 51101 Mr. Frank T. Harrison Attorney at Law Terrace Center, Ste. 111 2700 Grand Avenue Des Moines, Iowa 50312 9998 Filed October 17, 1991 BYRON K. ORTON PJL before the iowa industrial commissioner ____________________________________________________________ : RON BAILEY, : : Claimant, : : vs. : : File No. 898754 L & L BUILDERS, : : A P P E A L Employer, : : D E C I S I O N and : : GENERAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 27, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RON BAILEY, : : Claimant, : : vs. : : File No. 898754 L & L BUILDERS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GENERAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ron Bailey, claimant, against L & L Builders, employer, and General Casualty Companies, insurance carrier, identified as defendants. The case was brought on for hearing on November 29, 1990 at Sioux City, Iowa. Although claimant's petition reflected a proceeding in review-reopening, the undersigned finds this characterization as incorrect. Review-reopenings are appropriate in cases where an award of benefits has been made through adjudication, or where an agreement for settlement has been entered. See, Iowa Code section 86.14 (1989). No evidence was submitted to show that either of the requirements have been met, therefore, the proceeding is corrected to establish an arbitration proceeding. The evidence in the case consists of testimony from the claimant; and, Jim Weiss; joint exhibit 1; defendants' exhibits A and B. issue The sole issue to be determined is the extent of claimant's industrial disability. findings of fact The undersigned deputy, having heard all the testimony and having reviewed all the evidence, finds the following facts: Claimant, at the time of the hearing, was 38 years old. He is a Sioux City, Iowa native and graduated from Central High School in 1971. Claimant's work history has been varied over the past 20 years, but has been primarily in the field of laborer-type positions. Page 2 In 1988, he began to work for L & L Builders, and was injured on the job on September 29, 1988. Claimant initially received treatment on October 3, 1988 from J. L. Wiedemeier, M.D., who referred him to Q. J. Durward, M.D. Claimant did not keep an October 6, 1988 appointment with Dr. Durward. (Jt. Ex. 1, p. 2 [D. M. Youngblade]). Apparently, claimant sought treatment on October 4, 1988 from D. M. Youngblade, M.D. X-rays taken at Dr. Youngblade's office were normal. Conservative treatment was recommended, and later a referral to an orthopaedic specialist was made. (Jt. Ex. 1, p. 1 [D. M. Youngblade]). Claimant's x-rays of the lumbar spine taken October 5, 1988 reveal degenerative disc disease at L5-S1 with partial sacralization of L5-S1 vertebrae body (Jt. Ex. 1, p. 1). A myelogram and an MRI were normal. (Jt. Ex. 1, p. 1, [Marian Health Center]). Claimant came under the care of Q. J. Durward, M.D., on October 14, 1988. On November 4, 1988, claimant underwent a myelogram and an MRI at Marian Health Center at the direction of Dr. Durward (Jt. Ex. 1, p. 1 [Marian Health Center]). Both test results were normal, and Dr. Durward prescribed epidural flood with steroid injections and isokinetic rehabilitation. Claimant was released to return to work with a lifting restriction of 25 lbs. (Jt. Ex. 1, p. 1 [Marian Health Center]). Dr. Durward also prescribed physical therapy, heat, ultrasound and Dolobid. Claimant began physical therapy on November 29, 1988. Brian W. Nelson, M.D., made the following physical assessment: Low back pain and bilateral leg pain with numbness. The exact etiology is uncertain in this patient. He had a definite loss of his right ankle jerk on exam today, but that could be an old problem from his previous surgery. There were no signs today of an acute radiculopathy and it certainly is possible that most of his leg symptoms are somatically referred. .... 1) I agree with Dr. Durward that this patient does not appear to have a surgical lesion. Because he is unable to work I recommend that he be isokinetically tested and then isokinetically rehab'd with the goal being to increase the strength and endurance of his trunk musculature. 2) I'd like the patient to be seen 3 X a week. 3) Patient should be considered temporarily totally disabled from work. Page 3 4) I will follow the patient up again in 3 weeks for a recheck. 5) Prognosis for improvement is good, but prognosis for returning to such a heavy and demanding type job is guarded at this time. Will have to wait and see how the patient does. 6) There is a possibility this patient may have a permanent impairment. The patient was isokinetically tested and was shown to have significant deficits in the lumbar extensors at the higher speeds which correlates with an endurance problem. At the lower speeds his values were lower than expected for a male of his size and work history. He appears to be a good candidate for rehab. Claimant continued therapy at the Back Rehabilitation Clinic through April 5, 1989, when he was evaluated by Dr. Nelson. Dr. Nelson's evaluation states, in pertinent part: Ron returns for a recheck. His most recent objective testing has shown him to have plateaued. His plateau level is less than normal values but it did show good consistent efforts without sign of symptom exaggeration. Subjectively he is about the same. He seems to do pretty well but when he tries to increase his activity and do repetitive heavy lifting he does have problems. Because of this I think it probably makes more sense for him to look at some other occupation other than construction work. Even the lighter construction work might put him at higher risk given the fact that he has been unable to reach normal values. .... EXAMINATION: Showed him to have a full range of motion of the lumbar spine with some tenderness over the paraspinous muscles. Neurologically he was intact. Straight leg raising was negative bilaterally. ASSESSMENT: Patient appears to have maximized his gains from rehab and I think he has now reached maximum medical improvement. Based on the results of his diagnostic testing, his computerized strength testing and his examination, I would rate him as having a 5% permanent partial disability of the body as a whole. RECOMMENDATION: 1. Discontinue formal physical therapy and transition to a home program. 2. I have advised the patient to continue with his home lifeline program permanently. 3. Patient was cautioned again about the Page 4 importance of using proper lifting mechanics. 4. I believe the patient is certainly employable but he should avoid heavy manual labor. He should not be involved in a job which requires repetitive stooping and bending or repetitive lifting. On an occasional basis I think he can lift up to 75 pounds without much difficulty. It would also be important for him to be able to not be required to stand or sit without some relief for periods of longer than 4 hours. Within these restrictions I think he is certainly capable of working and he seems eager to do so. I will follow him up prn. (Claimant's Exhibit 1, Page 16) Claimant received a second opinion from Quentin J. Durward, M.D., on September 7, 1989: Ron Bailey returns to the Outpatient Clinic today, now more than 6 months since I last saw him. In the interim, he has undergone a long period of isokinetic rehabilitation. This actually did get rid of his leg pain. He still, intermittently, has left low back pain. This is particularly brought on when he has to lift. He plays in a band on the weekend, and even lifting the band equipment gives him recurrent low back pain. Dr. Nelson had released him for 75 lbs. of lifting restriction, but the patient feels that this will just leave him with severe back pain, necessitating him stopping work again. Exam today shows a normal appearing back. He has some mild left lower lumbar tenderness. He forward flexed to 90 degrees with excellent curve reversal. He extended well, although had some left low back pain. Lateral flexion to the right exacerbated left low back pain, but not to the left. Straight leg raising was unrestricted. His power exam was normal. His sensory exam was normal. His reflex exam shows trace symmetric knee reflexes, 1 + left ankle reflect, absent right ankle reflex. I did review the patient's myelogram. It is absolutely normal. I don't believe he has a surgical lesion here. I think he has a chronic lumbar sprain syndrome, probably related to facet joint injury. My recommendation would be to restrict him from lifting more than 30 lbs., and I advised him to avoid bending and lifting. I think he could undertake a job with these restrictions. I think his back would not be damaged by lifting up to 75 lbs., but it is clear from his history that his pain will be such that he would have to stop work. Page 5 (Cl. Ex. 1, p. 2) conclusions of law The sole issue presented for resolution is whether claimant is entitled to benefits for an industrial disability. The Iowa Supreme Court in Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983) explained the two methods for evaluating a disability--functional and industrial: Functional disability is assessed solely by determining the impairment of the body function of the employee; industrial disability is gauged by determining the loss to the employee's earning capacity. Functional disability is limited to the loss of physiological capacity of the body or body part. Industrial disability is not bound to the organ or body incapacity, but measures the extent to which the injury impairs the employee in the ability to earn wages.... ...A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Claimant has sustained an injury to his lower back, and his disability will be evaluated industrially. Accordingly, claimant's physical limitations, in addition to his overall background, will be evaluated in order to determine his industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a Page 6 job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant's medical condition prior to the injury is unremarkable, although he underwent an L4-L5 fusion in 1984. From 1984 to September 29, 1988, claimant did not encounter any physical problems that prevented him from performing an array of job duties, including light duty and heavy manual employment. After the September 1988 accident, claimant has had persistent back pain and, as a result, can no longer lift in excess of 75 pounds. Claimant received a functional impairment rating of five percent. And, one physician restricted claimant from lifting 30 pounds and to avoid bending and lifting, although these medical restrictions do not appear to be supported by the objective medical findings. Claimant's injury was to the low back, an injury which has affected his ability to find work in the types of jobs he has held prior to the injury. He was in a healing period stage for approximately 7 months. Prior work history includes carpenter/construction worker; sales; delivery person; musician; maintenance; and, automobile painter's helper. Most, if not all of these positions require lifting and bending. Claimant's attempts at finding suitable employment have been marginal, and his potential for rehabilitation is good. On an intellectual, emotional and physical level, claimant appeared to possess the necessary attributes to become employed at a job which adheres to his restrictions. His main interest is in music, and he has continually pursued this avenue throughout his adulthood. Claimant expressed his desire to gain employment in the record industry, but the Sioux City area is certainly limited in this type of occupational opportunity. Page 7 At the time of claimant's injury, he was earning $6.50 an hour. In the past, his earnings have ranged from minimum wage to $10 an hour. He is currently working in light construction, and earns $300 per month. At the time of the injury, claimant was 35 years old; at the time of hearing, he was 38 years of age. He is a high school graduate. Claimant's motivation to return to work is questionable, an assessment which is borne out by his attitude toward the vocational rehabilitationist assigned by the insurance carrier to work with him. The record reflects claimant displayed an uncooperative attitude toward efforts to find employment with the vocational rehabilitationist's help. A low functional impairment rating has been given, and lifting and activity restrictions were imposed by both Dr. Nelson and Dr. Durward. Objective test results show claimant has sustained some physical limitations. Claimant is limited to a certain degree in the type of employment he can undertake. In evaluating all of the factors listed above, the undersigned finds claimant has sustained an industrial disability of ten percent. Page 8 order THEREFORE, it is ordered: That defendants shall pay unto claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of one hundred seventy-three and 81/100 dollars ($173.81) per week commencing April 5, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Joe Cosgrove Attorney at Law 400 Frances Building Sioux City Iowa 51101 Mr Frank T. Harrison Attorney at Law Terrace Center Ste 111 2700 Grand Avenue Des Moines Iowa 50312 1800 Filed February 27, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : RON BAILEY, : : Claimant, : : vs. : : File No. 898754 L & L BUILDERS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GENERAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1800 The sole issue to be determined was the extent of claimant's industrial disability. Claimant was 35 years old at the time of the injury. He sustained a five percent functional impairment to his low back. Medical restrictions included no standing or sitting for more than 4 hours; no lifting of more than 75 pounds. Treating physician indicated claimant should not return to heavy construction work, which was the work claimant was performing at the time of the injury. Claimant awarded 10 percent industrial disability.