before the iowa industrial commissioner ____________________________________________________________ _____ : JACK H. EVERSOLL, : : Claimant, : : vs. : : File No. 903157 PROCESS MECHANICAL, INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : 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 21, 1992 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael H. Irvine Attorney at Law P.O. Box 2819 Cedar Rapids, Iowa 52406 Mr. Chris J. Scheldrup Attorney at Law P.O. Box 1943 Cedar Rapids, Iowa 52406 5-1803 Filed February 26, 1993 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ _____ : JACK H. EVERSOLL, : : Claimant, : : vs. : : File No. 903157 PROCESS MECHANICAL, INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 5-1803 Non-precedential, extent of disability case. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JACK H. EVERSOLL, : : Claimant, : : vs. : : File No. 903157 PROCESS MECHANICAL, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Jack H. Eversoll, against Process Mechanical, Inc. (hereinafter referred to as Process), and The Hartford, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on January 3, 1989. On January 30, 1992, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On January 3, 1989, claimant received an injury arising out of and in the course of employment with Process. 2. Claimant has been paid his entitlement to healing period benefits. 3. The injury was a cause of permanent industrial dis ability to the body as a whole. 4. Permanent partial disability benefits shall begin on 7/10/89. 5. At the time of injury, claimant's gross rate of weekly compensation was $400, he was single and he was enti tled to only one exemption. This establishes a weekly rate of compensation of $241.10, according to the industrial com missioner's published rate booklet for FY 89. Page 2 ISSUE The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to permanent disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is credible. Claimant worked for Process from November 1988 until the work injury herein. Process is a subcontractor engaged in new construction. Claimant has worked for several con tractors since 1982 in welding and fitting structural steel above ground level. Claimant at times would work over 100 feet above the ground walking on narrow I-beams. Most of claimant's past employment has been in welding jobs since learning to weld at a juvenile training facility when he was in his teens. Claimant's earnings varied from job to job but ranged from $10-12 per hour at the time of his injury. When he worked away from home, he would receive in addition to his regular pay a $15-25 per diem. The work injury on January 3, 1989 occurred as a result of a fall. Claimant, who has no independent recollection of this fall, stated that fellow workers observed him fall 15 feet when a safety cable, against which he was leaning, gave away. Claimant's injury primarily involved the head. He was hospitalized immediately. Claimant was unconscious for 5-6 days. His primary treating physician, James LaMorgese M.D., a neurosurgeon, diagnosed closed head injury with cerebral concussion and bilateral contusions to the temporal lobes of the brain with parenchymal hemorrhage in the left temporal lobe. After his release from the hospital, claimant's recov ery took several months. An initial symptom of memory con fusion improved but claimant today still suffers from recur rent severe headaches which Dr. LaMorgese believes is related to the work injury. Claimant also has had problems with hearing and his sense of smell since the injury but no physician causally relates these problems to the injury. Claimant admits to ear difficulties prior to the work injury. Claimant was released to return to work in July 1989 but did not actually return to work until September, 1989. The work injury of January 3, 1989, was a cause of a five percent permanent impairment to the body as a whole. Also, as a result the injury, claimant is permanently restricted by Dr. LaMorgese to working at ground level. Page 3 Even climbing ladders is prohibited. Dr. LaMorgese's views are uncontroverted in the record. Claimant had no prior serious work injuries or permanent impairment according to the medical records submitted into evidence. Dr. LaMorgese's permanency views are based upon continuing headaches after the injury and the future risk of seizure. He states that the risk of seizure now is very small but it is still greater than the average population and suffi ciently large to impose a permanent restriction against above ground work. Due to resulting permanent impairment and primarily the physician imposed work restriction, the work injury of January 3, 1989, is a cause of a 35 percent loss of earning capacity. Claimant's medical condition before the work injury was excellent and he had no functional impairments or ascertainable disabilities. Although claimant is physically able to perform his duties and the risk of seizure is slight, the restriction against working off the ground has had a significant adverse impact upon claimant's earning capacity. His higher wages in the two year period prior to the injury were largely due to his ability to work high above ground. Although he was only making $10 per hour in his job at the time of injury, claimant and a vocational rehabilitation counselor, Thomas Wagner, established that such work today pays up to $15 per hour. Although claimant has returned to work and currently is receiving $10 per hour, this is due to a special accommodation for claimant that would not be available industry wide. Claimant is probably lucky to being receiving such a wage according to Wagner. Since the injury, claimant has worked in jobs requiring him to work above ground but only because he failed to tell his employer of the restriction and assumed the risk of falling from a seizure in order to remain employed. However, as explained by claimant, there is a networking of information about jobs and employees in his industry and his ability to return to high work by conceal ing his disability has been greatly diminished. Wagner also verified that claimant at age 33 was nearing the peak of his employment career earnings. He stated that employees gener ally maximize their incomes between the ages of 45 to 55 and thereafter earnings begin to gradually fall until retire ment. The injury has flattened claimant's earnings curve. Wagner's views concerning claimant's loss of wages were not controverted by the vocational consultant retained by defendants, Barbara Laughlin. She had identified several openings available to claimant within his restrictions but did not discuss what these positions would pay. She stated that claimant's past drug and alcohol abuse problem has now adversely affected his employability due to the loss of his driver's license from three drug driving convictions after the injury. There is little question that claimant in the past has experienced and is probably continuing to experience prob lems with drug and alcohol abuse. He admitted to past addiction to cocaine in the mid-1980s and to continuing use of alcohol and marijuana. He even used marijuana in the hospital after the injury claiming it was "medicine to him." Page 4 He admits to abusing alcohol even though it aggravates his headaches. This abuse had now lead to the loss of his driver's license. Clearly he has a problem which affects his employability. However, claimant has a strong work ethic and remained employed even during his incarcerations for drunk driving. He is able to continue working without a driver's license as driving has never been a requirement of his work. Friends and relatives are willing to provide transportation for him. Obviously, if he continues to disregard criminal statutes relating to alcohol use, he may suffer a further loss of employability from long term incarceration. This however has not yet happened. Claimant remains employable and is continuing to work in his chosen vocation of welding. There is no need for vocational rehabilitation. However, apart from his drug and alcohol problems, claimant is earning approximately $5 less per hour and has significantly fewer potential employers as a direct result of his injury at work on January 3, 1989. CONCLUSIONS OF LAW Claimant must establish by a preponderance of the evi dence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disabil ity" is a loss of earning capacity resulting from the work injury. Diederich v Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restric tion on work activity may or may not result in such a loss of earning capacity. Examination of several factors deter mines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, February 28, 1985). In the case sub judice, it was found that claimant suf fered a 35 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 175 weeks of permanent partial disability benefits as a matter Page 5 of law under Iowa Code section 85.34(2)(u) which is 35 per cent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. ORDER 1. Defendants shall pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at a rate of two hundred forty-one and 10/l00 dol lars ($241.10) per week from July 10, 1989. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33 as set forth in the prehearing report. 5. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Michael H. Irvine Attorney at Law P O Box 2819 417 lst Ave SE Cedar Rapids IA 52406 Mr. Chris J. Scheldrup Attorney at Law 2720 lst Ave NE P O Box 1943 Cedar Rapids IA 52406 5-1803 Filed January 21, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : JACK H. EVERSOLL, : : Claimant, : : vs. : : File No. 903157 PROCESS MECHANICAL, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RUSSELL T. WEAVILL, Claimant, vs. File No. 903186 JOHN MORRELL & CO., A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INS, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Russell Weavill against his employer, John Morrell and Company, based upon an injury that occurred on December 22, 1988. The only issue in the case is the amount of permanent partial disability that Weavill is entitled to recover as a result of that injury. The underlying, controlling issue is whether the permanent disability is a scheduled disability under the provisions of Code section 85.34(2)(m) or a disability compensable under section 85.34(2)(u). The evidence consists of testimony from Russell T. Weavill, Charlotte Weavill and Leo Heilman. The record also contains joint exhibit 1 which contains 77 pages. FINDINGS OF FACT Having observed the appearance and demeanor of all the witnesses who appeared at the hearing and considered their testimony in light of the other evidence in the record it is found that their is no irreconcilable conflict in any of the evidence and all the witnesses are fully credible. Russell T. Weavill is a 45-year-old married man who did not do well in school. He finished the tenth grade and ceased formal education permanently at age 16 or 17. He obtained a job in a plant which bottled soda pop. Russell is a large man whose height is six feet zero inches and whose weight is 287 pounds. His weight made him ineligible for the military service. He participated in the Job Corps for approximately two years and was trained as a short-order cook. He has never worked as a cook in any capacity. Russell also completed an eight week course in driving straight trucks while in the Job Corps. Years later he completed an eight week course in semi driving at Western Iowa Technical Institute. Since leaving the Job Corps Russell's primary occupation has been packing house work. He has also worked intermittently as a truck driver. For approximately two or three years he worked building semi-trailers. Russell was injured on December 22, 1988, when a door opened unexpectedly while he was carrying bags of ice. He fell backwards landing with his right arm underneath him. He felt a sharp burning sensation in his right shoulder, neck and arm. He reported the injury and was provided with appropriate medical treatment. Diagnostic tests showed Russell's right rotator cuff to be torn. On February 6, 1989, Orthopedic Surgeon Kevin J. Liudahl, M.D., performed rotator cuff repair surgery. The surgery performed by Dr. Liudahl was not successful at resolving Russell's complaints. Eventually he came under the treatment of Orthopedic Surgeon R.H. Cofield at the Mayo Clinic in Rochester, Minnesota. After further diagnostic testing, a second surgery was performed on Russell's right shoulder. The surgical procedures consisted of right rotator cuff repair, right anterior acromioplasty and excision of the right distal clavicle (exhibit 1, pages 43, 50). The second surgery was successful at resolving the bulk of Russell's symptoms. In a report dated April 18, 1991, Dr. Cofield stated: He does have continuing work limitations. He can, with both hands, lift 15 to 20 pounds at waist level on a repetitive basis and lift 50 pounds occasionally. Using the right upper extremity, he cannot do any lifting at all above chest level and, of course, cannot do repetitive arm movements above this level either. I think it would be possible to assign a permanent physical impairment utilizing the American Medical Association Guides to the Evaluation of Permanent Physical Impairment. Mr. Weavill's disability relative to the right upper extremity would be 15 percent, a small amount of which is related to reduction in movement, and most of which is related to diminution in strength. (exhibit 1, pages 64-65) On May 28, 1991, Dr. Cofield reported that under the AMA Guides the impairment of the upper extremity is equivalent to 9 percent of the whole person (ex. 1, p. 63). Russell returned to work on or about April 19, 1991. He has remained employed by John Morrell since that date. He bid into the same job as he held at the time of the injury and has received normal pay increases since that date. Russell's shoulder becomes more symptomatic and troublesome as his use of the shoulder increases. He frequently takes Advil or ibuprofen. His wife rubs analgesics on his shoulder when he is home from work. Russell's work requires some activity which exceeds the restrictions recommended by Dr. Cofield. He appears capable of continuing to perform his current job indefinitely. Russell demonstrated the capabilities of his right arm at the hearing. Without assistance from his left arm, he was able to raise the right arm with his hand extended upward to the point that the humerus was horizontal and the forearm and hand vertical. With assistance from the left hand he could raise the right to the point that the humerus was approximately 30 degrees above horizontal. He displayed a scar which ran diagonally across the top of his shoulder commencing at the front outer portion of the shoulder and ending on the backside close to the base of his neck. It is found that the impairment rating and activity restrictions recommended by Dr. Cofield are correct. They are not controverted. It is found that Russell's stated capabilities, limitations and symptoms regarding his right shoulder and arm are correct. There are approximately 90 jobs on the site of the John Morrell kill floor where Russell works. The superintendent of the kill floor stated that of those 90, approximately 20 would exceed Russell's restrictions. Russell is also eligible to bid approximately 50 other jobs which are in the cutting room. Most of those involve using a knife at waist level. Russell has not bid on any other jobs. There is no evidence in the record indicating which jobs his seniority would enable him to successfully bid into. Russell also has complaints involving his neck and other parts of his body. They are relatively minor in nature, have not been aggressively treated and no physician has imposed any activity restrictions or impairment rating with regard to any of his other symptoms. There is no showing of any physiological or anatomical abnormality which coincides with Russell's other complaints. Russell's principal problem involves his right shoulder. CONCLUSIONS OF LAW A great deal of the dispute in this case surrounds the issue of whether this is a scheduled injury to Russell's arm compensable under section 85.34(2)(m) or an injury compensable under section 85.34(2)(u). Iowa Code section 85.34(2)(m) states, "The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm...." Section 85.34(2)(u) states, "In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs "a" through "t" hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole." A recent case dealing with this issue decided by the Iowa Supreme Court is Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). In that decision the supreme court stated "We conclude that Iowa Code section 85.34(2)(o) in defining a leg, does not include a hip joint." That statement from the supreme court is a conclusion of law which creates a binding legal precedent that applies to every pertinent case. It is not a mere affirmance of a finding of fact made in reliance upon the substantial evidence rule. Logic requires that the same result would follow if the code section were changed to 85.34(2)(m), the word "leg" were changed to "arm" and the word "hip" were changed to "shoulder." An elementary understanding of terminology and anatomy is critical. The rotator cuff is an anatomical structure which is part of the structures which connect the arm to the shoulder girdle. It is the socket portion of the shoulder joint which is a ball and socket type of joint. The head of the humerus is the ball portion of the joint. The acromion is a part of the bone known as the scapula or sometimes commonly referred to as the shoulder blade. The clavicle is a bone that links the sternum to the scapula. It is sometimes referred to as the collarbone. The American Heritage Dictionary, 2d College Ed., defines "arm" as "an upper limb of the human body connecting the hand and wrist to the shoulder." In common usage, the term "arm" means the portion of the human body which is composed of the upper arm (humerus) and forearm (radius and ulna). In common usage it sometimes includes the hand and wrist. No authority has been found in any dictionary, treatise or from common usage which includes the clavicle or scapula as part of the arm. For purposes of section 85.34(2)(m) "arm" has its common meaning, namely, the upper limb which connects the wrist to the shoulder. The word "arm" does not include the shoulder. In medical terminology, as used by the medical profession, the term "arm" means "the segment of the superior limb between the shoulder and the elbow." Stedman's Medical Dictionary, 24th ed., p. 109. That reference goes on to recognize that the term "arm" is inaptly used by the general population to mean the whole superior limb. A great deal of the confusion dealing with shoulder and hip injuries arises from use of the medical terminology "upper extremity" and "lower extremity." Some individuals tend to use those terms interchangeably with the terms "arm" and "leg" which appear in the statute. Those terms are not synonymous and using them interchangeably creates confusion, errors and incorrect results. The term "upper extremity" has a precise meaning. In Gray's Anatomy, copyright 1974, 32d printing, at page 134, upper extremity is defined, "The bones of the upper extremity consist of those of the shoulder girdle, the arm, the forearm, and the hand. The term "shoulder girdle" is also defined. "The shoulder girdle consists of two bones, the clavicle and the scapula." On that page and the following pages, the extremities, their function and other basic anatomical facts are described. (Some older, obsolete versions of Gray's use the terms "arm" and "upper extremity" interchangeably but current versions make a distinction.) The term "upper extremity" is used in the Guides to Evaluation of Permanent Impairment, 3d ed. (revised), published by the American Medical Association. The Guides are commonly used to obtain predictable impairment ratings for specified medical conditions. The Guides provide impairment ratings of "extremities." The Guides do not provide impairment ratings for arms and legs. It is for this reason that in Lauhoff the supreme court stated "The AMA guide relied on is of doubtful authority in this case, in any event, because it includes the hip as part of the `lower extremity' a term which is not found in our statutory schedule." (pp. 839 & 840) Abnormal motion of the shoulder is rated at pages 34-38 of the Guides as impairment of the "upper extremity." The term "shoulder" is defined in Stedman's Medical Dictionary, 24th Edition at page 1282 as "the lateral portion of the scapular region, where the scapula joins with the clavicle and humerus and is covered by the rounded mass of the deltoid muscle." It is therefore clear that the term "upper extremity" includes not only the hand and the arm (in its common usage) but it also includes the shoulder. When a physician uses the terms "body as a whole" or "whole person," it means the trunk of the body, exclusive of the extremities. It does not include the hips or shoulders since they are parts of the lower and upper extremities. The term "impairment" is a medical terms that is not found in the statute. Its frequent, incorrect use is also responsible for confusion surrounding this issue. Stedman's at page 696 defines it as "weakening, damage or deterioration; e.g, as a result of injury or disease." The key portion of the definition is the word "damage." If a part of the body has not been damaged it is not possible for it to be impaired. The ability to make full use of an undamaged part of the body can be lost if its function is dependent upon some other part of the body which has been damaged. When such a situation occurs, it is the damaged part that is impaired, not the undamaged part. The term "impairment of the upper extremity" may properly be used by the medical profession to define an injury which, for workers' compensation purposes, is limited to the hand, is limited to the arm or which exists only in the shoulder. Impairment of many parts of the body can be converted under the Guides to an equivalent impairment of other parts or of the whole person. A doctor's choice of terminology or choice of converting or not converting has no bearing upon the ultimate determination of where the disability and impairment is actually located. The fact that a physician rates impairment as being of the "upper extremity" does not indicate whether or not it is limited to the arm or hand. In this case, the evidence in the record does not show any damage, impairment, disability, or loss of function whatsoever that is located within Russell's right arm. His right arm has not been damaged and appears to be perfectly healthy. His arm has not been the subject of a medical diagnosis, medical care or surgery. All the medical treatment and surgery has been performed on Russell's right shoulder. The treatment has been for damage and abnormalities which were in his rotator cuff, acromion and clavicle. Russell's loss of ability to move his right arm has not resulted from any damage or impairment to the arm itself. It results from damage and impairment of the shoulder girdle, namely, the structures of, in and about the acromion, clavicle and rotator cuff. The arm itself was not injured or damaged and is not impaired. The structures which provide the arm with movement at the shoulder are physiologically and anatomically damaged, deranged and disrupted. It is those shoulder structures which were the anatomical site of the original injury and damage. It is those damaged and impaired shoulder structures and their loss of function which resulted from the injury that makes Russell unable to make full use of his right arm. It is true that Russell does not have full use of his right arm, but the loss of use of his right arm is caused by the impairment of function of structures in his shoulder, not by any injury, impairment or damage in the arm itself. More than 40 years ago the Iowa Supreme Court dealt with a case in which the employee had suffered a fracture of the distal end of the collarbone (clavicle) where it joins the shoulder blade. In medical terminology, those structures are the distal end of the clavicle and the acromion. In that case, the employer asserted that the disability should be compensated as a scheduled disability of the arm. In rejecting that argument the Iowa Supreme Court stated, "Moreover it assumes an injury to the shoulder is an injury to an arm. This assumption is unwarranted. Subsection 13 [the current equivalent of section 85.34(2)(m)] does not apply to a shoulder injury, nor is such an injury scheduled in any other subsection...." emphasis added. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 1177 38 N.W.2d 161 (1949). That case cites Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Dailey was a case in which the employee had suffered a fracture of the femur. It did not heal properly (an apparently common occurrence), and the result was absorption or atrophy changes in the acetabulum (hip socket) although not marked. There also resulted tilting of the pelvis and a compensatory curvature of the spine. The employer in that case had unsucessfully argued, "Even though the injury be to a scheduled member we readily concede that if as a result of such injury some other part of the body is affected so as to create a disability separate and distinct from the usual, ordinary and natural results of the injury to the scheduled member, compensation may be awarded in addition to that provided in the schedule. Conversely we contend that even should the situs of the injury be without the schedule, the workman nevertheless is limited by the provisions of the schedule when the disability and incapacity flowing from the injury are manifested in and confined to the schedule member." The Iowa Supreme Court rejected that argument stating, "Support for their argument is found in some of the cases they cite from other jurisdictions, but we find ourselves unable to agree with the doctrine of these decisions..." Dailey, 233 Iowa page 764. The court went on to explain how the schedule operates, in particular, that an injury to a scheduled member may in fact cause the person to be permanently totally disabled and then states, "Such injury, though causing permanent total disability, is arbitrarily compensable according to the schedule. But where there is injury to some scheduled member, and also to parts of the body not included in the schedule, the resultant `permanent total disability' if established, is compensable under Code section 1395" (The counterpart of current section 85.33). emphasis added. The court goes on to state, "It is our conclusion appellee's injury is not within the schedules of Code section 1396 because the actual physical injury extended beyond and outside the scheduled area." 233 Iowa page 765. emphasis added. The Iowa Supreme Court recently again addressed the issue of scheduled versus nonscheduled injuries in the cases Mortimer v. Fruehauf Corporation, No. 200/92 - 1143 ___ N.W.2d ___ (Iowa 1993); Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Mortimer clearly states that the schedule is arbitrary and is to be used only when no other option is available. In Lauhauff the supreme court relied heavily upon the medical reference H. Gray, Anatomy of the Human Body. The court also recognized the distinction between the terminology of "lower extremity" which is used in the AMA Guides and the "leg" which is found in the statute. The illustrative portion of the decision states: Lauhoff argues that, even if a hip is considered to be a part of the body as a whole, there can be no recovery of benefits for industrial disability unless it is shown that a part of the body other than the leg is impaired. This, of course, is true. It argues, however, that, since the function of a hip is to provide articulation for the leg, impairment of the hip translates only in impairment of the leg, and is therefore governed by the leg schedule. We reject this argument; the impairment of body functions in this case were in the hip, not the leg, and we will not consider these functions to be coextensive merely because the hip function impacts on that of the leg. To do so would extend the application of Iowa Code section 85.34(2)(o) beyond its express terms by applying it to a body member not expressly included. The result would be a rupturing of the conceptual tidiness which is said to be the very essense of the scheduled-injury approach. (Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 840 (Iowa 1986) The most recent case addressing whether an injury should be compensated by the schedule is Mortimer, ___ N.W.2d ___. In that case the court confirmed the well established principle that the workers' compensation statutes are to be construed liberally to benefit the injured worker and again acknowledged the arbitrariness (unfairness) of the scheduled injury system. It would seem to be elementary that injured workers should be treated as fairly as the statute permits and that any doubt in construction or application should be resolved in favor of fairness. Compensating permanent disability industrially based on loss of earning capacity is inherently more fair than compensation based on the schedule. In Mortimer this court stated: A. Compensability under Iowa's workers' compensation act. Before proceeding to the question at hand, we think it would be helpful to review the compensation scheme under Iowa Code chapter 85, Iowa's workers' compensation act. As a creature of statute, our workers' compensation law--subject to constitutional limitations--may provide such provisions and limitations as the legislature deems necessary. But, as we noted earlier, this law is for the benefit of the working person and should be, within reason, liberally construed. Functional disability is arrived at by determining the impairment of the employee's body function. This disability is limited to the loss of the physiological capacity of the body or body part. Simbro v. Delong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). In contrast, industrial disability is arrived at by determining the loss to the employee's earning capacity of the body or body part. In this determination impairment of the body function--that is, functional disability--is just one factor. Other factors include the employee's age, education, qualifications, experience, and the inability of the employee to engage in employment for which the employee is fitted. All of these factors are used to measure the extent to which the injury impairs the employee's ability to earn wages. Id. Chapter 85 divides permanent partial disability into either a scheduled or unscheduled loss. See Iowa Code 85.34(2). Paragraphs (a) through (t) of section 85.34(2) are reserved for scheduled injuries, like a loss of a foot. Specific weekly benefits are listed. For example, paragraph (n) provides for weekly compensation during one hundred fifty weeks for loss of a foot. Unscheduled injuries are covered in paragraph (u). Benefits for these are based on the injury to the body as a whole. See Iowa Code 85.34(2)(u) ("compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole"). We have approved the use of functional industrial methods of determination within appropriate classifications of section 85.34(2). For example, a specific scheduled disability is determined by the functional method; an unscheduled disability is determined by the industrial method. Simbro, 332 N.W.2d at 887; see also Graves v. Eagle Iron Works, 331 N.W.2d 116, 117-19 (Iowa 1983) (held that an employee with a permanent partial disability to a leg had a scheduled disability that required the determination of functional impairment of his leg without regard to the industrial disability factors). So a person may suffer a permanent total disability as a result of some scheduled injury. This may happen because of age, lack of training, or other condition peculiar to the person. Yet such an injury is arbitrarily compensable according to the schedule. An unscheduled injury can result in permanent total disability. In these circumstances, the "weekly compensation is payable during the period of the employee's disability." See Iowa Code 85.34(3). .... ...Unscheduled injuries are covered in paragraph (u) of section 85.34(2).... This provision sets no limitation as to the physical location of the injury causing the disability. The only limitation regarding location of the injury concerns permanent partial disabilities arising from scheduled injuries. And although such injuries may cause permanent total disability because of the claimant's lack of education or experience or physical strength or ability, the injuries are arbitrarily compensable according to the schedule. This is so because the legislature in its wisdom has seen fit to give the commission no discretion with regard to scheduled injuries. The legislature did this in order to make certain the amount of compensation in cases of specific injuries and to avoid controversies. But where there is injury to a scheduled member and also to parts of the body not included in this schedule, there is no logical reason for such arbitrariness. It is clearly illustrated in Mortimer that there is no legal requirement to prove that an injury extends into "the body as a whole" in order to compensate the injury under section 85.34(2)(u). All that is necessary is to prove that the permanent physical injury impairs a part of the body which is not included in the schedule. In this case there is ample evidence of permanent injury to the shoulder, in particular, the clavicle. There is a scarcity of evidence of any injury to the arm. There is no logical, good faith way to find that the disability is confined to the arm. In order to make a correct legal evaluation it is necessary to look to the anatomical site of the physical injury, impairment and damage which produces the loss of function. As clearly mandated by Mortimer and Lauhoff, where the physical damage or derangement which causes the loss of use or impairment of an arm is found in the shoulder joint, or elsewhere in the shoulder, rather than in the arm itself, the disability is not a scheduled disability of the arm. In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. Dec. 1982), a torn rotator cuff was found to cause disability to the body as a whole. Anatomically the clavicle is at least as far into the body as the rotator cuff. Two recent appeal decisions issued by this agency deal with injuries in the acromioclavicular area of the shoulder. Those decisions are Hike v. IBP, inc., file number 764571 (App. Dec. Oct. 23, 1990); Prewitt v. Firestone Tire and Rubber Co., file numbers 931128 and 876686 (App. Dec. Aug. 12, 1992). Lauhoff is a case where the initial trauma and injury was to a scheduled member, the leg, as evidenced by the fracture of the femur. The injury was taken into the body by after effects which ran into the hip joint. Hike, Prewitt and the instant case, all involve situations where the initial trauma and anatomical injury was not located in a scheduled member. In all three of these cases, the initial, primary trauma and injury was to the shoulder girdle, a situation much like the situation in Alm. In Hike and Prewitt, as in the instant case, there is no evidence of any significant injury, anatomical damage, derangement or other problem within the arm itself. The only problem in any of these three cases is the impact that the deranged shoulder has upon the ability to use the arm. In each of these three cases dealing with the shoulder, namely, this case, Hike and Prewitt, the only possible explanation in the evidence which could cause loss of full use of the arm is the internal derangement in the shoulder. Unlike Lauhoff, none of these agency cases had evidence of injury to the scheduled member itself. What is clear from Lauhoff, however, is that if the loss of function of a scheduled member results from impairment of the function of the joint where the member attaches to the body and upon which it is dependent for its function, then the disability is to be evaluated and compensated industrially. It is difficult to reconcile Hike and Prewitt with Alm, Dailey, Lauhoff and Mortimer. It is likewise difficult to reconcile Hike and Prewitt with prior agency precedents such as Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. Dec. 1982) and the recent decision Auten v. Celotex Corp., file number 873898 (App. Dec. May 22, 1993). It is noted that Hike and Prewitt were taken to judicial review in the district court, reversed and remanded for being inconsistent with Lauhoff. The recent agency precedents demonstrated by Auten and Prewitt seem to state that if the injury impairs the rotator cuff it is not limited to the arm, but if it runs further into the body into the clavicle, the disability is limited to the arm, even if the arm itself is uninjured, unimpaired and affected only by loss of motion at the shoulder joint. It is concluded that the precedents set by the Iowa Supreme Court are controlling over contrary precedents within the agency. It is therefore concluded that since the use of Russell Weavill's arm is limited only as a result of the impairment of the function of his shoulder, and not from any damage or impairment of the arm itself, that the compensation should be determined in accordance with section 85.34(2)(u). It is an injury to the body as a whole, not a scheduled injury. 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 Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (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, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). 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. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); 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. Russell Weavill's work history includes a number of occupations and a number of different employers. His career pattern is replete with changes. It is probable that there will be further changes in his employment situation in the future. The loss of his ability to make full use of his right arm is a very significant problem for him in view of his lack of formal education and his prior work history. Thus far, he has not been subjected to re-entering the job market with a new employer in an impaired condition. He has experienced no actual loss of earnings thus far because he has been able to remain employed by John Morrell and Co. His actual earnings are a strong indication of earning capacity but his loss of physical capacity is also evidence of a loss of earning capacity. The determination of industrial disability involves a balancing of actual wages, loss of physical capacity, formal education, work history, experience, and other factors. When all the pertinent factors are considered in this case, it is determined that Russell Weavill has experienced a 20 percent loss of earning capacity and a 20 percent permanent partial disability within the provisions of Iowa Code section 85.34(2)(u). This entitles him to receive 100 weeks of compensation for permanent partial disability. ORDER IT IS THEREFORE ORDERED that defendants pay Russell T. Weavill one hundred (100) weeks of compensation for permanent partial disability at the stipulated rate of two hundred fifty and 03/100 dollars ($250.03) per week payable commencing April 19, 1991, as stipulated. It is further ordered that the entire amount of the award is past due and owing and shall be paid to the claimant in a lump sum with interest computed pursuant to section 85.30 from the date each payment came due until the date of actual payment. It is further ordered that the costs of this action are assessed against defendants. Sixty-five ($65) shall be paid to claimant as reimbursement for his filing fee. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Gary L. Johansen Attorney at Law 508 Davidson Bldg. 505-6th Street Sioux City, Iowa 51101-1242 Mr. Thomas M. Plaza Attorney at Law PO Box 3086 Sioux City, Iowa 51101 1803.1 Filed July 22, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RUSSELL T. WEAVILL, Claimant, vs. File No. 903186 JOHN MORRELL & CO., A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INS, Insurance Carrier, Defendants. ___________________________________________________________ 1803.1 Shoulder injury which was surgically treated by repair of torn rotator cuff, excision of distal clavicle and right anterior acromioplasty was found to be an injury that was not limited to the scheduled arm. Compensation awarded industrially. Detailed analysis made of differences between "arm" and "upper extremity" and of compensability of injuries and disabilities associated with the shoulder joint. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RUSSELL T. WEAVILL, File No. 903186 Claimant, vs. N U N C JOHN MORRELL & CO., P R O Employer, T U N C and O R D E R NATIONAL UNION FIRE INS., : Insurance Carrier, Defendants. ___________________________________________________________ Upon reviewing the decision entered in this case it is determined that a scrivener's error exists in the 13th line of the first full paragraph found on page 7 of the decision. As originally issued, that 13th line contains the following statement: (The counterpart of current section 85.33). The reference to the statute is incorrect and the portion of the decision should be and is hereby amended, nunc pro tunc, to read as follows: (The counterpart of current section 85.34(3)). In all other respects, the decision as originally issued is ratified and confirmed. Signed and filed this ____ day of July, 1993. ________________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Gary L Johansen Attorney at Law 508 Davidson Bldg 505-6th St Sioux City IA 51101-1242 Mr Thomas M Plaza Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Page 2 Sioux City IA 51102-3086 BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CHERYL R. HOOTMAN, Claimant, vs. File No. 903234 MERCY HOSPITAL, A P P E A L Employer, D E C I S I O N and IOWA SMALL BUSINESS EMPLOYERS, 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 November 29, 1994 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 March, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave. SW, Suite 114 Cedar Rapids, Iowa 52404 Mr. Gene R. LaSuer Ms. Becky Knutson Attorneys at Law 666 Walnut, Ste 2500 Des Moines, Iowa 50309-3993 5-1402.30; 5-1402.40; 3002 Filed March 9, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHERYL R. HOOTMAN, Claimant, vs. File No. 903234 MERCY HOSPITAL, A P P E A L Employer, D E C I S I O N and IOWA SMALL BUSINESS EMPLOYERS, Insurance Carrier, Defendants. ____________________________________________________________ 5-1402.30; 5-1402.40 Claimant failed to carry the burden of proving that it was probable that her pain complaints and disability resulted from her employment. 3002 There is a presumption that the natural children of an injured person are dependents and that presumption prevails until evidence to the contrary shows otherwise. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHERYL R HOOTMAN, : : Claimant, : : vs. : : File No. 903234 MERCY HOSPITAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA SMALL BUSINESS EMPLOYERS : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Cheryl Hootman against her former employer, Mercy Medical Center, based upon a stipulated injury of November 14, 1988. The principal dispute in the case turns upon determination of the extent, nature and duration of disability which that injury produced. Claimant contends that she is permanently and totally disabled and relies upon the odd-lot doctrine. She also seeks payment of expenses of medical treatment pursuant to section 85.27. There is a dispute regarding the rate of compensation revolving upon the claimant's marital status and number of exemptions when applied to the stipulated earnings of $228.01 per week. She has been paid 27 6/7 weeks of benefits at the rate of $156.71 per week. The evidence in this case consists of testimony from Cheryl Hootman and John Suter and jointly offered exhibits 1 through 30. The case was heard at Cedar Rapids, Iowa, on August 11, 1993. FINDINGS OF FACT Cheryl Hootman is a 46-year-old female who was injured on November 11, 1988, while carrying a desk in the course of her employment with Mercy Medical Center. She had also been injured on two other occasions while employed by Mercy but returned to work following those incidents with no apparent change in her overall physical condition. Cheryl did not resume employment following the November 14, 1988 injury, and she has not resumed employment of any type since that injury occurred. She is now receiving social security disability benefits based upon the condition of her back and her psychological condition. When injured on November 14, 1988, Cheryl was married but separated from her husband. She had one minor child at Page 2 that time. From the record it is unclear but it appears likely that the child was actually dependent upon her. Cheryl has a history of back problems dating as far back as 1973. Those problems involve hospitalizations. Cheryl also has a history of psychological disturbances, including hospitalization which predates the injury in this case. Following the injury in this case Cheryl received conservative treatment under the direction of Orthopedic Surgeon John S. Koch, M.D. When deposed Dr. Koch expressed the opinion that Cheryl had reached maximum medical improvement by May 4, 1989, and that while she has permanent impairment in her back, that it is not a result of her employment at Mercy (exhibit 25, pages 24-28). Dr. Koch attributes her lack of a recovery to things other than physical difficulties, in particular he indicates that psychological problems or depression are the likely cause. He stated that pain complaints commonly are a result of depression and that depression is not necessarily the result of pain (ex. 25, pp. 30-31). After Cheryl was released from treatment by Dr. Koch, she entered into a course of treatment with Richard F. Neiman, M.D., a neurologist. Under his care and diagnostic tests it was determined that she had a problem at the L4-5 level of her spine in the nature of a herniated disc. Orthopedic Surgeon William Roberts, M.D., became involved in claimant's care and eventually performed fusion surgery. The fusion surgery has not had any appreciable effect as far as relieving Cheryl's pain complaints. It is well documented in the record that she is afflicted with degenerative disc disease which had its origin and was symptomatic long prior to the time she was employed at Mercy. Dr. Neiman attributes Cheryl's back problems and pain to the November 14, 1988 injury based only upon the history which she has provided to him (ex. 9, p. 73). Dr. Roberts likewise attributes Cheryl's back problems to that injury based upon the history provided to him. When Dr. Roberts was presented with claimant's prior history of back problems and psychological difficulties he became unwilling to attribute any portion of claimant's disability to her employment at Mercy (ex. 10, pp. 36-44). It is apparent that the outcome of this case is dependent upon the weight given to the history which Cheryl has provided to the physicians who have treated her. The fact that the surgery had no appreciable effect at improving Cheryl's condition is an indication that the condition which was treated by the surgery is not the condition responsible for causing her pain complaints. None of the diagnostic tests which have been conducted have identified any physiological cause or source for her pain complaints other than degenerative disc disease and the disc problem treated by the fusion surgery. The only other cause suggested by the evidence in this case is a psychological component. The undersigned is well convinced that Cheryl is not Page 3 intentionally malingering. He is likewise fully convinced that there is a psychological component to her pain complaints regardless of what diagnosis is actually placed upon that psychological component. The record shows ample sources of stress in Cheryl's life other than stress in her workplace or stress resulting from the November 14, 1988 injury. It is not possible to attribute her psychological problems and symptoms to her employment at Mercy. Cheryl's statements regarding the nature, onset, severity and duration of pain are not reliable indicators of the severity of any injury she has sustained. Cheryl's prior hospitalizations for back problems do not appear to have resulted from any significant trauma. When the record in this case is viewed as a whole, there is certainly a possibility that Cheryl's back complaints currently afflicting her, were somehow caused by her employment at Mercy Medical Center. The evidence is not sufficiently strong, however, to show that possibility to be a probability. When her history of previous back problems and psychological difficulties is considered in light of the nature of her trauma, the lack of any objective medical diagnosis which identifies a physiological change attributable to the injury which is the source of her pain, the lack of any significant recovery from conservative care or from surgical treatment there is strong reason to believe that something other than what happened at Mercy Medical Center is responsible for her complaints of disabling pain. The greater likelihood in this case is that her pain complaints result from a combination of her degenerative joint disease and her psychological condition, neither of which were caused or significantly aggravated by her employment at Mercy Medical Center. A temporary aggravation of the degenerative joint disease is well established in the record but a permanent aggravation is not. The assessment of this case made by Dr. Koch is therefore accepted as being correct where it differs from that made by Doctors Neiman or Roberts. Dr. Koch personally treated Cheryl immediately following her injury. He observed her initial efforts at recovery. He observed the lack of neurological deficit and the existence of complaints which far outweighed any objective medical findings. It is therefore found that Cheryl Hootman's injury of November 11, 1988, did not cause any permanent disability and that her recovery from that injury was sufficiently complete by May 4, 1989, that she was medically capable of returning to employment substantially similar to that in which she was engaged at the time of injury but for the interaction of the psychological component of her condition. Any disability of any type which afflicted Cheryl Hootman subsequent to May 4, 1989 was not proximately caused by her employment at Mercy Medical Center. Any medical care which Cheryl Hootman received subsequent to May 5, 1989 has not been shown by a preponderance of the evidence to have been proximately Page 4 caused by her employment at Mercy Medical Center. CONCLUSIONS OF LAW Cheryl Hootman is entitled to recover weekly compensation for temporary total disability from November 14, 1988 through May 4, 1989, a span of 24 4/7 weeks. Cheryl Hootman's rate of compensation should be based on her being married with three exemptions. She was married despite the fact that she was separated. The marital relationship exists until it is terminated. The record in this case does not clearly show that Cheryl was not entitled to claim her minor child as a dependent. The presumption of dependency prevails. The rate of compensation in this case is therefore $156.71 per week, the rate at which voluntary payments were paid. In view of the findings of fact previously made, Cheryl is not entitled to recover any of the medical expenses for which she seeks payment. In view of the fact that Cheryl has received 27 6/7 weeks of compensation at the correct weekly benefit rate, she has already been paid all to which she is entitled under the record made in this case. ORDER IT IS THEREFORE ORDERED that Cheryl Hootman take nothing further from this proceeding. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of November, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 5 Copies to: Mr. Thomas Wertz Attorney at Law 4089 21st Ave SW STE 114 Cedar Rapids, Iowa 52404 Mr. Gene R. La Suer Ms. Becky Knutson Attorneys at Law 666 Walnut STE 2500 Des Moines, Iowa 50309-3993 51402.30 51402.40 3002 Filed November 29, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHERYL R HOOTMAN, Claimant, vs. File No. 903234 MERCY HOSPITAL, A R B I T R A T I O N Employer, D E C I S I O N and IOWA SMALL BUSINESS EMPLOYERS Insurance Carrier, Defendants. ___________________________________________________________ 51402.30 51402.40 Claimant failed to carry the burden of proving that it was probable that her pain complaints and disability resulted from her employment. 3002 There is a presumption that the natural children of an injured person are dependents and that presumption prevails until evidence to the contrary shows otherwise. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CHERYL R. HOOTMAN, Claimant, File No. 903234 vs. O R D E R MERCY HOSPITAL, N U N C Employer, P R O and T U N C IOWA SMALL BUSINESS EMPLOYERS, Insurance Carrier, Defendants. _________________________________________________________________ The first paragraph of the appeal decision filed March 9, 1994 is hereby amended to read: 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 November 29, 1993 is affirmed and is adopted as the final agency action in this case. Signed and filed this ____ day of April, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave. SW, Suite 114 Cedar Rapids, Iowa 52404 Mr. Gene R. LaSuer Ms. Becky Knutson Attorneys at Law 666 Walnut, Ste 2500 Des Moines, Iowa 50309-3993 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GERALD R. SKILLETT, File No. 903387 Claimant, A R B I T R A T I O N vs. D E C I S I O N ALUMINUM COMPANY OF AMERICA, Employer, Self-Insured, Defendant. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Gerald Skillett, against his self-insured employer, Aluminum Company of America, defendant. The case was heard on February 15, 1994 in Davenport, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of Harvey Dittmer, supervisor of the maintenance unit; Sharon Hanson, supervisor of the storeroom unit; and, Margaret Kundel, R.N., plant nurse. The record also consists of claimant's exhibits A, B, C and D; defendant's exhibits A-H; and joint exhibits 1-14. ISSUE The sole issue to be determined is the nature and extent of permanent partial disability benefits. FINDINGS OF FACT The deputy, having heard the testimony and considered all of the evidence, finds: Claimant is 48 years old. He is married with two adult children. However, on the date of his work injury, claimant had two dependents. He graduated from United Township High School in 1963. For nearly the duration of claimant's work experience, he has been employed at ALCOA (Aluminum Company of America). He commenced his employment on November 17, 1964. During the course of his employment, claimant has held a variety of jobs. In 1981 he bid into the job of brick mason. Primarily, claimant rebuilt the linings of furnaces. After a two year training program, claimant obtained the status of a journeyman. Claimant's job description included performing the following tasks: Duties and Working Procedure: 1. Mixes mortar; mixes and places castable mixes and aggregates. 2. Chips, drills and saw, materials. 3. Cleans tools and equipment. 4. Secures supplies. 5. Removes old work and disposes of waste materials. 6. Operates various saws to make simple and repetitive cuts. 7. Operates electric drill to mix mortar. 8. Records amount of time used. 9. Operates industrial vehicles to move material, employees, and supplies. 10. Move and dump filter units, clean filter units, and coat spinners. (Joint Exhibit 13) The parties stipulated that claimant sustained a work- related injury. At the time, claimant was replacing deteriorated floor brick in the skim house. He used a chipping hammer and an air operated gun to break up the floor bricks. After the bricks were broken, claimant shoveled the pieces and threw them into a tub. While he was shoveling in a bent position, claimant experienced a sharp pain in his lower back and the pain traveled down into his groin area. Despite his level of pain, claimant completed his shift. He reported the work injury to the proper personnel on the following day. Claimant sought medical attention at the emergency room at St. Luke's Hospital (Jt. Ex. 4, page 16 & 17). Jesse Deck, D.O., examined claimant and ordered x-rays of claimant's spine (Jt. Ex. 4, p. 16). The CT scan evidenced a degenerative narrowing of the interspace between L4 and L5 (Jt. Ex. 4, p. 30). Dr. Deck referred claimant to a specialist in orthopedics. On December 2, 1988, Robert Milas, M.D., examined and evaluated claimant for low back pain. The orthopedic physician opined in his report of December 5, 1988: Neurological examination reveals cranial nerves II to XII to be intact. Examination of the patient's strength reveals his strength to be symmetrical. Deep tendon reflexes are 1+ and symmetrical. There are no pathological reflexes evident. Straight leg raising is limited to 80 degrees on the left and 40 degrees on the right. There is marked lumbar paravertebral muscle spasm with marked limitation of lumbar motion in all planes. The patient ambulates with an obvious pelvic tilt. I reviewed his x-rays of the lumbar spine which show significant narrowing of the disc space at the L4-L5 level. A CT scan of the lumbar canal appears to show a central calcified disc at the L4-L5 level which extends toward the right. My impression at this time is that of a herniated lumbar disc at the L4-L5 level with resultant radiculopathy. The patient was instructed to remain on bed rest for a one week period of time. He is to use Empirin #4 on a p.r.n. basis for discomfort. The patient is also to use a bulk laxative on a daily basis. (Jt. Ex. 4, p. 16 & 17) Dr. Milas continued to treat claimant conservatively. Physical therapy was prescribed (Jt. Ex. 4, p. 38). After conservative treatment, claimant's condition improved (Jt. Ex. 4, p. 21). The treating orthopedist released claimant to return to work effective February 6, 1989 (Jt. Ex. 4, p. 22). One year following the work injury, Dr. Milas examined and evaluated claimant for purposes of providing a permanent impairment rating. The physician indicated: On examination the patient is an alert and oriented 43 year old white male who does appear to be in mild discomfort. The patient's strength and deep tendon reflexes are quite symmetrical. Lumbar motion is moderately restricted in all planes. The patient ambulates with a mild pelvic tilt. The impression at this time is that of a calcified herniated disc at the L4, L5 level. Utilizing the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, I would calculate a permanent partial impairment of the whole man as follows: Permanent Impairment Evaluation Continued: There would be a 7% permanent partial impairment of the whole person for an unoperated herniated lumbar disc, associated with chronic recurrent symptoms greater than six months in duration. There would be a 4% impairment of the whole person for limitation of lumbar flexion, a 3% impairment of the whole person for limitation of lumbar extension, a 2% impairment of the whole person for limitation of right lateral flexion, and a 2% impairment of the whole person for limitation of left lateral flexion. This would amount to an 18% permanent partial impairment of the whole person. I hope that this answers the questions you have regarding this patient. I do not feel that there is a significant likelihood of improvement in the future, nor do I feel that further therapy would continue to improve the patient's status. (Jt. Ex. 4, pp. 23 & 24) Dr. Milas later refined his expert opinion in a report he sent to claimant's attorney on June 22, 1993. Dr. Milas opined: As you know Mr. Skillet has a known herniated lumbar disc with residual symptoms for which I provided a disability rating in 1989. Mr. Skillett's disc derangement will remain permanent in nature. While he may have periods of relief of symptoms he also will have periods of exacerbation of his symptoms. I do not feel the patient will ever reach the state where he is pain free. With that in mind I do feel the patient needs to observe appropriate precautions at his place of employment for his entire life. These would include a 25# weight lifting restriction as well as restrictions prohibiting repetitive bending, stooping and twisting. (Jt. Ex. 4, p. 26) In November of 1993, claimant's MRI revealed: IMPRESSION: Degenerative disc disease is seen at the L4-5 level with central and rightward posterior spur formation from the inferior end plate of L4 with associated disc bulging and focal eccentric disc bulging into the inferior aspect of the right neural foramen at L4-5. While I cannot identify direct encroachment on the exiting [sic] nerve roots here, this spur or the disc bulging may be the etiology of the patient's right-sided leg pain. Correlation with clinical findings is required. Mild degenerative change is seen in the L3-4 and L5-S1 discs with no other significant abnormality otherwise identified. (Jt. Ex. 4, p. 34) Claimant sought and obtained an examination and an evaluation from Dennis Miller, M.D., an orthopedic surgeon. The physician opined: He walks with an entirely normal gait. There are no scars on his back. He has no list. He can walk on his tiptoes and on his heels without any difficulty. I didn't think there was any paravertebral muscle spasm. There was no obvious deformity of his lower back. He was able to reach within 12 inches of the floor. His back stretch- out measured 4 1/2 inches which is within normal range. He had lateral bending to 20o bilaterally. His straight leg raising tests were entirely normal. He had normal deep tendon reflexes at both knees and both ankles. There was no detectable muscle weakness, specifically dorsiflexors of the foot and great toe. There was no sensory loss. RADIOGRAPHS of the lumbosacral spine dated 12- 1-88 made at St. Luke's Hospital in multiple projections were available for review. These films demonstrate significant narrowing of the L4- 5 intervertebral disc space with sclerosis of the adjacent vertebral bodies, a vacuum sign in the disc space, and calcification adjacent to the posterior margin of the lower portion of L4. A CT scan of the lumbar spine done at St. Luke's Hospital dated 12-1-88 was also available for review. This study also confirms the degeneration at the L4-5 disc space with some hypertrophy of the facets at that level. Again, there is calcification or actually ossification at the posterior margin of L4. I think this is above the disc space and do not think this represents calcified disc material. The study was otherwise within normal limits. I believe that Mr. Skillett sustained an acute lumbosacral strain, superimposed on pre-existing degenerative disc disease at L4-5. The degenerative changes and calcification obviously pre-existed the injury of 11-30-90. At the present time, Mr. Skillett does have permanent impairment of this lumbar spine. Using the AMA Guides to Permanent Impairment, Third Edition, it is appropriate to assign 7% impairment to the degenerative changes noted radiographically. I think he has an additional total of 6% impairment based on limited range of motion for a total of 13% impairment of the body as a whole. (Jt. Ex. 2, pp. 7 & 8) Dr. Miller revised his opinion in his medical report of November 12, 1990. He opined: You are correct that there is an error in the last paragraph on the second page. It should be corrected to "pre-existed the injury of 11-30-88". The radiograph findings of the degenerative disc disease at L4-5 with hypertrophy of the facet, calcification and/or ossification of the posterior margin of L4 were present on the films dated 12-1-88. These changes, without question, predated the injury of 11-30-88. The changes were not apparent on films made in 1981 following a back injury and a fall of six feet. I believe that the 7% impairment contributed by the degenerative changes did pre-exist the 1988 injury and, thus, it is appropriate to assign 6% impairment of the body as a whole as causally related to the injury of 11-30-88. I hope these additional comments clarify my previous report. (Defendant's Ex. G) Claimant worked under certain work restrictions (Jt. Ex. 9). The restrictions were periodically reviewed by Forrest W. Smith, M.D., company physician (Def. Ex. H and Jt. Ex. 12). From 1989 through 1993, claimant's restrictions were: -Lifting should be limited to 75 pounds. -Pulling or pushing should be limited to objects within the weight lift limit. -Limited stooping, bending, squatting or twisting is permissible providing the weight being handled is within the weight lift limit. -Not to work in semi-stooped position for long periods. -NOT TO OPERATE THE HEAVY REFRACTORY SPRAYER (Jt. Ex. 9 and Def. Ex. H) As of the date of the hearing, claimant's restrictions were continuing. Dr. Smith diagnosed claimant as being "episodically symptomatic" (Deposition, p. 15). Dr. Smith testified that claimant should not be placed in "a hostile environment with excessive lifting" (Dep., p. 17). The physician did not believe changes in claimant's restrictions could be made (Dep., p. 49). Claimant returned to work as a brick mason. As aforementioned, his activities were restricted. On August 30, 1990, claimant completed an application for an inter- departmental transfer (Jt. Ex. 12, p. 73). He desired a transfer to the storeroom department. The ramifications of the transfer were listed on the face of the application form (Jt. Ex. 12, p. 73). The actual transfer occurred in January of 1991. In addition to suffering certain consequences of his transfer, claimant's pay grade level slipped from a paygrade 23 to a paygrade 11. This resulted in a loss of actual hourly wages. Claimant testified there was a $1.30 per hour loss. Claimant also testified that the loss would reduce the amount of his monthly pension. Claimant testified regarding the amount of overtime hours he worked both before and after the work injury. He testified that he worked less overtime following his work injury than he had worked before the injury. It is not known how many less overtime hours were worked because of claimant's physical condition or how many less were due to other reasons such as out of town athletic events. Claimant's exhibit D is a compilation of the average number of overtime hours worked per week by claimant and by co-worker John Musal. When claimant's average is compared to Mr. Musal's average, for the years provided, it appears claimant worked 1.52 hours per week less than did Mr. Musal. Claimant indicated during the hearing that since his transfer, he had been primarily driving a small fork lift truck. According to his testimony, claimant had been engaged in the delivery of materials to the various departments. Claimant testified that the job of fork lift truck driver was physically less demanding than was the job of brick mason. Since his transfer, claimant had not visited the company medical department with back complaints. He testified during cross- examination that since his transfer, he had always been able to perform his assigned tasks. CONCLUSIONS OF LAW The party who would suffer a loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa RR. App. P. (14)(f). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with 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. In the case at hand, claimant is still working under physician imposed physical restrictions. He has transferred to a light duty job which pays less than what he had been earning before the work injury. Claimant has been able to satisfactorily complete the assigned duties of the light duty position. His job is secure. He is motivated to work and to work overtime hours. However, if he seeks other employment, it is doubtful he will be able to secure the same position at the same rate of pay. Claimant has experienced an actual loss of earnings as a result of his work injury. He now makes at least $1.30 less per hour than he did prior to work injury. The transfer resulted in a loss of hourly earnings. Claimant has the option of retiring effective January 1, 1995, although he has no immediate plans to retire. Claimant's pension is not as lucrative as it would have been had claimant remained as a brick mason. His pension is calculated according to his last ten years of employment. It is easy to see that if he earns less money, his pension will be less than the pension of a brick mason. Therefore, in light of all of the above, it is the determination of the undersigned that claimant has sustained a permanent partial disability in the amount of 15 percent. He is entitled to 75 weeks of permanent partial disability benefits at the stipulated rate of $415.21 per week and commencing on February 6, 1989. ORDER Defendant shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of four hundred fifteen and 21/l00 dollars ($415.21) per week and commencing on February 6, 1989. Defendant shall take credit for all permanent partial disability benefits previously paid to claimant. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year. Costs are taxed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1994. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 E 6th St PO Box 339 Davenport IA 52805-0339 Mr. Thomas N. Kamp Attorney at Law PO Box 339 Davenport IA 52805-0339 5-1803 Filed November 29, 1994 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GERALD R. SKILLETT, File No. 903387 Claimant, A R B I T R A T I O N vs. D E C I S I O N ALUMINUM COMPANY OF AMERICA, Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1803 Claimant was awarded a 15 percent permanent partial disability as a result of a work injury to his back. Claimant had returned to work but he had transferred to a job which was not as physically demanding as the job he had held prior to his work injury. Claimant's actual hourly wage had decreased. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CONNIE KOPF, Claimant, vs. File Nos. 903450 & 1026712 HON INDUSTRIES, A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS INSURANCE CO., Insurance Carrier, and SECOND INJURY FUND OF IOWA Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Connie Kopf, as the result of alleged injuries occurring on November 22, 1988 in file number 903450 which involve both upper extremities. A second injury is alleged to have occurred on August 30, 1989 involving the left upper extremity in file number 1026712. Claimant is requesting permanent disability benefits from both the employer and the Second Injury Fund with respect to the August 30, 1989 injury. The employer admitted liability for the 1988 injury and denied liability for the 1989 injury. Numerous issues are presented in both file numbers. This case was heard and fully submitted at Davenport, Iowa on December 13, 1994. The record in the proceeding consists of claimant exhibits 1 through 4, employer exhibits A through D, Second Injury Fund of Iowa exhibits A1 and joint exhibits 1 through 3; and testimony from Connie Kopf, Ronald Kopf and Austin Cole. Claimant was represented by James Shipman and Chad Von Kampen, Attorneys at Law. The employer and insurance carrier were represented by Vicki L. Seeck, Attorney at Law. The Second Injury Fund of Iowa was represented by Joanne Moeller, Attorney at Law and Assistant Attorney General. ISSUES The issues presented for determination in file number 903450 are as follows: 1. Whether the injury of November 22, 1988 is a cause of permanent disability and the nature and extent thereof; 2. The period of temporary disability applicable to the November 22, 1988 injury; 3. The commencement date for permanent disability; and 4. Whether claimant is entitled to three exemptions for the rate of compensation calculation. The issues presented for determination in file number 1026712 are as follows: 1. Whether claimant sustained an injury on August 30, 1989, arising out of and in the course of employment with the employer; 2. Whether the injury is a cause of permanent disability and the nature and extent thereof; 3. Whether the injury is a cause of temporary disability and the extent thereof; 4. The commencement date for permanent disability; 5. Whether claimant is entitled to three exemptions for the rate of compensation calculation; 6. Whether the claim is barred by the time limitation provisions of Iowa Code sections 85.23 and 85.26; and 7. Whether claimant is entitled to Second Injury Fund of Iowa permanent disability benefits. FINDINGS OF FACT Having heard the testimony of the witnesses and having considered all of the evidence in the record, the deputy industrial commissioner finds: Claimant, Connie Kopf, began work for the employer Hon Industries in November of 1977. Claimant was primarily a production worker performing services which are best described as assembly line work in the manufacture of office furniture. Claimant primarily worked as an upholsterer. This work was extremely hand intensive. Claimant was a right hand dominate individual who suffered bilateral hand and upper extremity pain in the months proceeding November of 1988. Claimant sought treatment for the upper extremity pain on or about November 28, 1988. She was diagnosed as having bilateral carpal tunnel syndrome cause by the repetitive motion work for the employer Hon Industries. Claimant was treated by a significant number of medical and chiropractor specialists. Conservative treatment did not provide significant relief and surgery was eventually performed on the right wrist on February 1, 1990. Claimant had carpal tunnel surgery on the left wrist on April 10, 1990. Claimant alleged a second injury to the left hand on August 30, 1989. Mitchell Mally, D.C., opined on December 9, 1992 that the left hand did not become disabling until 1989. William Whitmore, M.D., an orthopedic surgeon, opined on March 22, 1993 that the left carpal tunnel syndrome did not become progressively worse based upon EMG testings from 1988 to 1989 and that there was no new injury in the year 1989 with respect to that hand (Second Injury Fund Exhibit A1). Richard F. Neiman, M.D., a neurologist, opined on April 19, 1993 that the left upper extremity suffered an increase in permanent disability as a result of work in 1989 (Claimant Exhibit 1, page 43). The question becomes whether claimant sustained a new injury on or about August 30, 1989 with respect to the left upper extremity or whether the left upper extremity impairment is actually a direct result of a cumulative trauma injury beginning November 28, 1988. It is held that the November 28, 1988 left upper extremity injury is essentially identical to the injury alleged to have occurred on August 30, 1989. Claimant had identical symptoms in 1988 as she expressed in 1989 as demonstrated by Dr. Whitmore's exam of December 20, 1988, where numbness and tingling in the tips of the left long and index fingers was noted (Joint Exhibit 2, page 1). Claimant's symptoms remained almost static which demonstrates that it was the same area of the hand being affected by the repetitive trauma. While claimant's symptoms may have grown progressively worse in the left hand due to additional work for the employer it does not equate to a separate new and distinct injury. Therefore, the left hand complaints should not be divided into two injury dates. Claimant has failed to establish by a preponderance of the evidence that a new injury to the left hand was incurred on August 30, 1989. Claimant was issued impairment ratings by T. L. Von Gillern, M.D., the treating surgeon. Dr. Von Gillern opined on July 10, 1991 that the right upper extremity was 8 percent impaired and the left upper extremity was 6 percent impaired equating to 8 percent impairment of the whole person as a result of the bilateral carpal tunnel syndrome incurred at Hon Industries (Employer Exhibit C, page 1). On April 19, 1993, Dr. Neiman opined that claimant sustained 15 percent impairment to the right upper extremity and 15 percent impairment to the left upper extremity as a result of the bilateral carpal tunnel syndrome which equates to 17 percent impairment of the body as a whole when using the AMA Guides. Claimant has significant work restrictions which inhibit her ability to perform the upholstering work that she was performing in 1988. Claimant has lost significant function in her hands as demonstrated by the difficulty in performing recreational activities and the restriction in her work activities with Hon Industries. It is found that the opinion of Dr. Neiman is entitled to greater weight both because it is more recent than the opinion of Dr. Von Gillern and because of the significant work restrictions placed on claimant as a result of the bilateral carpal tunnel syndrome. Claimant first lost time from work as a result of the November 22, 1988 injury on December 5, 1988. The healing period was intermittent in nature. All healing period benefits were attributable to the November 1988 injury as demonstrated by the medical records. Claimant also incurred temporary partial disability in late 1990 and through the first half of 1991. Since no injury in 1989 was established the healing period benefits and temporary partial disability benefits must be found to be causally connected to the November 1988 injury in file number 903450. Claimant alleged entitlement to three exemptions with respect to the rate of compensation calculation. In November of 1988 claimant's daughter, age 18, was living with her and her husband. The daughter was employed but was used as a tax deduction for the claimant's 1988 tax returns. The daughter was not in school at the time of the injury but was partially dependent upon claimant. Claimant has incurred some psychological difficulties surrounding the hand injuries and persistent pain. There was an indication in the medical records that certain psychological deficits and stress related problems needed to be addressed as part of the treatment program (Empl. Ex. A1). However, the medical records failed to clearly establish that the psychological difficulties were permanent in nature and a cause of permanent disability. Therefore, it is found that claimant failed to establish by a preponderance of the evidence that permanent disability resulted from psychological and stress related difficulties. reasoning and conclusions of law The first issue to be addressed in file number 1026712 is whether claimant sustained an injury on August 30, 1989, arising out of and in the course of employment with the employer. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). 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). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. 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). It is held that claimant has failed to establish an injury to the left hand or upper extremity occurring on August 30, 1989 in file number 1026712. The symptoms alleged in 1988 were clearly the same symptoms alleged in August of 1989 with respect to the left upper extremity. The injury was an ongoing and progressive problem with respect to the left upper extremity. No new disease process or body part injury occurred in August of 1989. To the contrary, it was an identical problem which progressively become worse. Therefore, it is held that only one injury occurred to the left upper extremity and it began in November of 1988. Claimant shall take nothing from file number 1026712. Since this issue is dispositive of all issues in that particular file number further discussion is unnecessary. The first issue to be discussed in file number 903450 is whether the injury of November 22, 1988 is a cause of permanent disability and the nature and extent thereof. Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). 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). It is held that claimant sustained 17 percent permanent partial disability to the body as a whole pursuant to Iowa Code section 85.34(2)(s). Having previously found that the November 1988 injury is bilateral and simultaneous it follows that the rating must be to the body as a whole based upon the combined disability of the two hands. As previously stated, the opinion of Dr. Neiman is given greater weight due to its date of preparation and correlation to the significant work restrictions. Claimant requested industrial disability based upon psychological involvement. While claimant did establish that there was a degree of psychological and stress related problems she failed to establish that those problems resulted in permanent disability. Therefore, industrial disability need not be addressed. The next issue is the causal connection of the stipulated healing periods. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The parties presented the issue as to which injury the healing period benefits should be attributed to. The parties were not in dispute as to the time for which claimant was entitled to healing period benefits or temporary partial disability but instead disputed whether they should be attributable to a 1988 or a 1989 injury. Having found that no injury occurred in 1989 which was new and different it follows that all healing period benefits and temporary partial disability benefits are attributable to the injury of November 22, 1988. The commencement date for payment of permanent disability benefits was also disputed. Claimant received intermittent payments of healing period benefits and temporary partial disability. It has previously been held that when no healing period benefits are paid the commencement date is the date of injury. Brincks v. Case Power & Equipment, Appeal Decision April 18, 1990, file number 843233. Applying the Brincks case it follows that the commencement date for permanent disability benefits should be the date of injury November 22, 1988. Permanent disability benefits would then be paid intermittently between healing period benefits and temporary partial disability benefits until exhausted. The next issue is whether claimant is entitled to three exemptions when calculating the rate of compensation. Iowa Code section 85.42(1)(b)(2) specifically provides that a child over the age of 18 must be physically or mentally incapacitated from earning to be considered a dependent. Section 85.44 provides that one must be actually dependent or physically incapacitated from earing in order to be an eligible dependent under Chapter 85. Claimant requested dependency status for a daughter, age 18, at the time of injury. The daughter was not a full-time student but was living at home. The daughter was considered a dependent for the 1988 tax returns. It is held that claimant is entitled to two exemptions for the injury of November 22, 1988. The third exemption cannot be granted because the daughter was employed and over the age of 18 without being a full-time student. Therefore, claimant is considered married and entitled to two exemptions with a gross earnings of $429.16 per week equating to a weekly benefit rate of $268.46. The final issue is whether claimant is entitled to Second Injury Fund of Iowa benefits under Iowa Code section 85.64. Section 85.64 governs Second Injury Fund liability. Before liability of the 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. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); 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). It is held that claimant has failed to establish entitlement to Second Injury Fund benefits as no injury has been adjudicated for August 30, 1989. ORDER IT IS, THEREFORE, ORDERED: Defendants Hon Industries and The Travelers Insurance Company shall pay claimant eighty-five (85) weeks of permanent partial disability benefits at the rate of two hundred sixty-eight and 46/100 dollars ($268.46) per week commencing November 22, 1988 and paid intermittently until exhausted in file number 903450. It is further ordered that defendants in file number 903450 shall pay claimant the stipulated periods of healing period benefits and temporary partial disability benefits at the rate of two hundred sixty-eight and 46/100 dollars ($268.46) per week. It is further ordered that claimant shall take nothing in file number 1026712 and said matter be dismissed. It is further ordered that claimant is taxed with the cost of the filing fee in file number 1026712. It is further ordered that in file number 903450 the gross earnings is four hundred twenty-nine and 16/100 dollars ($429.16) and claimant is entitled to a married status with two exemptions for a weekly rate of two hundred sixty-eight and 46/100 dollars ($268.46). It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that costs of this action are assessed against defendants Hon Industries and The Travelers Insurance Company pursuant to rule 343 IAC 4.33. It is further ordered that defendants Hon Industries and The Travelers Insurance Company file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1994. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James E. Shipman Attorney at Law 115 3rd Street SE, Ste 1200 Cedar Rapids, IA 52401 Ms. Vicki L. Seeck Attorney at Law Suite 600 111 E. 3rd Street Davenport, IA 52801-1596 Ms. Joanne Moeller Assistant Attorney General Hoover Bldg. Des Moines, IA 50319 5-1808, 5-1902, 5-3200 Filed December 21, 1994 Marlon D. Mormann BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CONNIE KOPF, Claimant, vs. File Nos. 903450 & 1026712 HON INDUSTRIES, A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS INSURANCE CO., Insurance Carrier, and SECOND INJURY FUND OF IOWA Defendants. ___________________________________________________________ 5-1808, 5-1902, 5-3200 Claimant alleged a bilateral simultaneous injury to the right and left hands known as carpal tunnel syndrome occurring on November 22, 1988. Claimant alleged a second injury occurring in 1989 to the left upper extremity due to the same carpal tunnel syndrome. Since the symptoms were identical between 1988 and 1989 it was held that no new injury had occurred. It was the identical condition that claimant suffered from in 1988 as compared to the 1989 injury. Claimant only suffered an increase in symptomatology rather than a separate and distinct injury. No second injury was established. The entire claim was adjudicated under the November 1988 date. Claimant was allowed 17 percent to the body as a whole under Iowa Code section 85.34(2)(s). The most recent impairment rating was given greater weight. Claimant requested dependent status for a daughter who was age 18 at the time of the injury and living at home but not a full-time student. Dependency status was denied due to the age and the fact that she was employed. Claimant was denied permanent disability to the body as a whole for a psychological problem as it was not determined to be a cause of permanent disability notwithstanding the fact that it was causally connected to the injury. No assessment was made against the Second Injury Fund of Iowa as the second injury was not established.