Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENNIS NETTIFEE, : : Claimant, : : vs. : File No. 905117 : NORTHWESTERN STATES PORTLAND : A R B I T R A T I O N CEMENT COMPANY, : : D E C I S I O N Employer, : : and : : U S F & G, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Dennis Nettifee against Northwestern States Portland Cement Company and its insurance carrier based upon an alleged injury of December 17, 1988. Nettifee seeks weekly compensation for healing period, permanent partial disability or permanent total disability and payment of medical expenses. A very substantial issue in the case is whether the condition upon which the claim is based is the result of an injury which arose out of and in the course of employment. The case was heard at Mason City, Iowa on February 5 and 6, 1991. The record in the case consists of testimony from Dennis Nettifee, Robert Willits, Steve Falkner, Thomas Frank, LeeAnne Christenson and Lucille O'Donnell. The record also contains jointly offered exhibits 1 through 43, including exhibits 22A, 34A and 34B. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. It is found that Dennis Nettifee injured his back on December 17, 1988 in the manner which he described at hearing. This finding is made despite the initial entry made by James K. Coddington, M.D., in his notes of December 19, 1988 in which it is recorded that claimant saw him and expressed symptoms which had their origin approximately two months earlier. Dr. Coddington is a credible witness, but there is some chance, albeit small, that he made an error when recording the history. Claimant's version of what Page 2 occurred is corroborated by testimony from Robert Willits, stating that claimant was definitely in pain when he observed him. The back injury is corroborated by claimant's first aid report (exhibit 38). It is corroborated by the history claimant gave to the other physicians. It is corroborated by the evidence from David W. Beck, M.D., which establishes that it would be unusual for someone to work performing physical labor for any length of time with a herniated disc of the type which the doctor observed (exhibit 27, pages 36 and 37). Even Dr. Coddington agreed that claimant apparently sought medical care because the level of his pain had worsened (exhibit 26, page 25). At hearing, claimant appeared credible with regard to his description of the events of December 17, 1988. Claimant worked approximately two days following the injury and then sought treatment from Dr. Coddington who in turn referred him to E. A. Crowell, M.D., for diagnostic testing which was interpreted as showing a large ruptured disc at the L4-5 level on the left side of claimant's spine and a small bulge at the L5-S1 level on the right side of his spine (exhibits 8 and 9). Claimant was then referred to orthopaedic surgeon David W. Beck, M.D. After conservative treatment failed, Dr. Beck performed an L4-5 hemilaminectomy and discectomy on February 8, 1989. Dr. Beck indicated that he expected a recuperation period of approximately three months (exhibit 11). Claimant's leg complaints were resolved by the surgery, but he continued to complain of back pain. He remained in treatment with Dr. Beck until approximately November 1, 1989 (exhibits 13-17; exhibit 27, pages 20-25). While under treatment from Dr. Beck, claimant underwent a work hardening program from late March through early July, but did not improve. In September 1989, Lucille O'Donnell, a qualified vocational consultant, became involved in claimant's case. With her assistance, claimant was evaluated by orthopaedic surgeon Gene E. Swanson, M.D. Dr. Swanson recommended additional physical rehabilitation and work hardening. At the conclusion of the program, a functional capacity evaluation was performed which showed claimant to be capable of occasionally carrying or lifting as much as 50 pounds and frequently lifting up to 24 pounds. His main limitation was found to be in the area of bending and squatting (exhibits 18-22). Dr. Swanson adopted those physical capabilities as his activity restrictions (exhibit 22A). The activity restrictions recommended by Dr. Beck are not identical, but are quite similar to those from Dr. Swanson (exhibit 27, page 32). Drs. Swanson and Beck felt that the injury of December 17, 1988 which claimant had described to them when they received their respective medical histories was a cause of the herniated disc (exhibits 11, 23 and 27, page 40). Dr. Page 3 Swanson imposed an impairment rating of 13 percent (exhibit 21). Dr. Beck assigned an impairment rating of 11 percent of which he felt 2 percent was related to claimant's preexisting back condition (exhibit 27, pages 27, 28 and 31). The opinions on causation and impairment ratings are not inconsistent with each other. They are adopted as being correct. Claimant, at the time of hearing, was still being carried by the employer in a status of being incapacitated. He had been regularly sent notices of jobs upon which he could bid, some of which fell within the restrictions which had been recommended by Drs. Swanson and Beck. Claimant did not actually bid for any of the jobs. According to Thomas Frank, safety director for the employer, there were at least 12 jobs, for which notices were sent to claimant, that did comply with the doctor's restrictions and that claimant's seniority would have made him the successful bidder on 7 of those 12 jobs, if he had chosen to make a bid. The testimony from Frank is found to be accurate and correct. Despite being off work for approximately two years at the time of hearing, claimant has not taken any meaningful action to either return to work or obtain retraining. His efforts with Steve Falkner, vocational rehabilitation counselor with the Iowa Division of Vocational Rehabilitation Services were initiated only shortly prior to hearing. Claimant's bicycle shop and art work designing silk screens for printing on shirts do not appear to be viable career options. As indicated by Dr. Beck, the level of claimant's residual complaints is atypical (exhibit 27, pages 33 and 34). The MRI scan which was conducted indicated no recurrent disc problems and actually appeared quite good according to the doctor (exhibit 27, pages 20-25). Dr. Swanson, in his reports, made comments regarding the fact that claimant was engaged in litigation and that it would likely be beneficial to claimant if the matter could be settled (exhibit 21). Vocational consultant O'Donnell commented at hearing that claimant's motivation to resume work was questionable and that he seemed to be holding back as if in an attempt to obtain some type of secondary gain. It is found that Dennis Nettifee is not motivated to resume employment and has not made reasonable efforts to resume employment. To the contrary, he appears quite comfortable with his present status. He seems to enjoy the freedom to travel to BMX bicycle races with his sons and to participate in the activity of managing the local BMX race track. It is specifically found that claimant did achieve maximum medical improvement approximately three months following his surgery as indicated by Dr. Beck. In view of the work hardening program which claimant followed under the direction of Dr. Beck, it is found that at the time claimant Page 4 ceased the program on July 6, 1989, it was medically indicated that further significant improvement from the injury was not anticipated. The remaining treatment which has been provided to the claimant is not found to have improved his condition substantially. To the contrary, claimant has failed to prove, by a preponderance of the evidence, that the residual complaints which led to all that additional treatment were bona fide and of the degree of severity which he described to the physicians. The evidence fails to show that claimant was actually incapacitated from working at any time subsequent to July 6, 1989. Dennis Nettifee is a high school graduate with approximately two years of college. He appeared to be of at least average intelligence when he was observed at hearing. His intellectual and physical capacities would permit him to obtain employment if he were to make reasonable efforts. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 17, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Despite the conflicting evidence, it is found that the claimant has proven, by a preponderance of the evidence, that he injured his back on December 17, 1988 in the manner which he described at hearing. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 17, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 5 Aggravation of a preexisting condition is one form of compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Since the facts have been found to support claimant's version of the manner in which the injury occurred, the history relied upon by Drs. Beck and Swanson is reasonably accurate. Their assessments of causal connection are adopted as being correct. It is therefore concluded that the December 17, 1988 injury is a proximate cause of the residual disability which afflicts Dennis Nettifee regarding his low back. Claimant is entitled to recover healing period compensation until the earlier of the three events set forth in section 85.34(1) of The Code. Since he has not made any actual return to substantial work, his healing period is terminated by the point at which it is medically indicated that further significant improvement from the injury was not anticipated. Based primarily upon the evidence from Dr. Beck and the claimant's inability to prove the severity of his continuing symptoms, it is determined that claimant's entitlement to healing period compensation ended July 6, 1989 when the first work hardening program was terminated. Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). His entitlement to healing period compensation is therefore 27 and 2/7 weeks. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment Page 6 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. 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. It is determined that this claimant's lack of employment and lack of actual earnings is not an accurate indicator of his earning capacity. As established by Tom Frank, he could have resumed employment, consistent with the release issued by Dr. Swanson and the activity restrictions recommended by Dr. Beck. He chose to make no attempt to do so, however. His lack of employment is a result of his lack of motivation to seek employment. If he had attempted to bid the seven jobs which his seniority would have acquired for him, he would likely be employed and earning an amount comparable to what he earned at the time of injury with Northwestern States Portland Cement Company. His failure to remain employed is not a result of any adverse action taken by the employer. An injured employee has a duty to use reasonable means to effect as speedy and complete a recovery from his injuries as may be reasonably accomplished under all the existing circumstances. If he fails to do so, he is not entitled to recover for the portion of his disability, or loss of earning capacity, which he could have avoided through reasonable efforts. The record in this case clearly shows that Dennis Nettifee has failed to take reasonable efforts to preserve his earning capacity. He did not bid on suitable jobs with the employer and did not seriously pursue any other type of work or training to qualify for work. His recovery is therefore determined based upon what his status would be if he had made reasonable efforts. Knauss v. City of Des Moines, 357 N.W.2d 573 (Iowa 1984); Vorthman v. Keith E. Myers Enterprises, 296 N.W.2d 772, 14 A.L.R.4th 1085 (Iowa 1980); Stufflebeam v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943); Johnson v. Tri-City Fabricating & Welding Co., Thirty-third Biennial Report of the Industrial Commissioner 179 (App. Decn. 1977). When all the pertinent factors of industrial disability are considered, it is determined that Dennis Nettifee sustained a 20 percent permanent partial disability as a result of the December 17, 1988 injury. This entitles Page 7 claimant to recover 100 weeks of compensation payable commencing July 7, 1989. The record does not contain a precise itemization of claimant's medical expenses. It is in the record, however, that he paid $1,525.00 towards his medical bills with his own funds and that the employer is entitled to credit in the amount of $16,304.32 for amounts paid by the employer's group medical insurance carrier. Since the employer has been determined to be liable for claimant's injury, it is entitled to the credit as stipulated. Defendants are also required to reimburse claimant for the expenses which he individually paid as set forth in the attachment to the prehearing report in the amount of $1,525.00. order IT IS THEREFORE ORDERED that defendants pay Dennis Nettifee twenty-seven and two-sevenths (27 2/7) weeks of compensation for healing period payable commencing December 28, 1988 at the stipulated rate of two hundred sixty-four and 54/100 dollars ($264.54). IT IS FURTHER ORDERED that defendants pay Dennis Nettifee one hundred (100) weeks of compensation for permanent partial disability at the stipulated rate of two hundred sixty-four and 54/100 dollars ($264.54) per week payable commencing July 7, 1989. IT IS FURTHER ORDERED that all past due accrued amounts shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30 computed from the date each payment came due until the date of actual payment. IT IS FURTHER ORDERED that defendants pay claimant's medical expenses. Defendants shall pay any unpaid balance of the expenses and shall refund to claimant the total sum of one thousand five hundred twenty-five and 00/100 dollars ($1,525.00) which he expended from his own funds. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants pursuant to rule 343 IAC 4.33. 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 ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. Richard R. Winga Attorney at Law 300 American Federal Building P.O. Box 1567 Mason City, Iowa 50401 Page 1 1402.20; 1402.30; 1802 1803 Filed May 7, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : DENNIS NETTIFEE, : : Claimant, : : vs. : File No. 905117 : NORTHWESTERN STATES PORTLAND : A R B I T R A T I O N CEMENT COMPANY, : : D E C I S I O N Employer, : : and : : U S F & G, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1402.20; 1402.30 In the face of conflicting evidence, in particular an inconsistent initial medical history, claimant was found to have been injured in the manner he described at hearing. His testimony was corroborated by several other sources of evidence. 1802 Claimant was not motivated to resume work. He failed to even attempt to bid for jobs with the employer which were within his physical capabilities and would have largely eliminated any actual loss of earnings. His complaints were out of proportion to the objective findings made by his physicians. He seemed quite content with his status of not being employed as it allowed him time to engage in hobby-type activities with his children. It was held that the healing period ended when his first session of work hardening therapy was discontinued, a date approximately five months following the date of surgery, despite the fact that he continued in medical treatment for more than a year thereafter, including treatment by a different physician and additional physical therapy. 1803 Permanent partial disability compensation of 20 percent was awarded where impairment ratings were in the range of 11-13 Page 2 percent and where activity restrictions permitted handling weights of up to 50 pounds occasionally and approximately 35 pounds frequently. Much weight was given to the fact that claimant could have resumed employment with the employer, but made no effort whatsoever to do so and that, if he had bid, he would have been successful in obtaining jobs which fit his activity restrictions. The duty to mitigate was discussed in the decision. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD P. PEEK, : : Claimant, : File No. 905119 : vs. : A R B I T R A T I O N : SHELLER-GLOBE CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Richard Peek, claimant, against Sheller-Globe Corporation, employer as defendant. Claimant alleges that he sustained a compensable injury to his back on March 2, 1987. The case was heard at Cedar Rapids, Iowa on April 24, 1991 and was considered fully submitted upon conclusion of the hearing. Leave was granted so that the parties could file briefs. The record in this proceeding consists of the testimony of claimant, Rick Innis, Fred Shimon, Karen Stromer, and Alice Kasper; claimant's exhibits 1-4; and, defendant's exhibits A-D. issues Pursuant to the prehearing report submitted and approved at the hearing, the following issues were presented for resolution: 1. Whether claimant received an injury which arose out of and in the course of his employment; 2. Whether there is a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to temporary total or healing period benefits, or permanent partial or permanent total disability benefits; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; 5. Whether defendant is entitled to credit as provided for under Iowa Code section 85.38(2); and, 6. Claimant's workers' compensation rate. Page 2 It is also noted that defendant raised the affirmative defense of lack of notice as governed by Iowa Code section 85.23. Although defendant also raised the statute of limitations defense under Iowa Code section 85.26, this was not listed as a issue on the hearing assignment order signed and filed January 24, 1991. As a result, the undersigned is unable to address this issue. See, Joseph Presswood v. Iowa Beef Processors, (Appeal Decision Filed November 14, 1986). Even if this affirmative defense could be addressed, it would fail. Claimant has alleged an injury date of March 2, 1987. His petition was filed March 1, 1989, and falls within the applicable two-year statute of limitations, as provided for under Iowa Code section 85.26. findings of fact The undersigned deputy, having reviewed all of the evidence, finds the following facts: Richard Peek, claimant, was born on December 2, 1934. At the time of the hearing, he was 56 years of age. He attended a vocational high school for two years. Claimant worked at several odd jobs for several years, and then joined the Army. Two years later, he received an honorable discharge, with training as a wheel vehicle mechanic. When he returned from the Army, claimant went into business for himself for twelve years as a commercial freight hauler. In 1969, claimant joined General Electric and worked as a coil winder and gauger in the factory. After three years, claimant worked for several other businesses before joining defendant Sheller-Globe, where he has worked since 1978. His primary duties has been as a salvage operator, although he periodically helped workers with other types of jobs. In 1983, claimant sustained a work-related injury and was paid compensation benefits. On March 2, 1987, claimant testified that he was working temporary services in the roto cast area. He described this assignment as collecting scrap, putting it in a tub, placing the tub on a low lift, and hauling it to be baled. As he lifted a particular tub, he felt pain in his back. He kept working, and at the end of the day told the company nurse, Alice Kasper, about the incident. Claimant returned to work the following day, was not getting any better, and was referred to C. A. Skaugstad, M.D., and Susan Goodner, M.D., both of whom are company doctors. The notes indicate that claimant complained of increasing difficulty with low back pain which radiated to the right hip. Upon examination, he demonstrated decreased range of motion and tenderness over the L3, L4, and L5 areas Page 3 and into the right sciatic notch. Straight leg raising tests were negative, and the neuromuscular exam of the lower extremities was unremarkable. Claimant was assessed as having a low back strain with sciatica. He was taken off of work for one day, with a return to work on March 5, 1987. He was to avoid lifting and twisting activities. He was given Motrin and Flexeril. (Claimant Exhibit 2-(2), page 1). On May 6, 1988, claimant took a leave of absence at work for eye surgery, which is unrelated to this action. He was released to return to work from the eye surgery on June 6, 1988. (Cl. Ex. 3-(2)). On May 18, 1988, claimant sought treatment from D. G. Sattler, M.D. He complained of "sciatic-type" pain, and he was referred to another physician, Dr. Durhee. (Cl. Ex. 2-(3)). However, claimant did not seek medical treatment from Dr. Durhee, but instead went to James Worrell, M.D., on June 1, 1988. His notes indicate the following: Mr. Peek found his way over to my office today. I had seen him back in 1984 when he had severe back and left leg pain. At that time myelography and bone scanning were all negative and he seemed to do better. A couple of months ago he again rather spontaneously developed pain in the lower lumbar area out into the left hip down the leg into the shin. . . . He recalls no specific trauma or strain. (Cl. Ex. 2-(4)). Claimant was taken off of work, and began a physical therapy program at Iowa City Physical Therapy Services. (Cl. Ex. 2-(5)) Claimant returned to Dr. Worrell on June 22, 1988 with recurrent radicular pain down the left leg. An EMG was performed, which suggested left L5 radiculitis. He continued off of work, and continued physical therapy. (Cl. Ex. 2-(6)) . Claimant returned to Dr. Worrell on July 12, 1988. He was admitted to Mercy Hospital in Iowa City, Iowa for a myelogram and CT scan. The notes indicate that several years prior to his admittance, claimant had undergone another myelogram which was normal. The notes further state that, "[h]e had gotten along reasonably well and I had not seen him again until June 1 . About a month or so before that he developed rather severe pain in the left back and left hip, down the left leg. No specific new trauma." Upon examination, claimant displayed objective findings of decreased pain and touch perception over the left great toe and up the calf. Straight leg raising tests were painful on the left side, and bending was limited. (Cl. Ex. 2-(7)). The results of the myelogram showed no evidence of a herniated disc at the L5-S1 level. It did indicate mild bulging. Page 4 The tests also showed no evidence of a herniated disc or spinal stenosis at the L4-5 level. Likewise, there was no evidence of a herniated disc or specific spinal stenosis at the L3-4 level. The overall impression was one of no significant findings. (Cl. Ex. 2-(8)). Due to continuing problems, claimant underwent an epidural steroid injection at the L4-5 level on August 3, 1988, which was performed by R. Beckman, M.D. He noted that although claimant had an initial back injury approximately four years ago, he was treated conservatively and eventually was able to resume working in normal activities. He noted that claimant had been doing fairly well but began to have problems three months ago. (Cl. Ex. 2-(9)). Claimant also underwent a lumbar MRI and CT scan. He was treated with conservative methods until December 5, 1988, when a lateral disc herniation at the L4-5 was diagnosed. (Cl. Ex. 2-(10); 2-(11); 2-(12); and, 2-(13)). Claimant was referred to Edward Dykstra, M.D., James Puhl, M.D., and Edward Law, M.D. Upon determination of left lateral disc herniation, claimant was scheduled for surgery and underwent the same on January 13, 1989. (Cl. Ex. 2-(17); 2-(19)). Claimant was discharged on January 15, 1989. (Cl. Ex. 2-(19)). Claimant embarked on a period of recuperation which included physical therapy from January of 1989 through November 14, 1989. At that point, Dr. Law released claimant to return to work, and imposed a 10 percent permanent partial impairment rating based on claimant's current condition. (Cl. Ex. 2-(20)-(36)). Specifically, Dr. Law's rating was based on an eight percent permanent partial impairment rating for the surgically treated disc with some residual symptoms, and two percent impairment for slight loss of side bending. (Cl. Ex. 2-(37)). Claimant returned to work, and has not sought consultations with any physicians since May of 1990, his last scheduled examination. And, he has not missed work due to his back since his release of October 9, 1989. At the time of the hearing, claimant had successfully bid into a position in the roto-cast department. He has encountered no difficulties in performing the job. analysis and conclusions of law The first issue to be addressed is whether claimant received an injury on March 2, 1987 which arose out of and in the course of his employment. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 2, 1987 which arose out of and in the course of his employment. Page 5 McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. Claimant testified that he notified the company nurse, Alice Kasper, that he hurt his back while lifting vinyl scraps and placing them in a tub. Claimant described his duties as consisting of some heavy lifting, as well as bending, stooping, and carrying tubs of scrap. Alice Kasper also testified at the hearing, and remembered that claimant requested medical treatment in March of 1987. As a result, it is found that it is uncontroverted that claimant received a injury which arose out of and in the course of his employment. Defendant has raised the affirmative defense of lack of notice as governed by Iowa Code section 85.23. This portion of the Code provides, in pertinent part: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, . . . no compensation shall be allowed. The failure of the employee to provide the employer with notice of the injury 90 days from the occurrence of the injury is an affirmative defense. The employer must prove by a preponderance of the evidence that the employer did not provide adequate notice. See, Mefferd v. Ed Miller & Sons, Inc., 33 Biennial Rep., Iowa Indus. Comm'r 191 (Appeal Dec. 1977). The defendant has failed to establish the notice defense under section 85.23. The company nurse was aware of the on-the-job injury, and directed claimant to the company physician. The employer had sufficient information to Page 6 investigate the incident, and the nurse's knowledge is sufficient, as provided under Robinson v. Department of Transportation, 296 N.W.2d 809 (Iowa 1980), to constitute actual notice. The next issue to be resolved is whether there is a causal relationship between the injury of March 2, 1987 and claimant's current disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 2, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). The Iowa Supreme Court cites, apparently with approval, Page 7 the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. The outcome of the case depends upon claimant's ability to prove that his work-related injury in March of 1987 was serious enough so as to require surgery, which occurred in January of 1989. In fact, there was more than one year lapse between claimant's injury and concerted medical treatment. While claimant testified that since the March 2, 1987 incident his back became progressively worse, there is no medical documentation to substantiate his position. Likewise, the company nurse indicated that claimant did not continue to seek medical guidance from her. Julie Strommer was the claimant's group leader in 1987 and 1988. She testified that she had daily contact with the claimant and that he made no mention of difficulty in performing his job duties because of an injury on the job. Likewise, Fred Shimon, the safety director at the plant, was unaware of claimant's work injury of March 2, 1987. He, too, had frequent contact with the claimant. Physicians who were involved in the case have formed various opinions regarding the cause of claimant's back problems and subsequent surgery. For example, Dr. Worrell stated the following on January 17, 1989: I have claimed that Mr. Peek's current problem is still related to his prior injury of 1984. It was simply an exacerbation of his preexisting problem. (Cl. Ex. 2-(18)). However, Dr. Worrell added the following clarification on January 26, 1989: I agree that his back problem had done well until 1987 and I think this was a re-injury of a preexisting, at the time, asymptomatic problem. Hopefully this will clarify the situation. (Cl. Ex. 2-(22)). However, Dr. Law made the following assessment on June 14, 1990: The patient was injured at work in December, 1983 at Sheller Globe. He had some left leg pain which was dull. Then after prolonged standing he noted some tingling and numbness in the left leg in the summer of 1988. (Cl. Ex. 2-(37)). Finally, William J. Robb, M.D., evaluated claimant on August 27, 1990: I would agree with Dr. Law that the incident Page 8 precipitating the need for lumbar laminectomy was the injury of December 16 which the patient states is 1984 although records would indicate this injury was on December 16, 1983. (Cl. Ex. 2-(38)). Dr. Robb was also deposed for the case, although his testimony does not unequivocally attribute claimant's surgery to any one specific episode. (Cl. Ex. 2-(39)). In reaching a conclusion, the undersigned must take into account all of the evidence presented with respect to the causally relationship between claimant's March 2, 1987 injury and his present disability. There are several instances in the record when claimant did not even mention the March 2, 1987 episode during the history taken by the medical practitioner. Likewise, the physician's opinions are certainly equivocal. Additionally, the facts indicate that claimant was not treated on a regular basis for any type of back pain for more than one year after the March 2, 1987 accident. Dr. Law's opinion carries the greatest amount of weight, as he performed the surgery and monitored claimant's care after the herniated disc was diagnosed. Dr. Law, as well as Dr. Robb, felt that claimant's need for the surgery was related to the 1983 incident, which is not the injury date under consideration in this case. Page 9 Additionally, there is evidence that claimant engaged in manual labor-type activities outside of his employment. These activities included chopping and selling firewood and building fences. As a result, it is concluded that claimant's disability is not causally related to the March 2, 1987 work-related accident. The March 2, 1987 produced a temporary aggravation of a preexisting condition. order THEREFORE, it is ordered: That claimant take nothing from these proceedings. That defendant shall pay the costs of this proceeding. Signed and filed this ____ day of July, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Patrick C Peters Attorney at Law 330 E Court Street Iowa City Iowa 52240 Mr Harry W Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines Iowa 50312 5-1800 Filed July 26, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : RICHARD P. PEEK, : : Claimant, : File No. 905119 : vs. : A R B I T R A T I O N : SHELLER-GLOBE CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendants. : ___________________________________________________________ 5-1800 Claimant sustained a temporary aggravation of a preexisting back injury which resulted in one day off of work. Claimant returned to work and did not seek medical treatment for the next one and one/half years. While off of work for unrelated surgery, he noticed back pain, and eventually underwent a lumbar laminectomy. The greater weight of the evidence showed that claimant's condition was not caused by the injury sustained at work. Claimant was involved in numerous manual labor duties outside of his employment. There was no evidence to show that claimant sustained anything more than a temporary aggravation of a preexisting condition. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT A. SLIFER, JR., : : Claimant, : : vs. : : File No. 905122 MONFORT PORK, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CITY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by the claimant, Robert A. Slifer, Jr., against his employer, Monfort Pork, and City Insurance Company, insurance carrier, defendants, as a result of an alleged cumulative injury which forced claimant to discontinue working on December 1, 1988. This matter came on for a hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa on November 19, 1990. A first report of injury was filed December 1, 1988. The record in this case consists of the testimony of the claimant; claimant's exhibits 1 through 10; and, defendants' exhibits 1 through 28. Official notice was taken of Agency File No. 814202, currently on appeal. issues According to the hearing assignment order, the following issues are presented for resolution: 1. Whether claimant suffered an injury which arose out and in the course of his employment. 2. Whether there is a causal relationship between the alleged injury and the disability. 3. Whether claimant is entitled to temporary disability benefits, healing period benefits, temporary partial disability benefits or total disability benefits. 4. Whether claimant is entitled to medical benefits pursuant to Iowa Code secton 85.27. 5. Claimant's workers' compensation rate. Page 2 6. Whether defendants is entitled to credit for benefits paid pursuant to Iowa Code section 85.38(2). findings of fact Claimant was born on September 8, 1953. He graduated from high school in 1972, but has not obtained any further education. In 1974, claimant began working for Swifts (now Monfort Pork) in Marshalltown, Iowa. For the next 11 years, claimant held numerous positions with the company. All of the positions required repetitive stooping, bending and lifting. In 1985, claimant sustained a back injury and was treated by Thomas Carlstrom, M.D. His injury resulted in an arbitration award of 25 percent industrial disability. (The award is on appeal). Claimant was off work until 1986, and then began a job trimming snouts with a Whizard knife. Claimant described this position as easier than prior positions with the company, and the job was within the medical restrictions placed upon him due to the 1985 back injury. These restrictions included no lifting over 40 pounds and no repetitive bending, lifting or stooping. It was also recommended that claimant have a rubber mat to stand on, but this was not provided. In late October, early November of 1988, claimant was placed in a different position, called a "cheeking" job. In this position, he used a sharp edge knife to cut the cheeks out of hog heads. Claimant described this work as harder than the snout trimming job. In addition to his duties on the cheeking job, claimant took on additional responsibilities by coming in early and setting up the room by placing metal shields and fiberglass cutting boards into their proper positions for the workers. He also placed metal tubs and buckets at the appropriate places. These responsibilities took approximately 20 minutes per day. Claimant had been preparing the production room for approximately one month prior to the alleged injury date of December 1, 1988. On December 1, 1988, while claimant was preparing breakfast at home, he sneezed or coughed "real hard" and immediately felt pain in his lower back, left leg and foot. He reported to work and worked approximately one-half hour. The pain became worse, and claimant proceeded to go see the nurse, who referred him to the company doctor, Darrell A. Jebsen, M.D. Dr. Jebsen's records, dated December 2, 1988, indicate that: "[T]he pt. maintains that he had disc surgery at 2 different levels at the time of his operation 2 yeras [sic] ago. He has evid. been on some type of back disability since but has had no major probs. until this acute flare beginning yesterday." Dr. Jebsen referred claimant to the Marshalltown Medical and Surgical Center, where low-back x-rays were performed. The reports indicate that the x-rays were essentially unremarkable. (Defendants' Page 3 Exhibit 5, Page 26A). Claimant was taken off work on December 2, 1988 and sought treatment from Mark P. Brodersen, M.D., who diagnosed acute L-5 radiculopathy. He referred claimant to Dr. Carlstrom, who performed surgery on January 5, 1989. Claimant was kept off work from December 2, 1988 through July 6, 1989. Once released to work, claimant returned to his snout trimming job at Monfort Pork. Currently, claimant's base pay is higher than his base pay prior to the injury. analysis and conclusions of law The dispositive issue to be decided is whether claimant suffered an injury which arose out of and in the course of his employment with Monfort Pork. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 1, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Claimant's argument revolves around the job duties he had undertaken during the month of November 1988. In addition to his snout trimming job, claimant had also been arriving approximately twenty minutes prior to his shift in order to prepare the room for the production workers. Claimant's additional job duties of preparing the production area for the line workers required him to perform repetitive bending and lifting of up to 40 lbs. His job as a snout trimmer required some bending and lifting (Transcript, pp. 46-47; def. ex. from case #814202 on appeal). Claimant testified he had constant back pain which continued when he changed to the cheeking job. Yet claimant continued to work on a full-time basis. Claimant also told Dr. Carlstrom that his back had been hurting prior to the December 1, 1988 incident. (Carlstrom Deposition, pp. 4 & 7). Page 4 However, claimant did not relay to Dr. Brodersen or Dr. Jebsen (the doctors he saw during the first several weeks after the injury) that he had had prior, constant back pain in late October and November of 1988 (Def. Ex. 3). Claimant has alleged a cumulative injury. A cumulative injury is one where the disability develops over a period of time, and the compensable injury itself occurs at a later time. McKeever Custom Cabinets v Smith, 379 N.W.2d 368, 373 (Iowa 1985). The injury occurs when, because of pain or physical inability, the claimant can no longer work. Id. at 374. In the instant case, it has not been shown that claimant's disability developed over a period of time. He performed his duties in the snout trimming job without incident. And, it has not been shown that claimant experienced back pain in performing the cheeking job, or in performing his additional job functions of preparing the production room. And, although claimant stated he had continual back pain, the history given to Dr. Carlstrom indicates that claimant "had been working for the past 20 months without significant difficulty." (Carlstrom Deposition, Ex. C). In evaluating the evidence presented, there are too many variables in the case to support a finding that his injury arose out of and in the course of his employment. Although Dr. Carlstrom connected the injury to claimant's work, even he could not stand firm on the opinion after reviewing records from Dr. Brodersen and Dr. Jepsen, which indicate that claimant did not have any complaints of back pain prior to the sneezing/coughing incident which directly precipitated the subsequent surgery. The undersigned finds that claimant has not sustained his burden of proving by a preponderance that his injury arose out of and in the course of his employment. order THEREFORE, it is ordered: That claimant take nothing from these proceedings. Signed and filed this ____ day of February, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Patrick L Wilson Attorney at Law 208 Masonic Temple Page 5 Marshalltown Iowa 50158 Mr Robert E McKinney Attorney at Law 480 6th Street PO Box 209 Waukee Iowa 50263 Mr Michael R Hoffmann Attorney at Law Breakwater Building 3708 75th Street Des Moines Iowa 50322 1402.30 Filed February 19, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : ROBERT A SLIFER, JR., : : Claimant, : : vs. : : File No. 905122 MONFORT PORK, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CITY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1402.30 Claimant failed to establish that his back condition arose out of and in the course of his employment. Claimant was at home fixing breakfast when he sneezed or coughed. He felt pain, and eventually underwent back surgery. The evidence showed that claimant had not complained of back pain prior to the incident, nor did he seek medical treatment for any back pain prior to the sneezing incident at home. Benefits denied. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES W. BEATTIE, : : Claimant, : : vs. : : File Nos. 782228 & 905131 FIRESTONE TIRE AND RUBBER CO.,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration upon the petitions of claimant, Charles Beattie, against his employer, Firestone Tire and Rubber Co., and its insurance carrier, Cigna, defendants. The cases were heard on June 12, 1990, in Des Moines, Iowa, at the office of the industrial commissioner. The record consists of the testimony of claimant and the testimony of Clark Borland, Jim Allpress and Richard Harter. Additionally, the record consists of joint exhibits A through R and claimant's exhibit 1. With respect to file number 782228, the matter had been dismissed by claimant during the proceedings. issue The issue to be determined is the nature and extent of claimant's permanent partial disability, if any. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant was 40 years old on the date of the hearing. He was married with two children. In July of 1971 claimant commenced his employment with defendant-employer. He had held a variety of positions. At the time of his injury claimant was working in the heavy duty department. He built all sizes of tires, but primarily assembled rear tractor tires. Claimant testified that he developed a problem with his right shoulder on January 5, 1987. He sought medical attention in the nurse's office. He was then referred to an orthopedic surgeon, William R. Boulden, M.D. In March of 1987 claimant had an impingement syndrome release on the Page 2 right shoulder. Subsequent to his surgery Dr. Boulden opined: The record indicates this patient underwent an impingement release back in March of 1987. We will not reiterate the entire history since this is documented well in previous correspondence. The patient states that his shoulder does not feel any better or has not demonstrated any more improvement than it was prior to the surgery. He continues to have pain up and across the upper trapezious area of the right side with the pain radiating into the cervical spine. He is also experiencing some pain down into the right wrist and arm. He has an occasional tingling over the last two digits of the right hand. Active range of motion of the right shoulder shows forward elevation to 150 degrees, extension to 40 degrees, abduction 140 degrees, external rotation is 80 degrees, and internal rotation is 40 degrees plus. On the basis of the range of motion measurements, the patient has incurred a 3 percent impairment to the right upper extremity. In view of the patient's neurologic complaints, specifically the tingling that is occurring over the last two digits, we would formally recommend a neurosurgeon consult simply to rule out any pathology in the cervical spine. (defendants' exhibit C, page 2) Claimant, in turn, was examined by David J. Boarini, M.D, a neurosurgeon. The results of Dr. Boarini's examinations revealed claimant had an unremarkable neurological exam. Dr. Boarini's tests did demonstrate some tenderness over the right shoulder both anteriorly and posteriorly. Claimant continued to experience difficulties. He was sent to another orthopedic surgeon, Stephen G. Taylor, M.D. Dr. Taylor provided a second opinion for which a second surgical procedure was necessary. Subsequent to the second surgery, Dr. Taylor rendered the following opinion: Your client, Charles Beattie, was treated in our office from March 1988 until he was last seen on March 2, 1989. Mr. Beattie was evaluated and treated for a chronic right shoulder problem which was diagnosed as rotator cuff tendonitis and impingement syndrome of the right shoulder. I feel this condition was caused by repetitive overhead use of his arms which was required in his work as a tire builder. Prior to being seen by me, Mr. Beattie had seen Dr. Boulden and had undergone a surgical procedure in March 1987. Mr. Beattie's workup included a normal shoulder arthrogram to rule out a rotator cuff tear. We Page 3 continued with conservative treatment with injections and anti-inflammatory medications but he never improved satisfactorily. Thus on November 28, 1988, a second surgical procedure or bursa resection and acromioplasty of the right shoulder was carried out. I continued to follow Mr. Beattie's progress until March 2, 1989. At that time he had regained nearly a full range of motion of the right shoulder but did continue to have some discomfort particularly with overhead use of the arms. At the time of his discharge, I recommended to Mr. Beattie that he not resume tire building or other similar work which would require repetitive lifting or overhead use of the arms. I feel these activities will likely aggravate or cause a reoccurrence of his shoulder problems. I also feel his shoulder condition and surgical procedures has resulted in a 5% permanent partial impairment of his shoulder. (defendants' exhibit A, page 2) Claimant returned to work at defendant-employer's establishment in January of 1989. He has been employed as a quality coordinator since that time. Claimant has not been involved with actual tire building since before his first surgery. conclusions of law The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitled claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily, 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he Page 4 has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). 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 he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his Page 5 affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). With respect to this case, the sole issue to address is the type of permanent partial disability which claimant has sustained. Claimant alleges, "[H]e has sustained a body as a whole injury and is entitled to have his injury evaluated industrially." Defendants maintain claimant has sustained a scheduled member injury to the right upper extremity. It has long been recognized that an injury to the shoulder is, "an injury to the body as a whole." Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (1982); also see Sample v. United Parcel Service, file 888801 (filed July 25, 1990). The facts in the instant case warrant a holding that claimant has sustained an injury to the body as a whole. The surgical incisions were made on the upper cavity. Claimant has been diagnosed as having an impingement syndrome. His injury is not confined to the right upper extremity. Claimant testified he has pain along the right shoulder joint, the top of his shoulder, and across the shoulder blade. He has inflammation in his shoulder joint, per Dr. Boulden. Definitely, claimant has sustained a permanent injury to the body as a whole. His disability is calculated by the industrial method. Claimant maintains there has been a loss of earning capacity as a result of his work injury. Claimant is restricted from resuming tire building or other similar work which will require repetitive lifting or overhead use of the arms. Claimant has returned to work, but not as a tire builder. Defendant-employer is commended for accommodating claimant within his restrictions. Claimant is now involved in quality control, a light duty position. It appears to be a stable job within the corporate structure, but per the opinion of vocational rehabilitation specialists, claimant is confined to medium level work with no overhead work. At some point, claimant may be assigned a medical placement job. Currently, claimant is earning the same hourly rate which he had earned as a tire builder. Whether claimant will ever earn less per hour is speculative at this juncture. All in all, it is the determination of the undersigned that claimant has sustained a 10 percent permanent partial disability to the body as a whole. His commencement date for these benefits is January 9, 1989, the date on which claimant returned to work. order THEREFORE, IT IS ORDERED: Defendants are to pay fifty (50) weeks of permanent partial disability benefits to claimant at the stipulated rate of three hundred eighty and 36/100 dollars ($380.36) per week commencing on January 9, 1989. Page 6 Defendants are to also pay healing period benefits from March 16, 1987 through August 9, 1987 and from November 28, 1988 through January 8, 1989, twenty-seven (27) weeks at the stipulated rate of three hundred eighty and 36/100 dollars ($380.36) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Defendants shall take credit for all benefits previously paid to claimant. Costs of this action are assessed to defendants. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1991. ______________________________ MICHELLE A. MCGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Donald G. Beattie Attorney at Law 204-8th St. SE Altoona, Iowa 50009 Mr. Marvin Duckworth Attorney at Law 2700 Grand Ave. STE 111 Des Moines, Iowa 50312 Page 1 51803 Filed February 26, 1991 Michelle A. McGovern before the iowa industrial commissioner ____________________________________________________________ : CHARLES W. BEATTIE, : : Claimant, : : vs. : : File Nos. 782228 & 905131 FIRESTONE TIRE AND RUBBER CO.,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51803 Claimant sustained a 10 percent permanent partial disability to the body as a whole as the result of a work injury to his shoulder. Claimant had sustained a loss of earning capacity, but had returned to his employment at the same rate of pay, even though he returned to a different position. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES W. BEATTIE, : : Claimant, : : File No. 905131 vs. : : R E V I E W FIRESTONE TIRE AND RUBBER CO., : : R E O P E N I N G Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in review reopening brought by Charles W. Beattie, claimant, against Firestone Tire and Rubber Company, employer, and CIGNA, insurance carrier, for benefits as a result of an injury that occurred on January 5, 1987. A hearing was held in Des Moines, Iowa on February 2, 1993 and the case was fully submitted at the close of the hearing. Claimant was represented by Donald G. Beattie. Defendants were represented by Marvin E. Duckworth. The record consists of the testimony of Jim Allpress, safety engineer and workers' compensation coordinator, Lamar Edwards, labor relations manager, Charles W. Beattie, claimant, and joint exhibits 1 through 10. Claimant's attorney submitted an excellent trial brief at the time of the hearing. issues The sole issue for determination at the time of the hearing as presented by the parties on the prehearing conference report, the hearing assignment order and the hearing report was whether claimant had sustained a change of economic condition since the arbitration proceeding which was held on June 12, 1990. As a result of that proceeding an arbitration decision was filed on February 26, 1991, which determined that claimant had sustained a 10 percent industrial disability to the body as a whole and claimant was awarded 50 weeks of permanent partial disability benefits. At this hearing defendants conceded that claimant did in fact sustain a change in economic condition and that claimant was, in fact, entitled to additional industrial disability benefits and that they were in the process of paying claimant an additional 50 weeks of permanent partial Page 2 disability benefits based upon additional 10 percent industrial disability. The parties agreed at the hearing that the sole issue for determination is how much industrial disability, if any, that claimant is entitled to taking into consideration the economic change of condition which has occurred. findings of fact industrial disability It is determined that claimant has sustained an overall industrial disability of 35 percent to the body as a whole and is entitled to 175 weeks of permanent partial disability benefits. It is further determined that defendants are entitled to a credit for 50 weeks of permanent partial disability benefits paid pursuant to the previous award and they are also entitled to a credit for the amounts they have voluntarily paid to claimant as of the time of this hearing for the increase in industrial disability sustained because of this change of condition. The previous deputy made her award based upon the following findings: "Claimant maintains there has been a loss of earning capacity as a result of his work injury. Claimant is restricted from resuming tire building or other similar work which will require repetitive lifting or overhead use of the arms. Claimant has returned to work, but not as a tire builder. Defendant-employer is commended for accommodating claimant within his restrictions. Claimant is now involved in quality control, a light duty position. It appears to be a stable job within the corporate structure, but per the opinion of vocational rehabilitation specialist, claimant is confined to medium level work with no overhead work. At some point, claimant may be assigned a medical placement job. Currently, claimant is earning the same hourly rate which he had earned as a tire builder. Whether claimant will ever earn less per hour is speculative at this juncture. All in all, it is the determination of the undersigned that claimant has sustained a 10 percent permanent partial disability to the body as a whole. His commencement date for these benefits is January 9, 1989, the date on which claimant returned to work." Subsequent to the previous award claimant was, in fact, assigned to a medical placement job. On June 25, 1991, claimant was transferred from the quality control coordinator job that he was performing at the time of the previous hearing to a job called inventory scheduling. The previous deputy said that the quality control coordinator job appeared to be stable but in reality it was not. The rate of pay for the quality control coordinator job was Page 3 $20.818 per hour and the rate of pay for the inventory scheduling job was $12.412 per hour (Ex. 7). This constitutes a 40 percent actual loss of earnings. Claimant did not prove that there was a conspiracy to maintain his pay at the same rate as a tire builder until after the previous hearing was over and then reduce his pay substantially after the hearing (Exs, 2, 3, 4 & 8). As the previous deputy pointed out, "At some point, claimant may be assigned a medical placement job." (Decision of February 26, 1991, page 5). This has now occurred. Subsequent to the hearing a labor management agreement provided that no employee can keep the quality control coordinator job for more than one year. Thus, it was necessary to find other employment for claimant within the company or to give up his employment with the employer altogether. The evidence shows that the employer was very accommodating in assisting claimant in finding a job which he could perform (Ex. 8). Claimant was offered a jeep driver job, but he thought this would be too difficult for his right shoulder condition and the employer offered him other opportunities. Claimant tried the carting job but after two days of work found that he was unable to perform this job. The doctor agreed with claimant, and employer, with the agreement of claimant and working with the union representative, placed claimant in his current job of inventory scheduling. Thus, claimant did not prove that these medical placement transfers, which were recognized at the time of the previous decision, were malicious or preconceived to reduce claimant's award at the previous hearing. Nevertheless, claimant has, as a matter of fact, sustained a 40 percent actual loss of earnings, as proved by the employer's own records (Ex. 7; Ex. 9, p. 15). At the same time, claimant was not forced out into the competitive labor market with a restriction of no repetitive lifting or overhead use of the arms and a limitation to medium work only. The vocational rehabilitation specialist said that claimant's future employment is confined to medium level work. These limitations would constitute a severe loss of earning capacity for a 40-year-old employee who was previously near the peak of his earning capacity at the time of this injury. As the previous deputy pointed out defendant-employer is commended for accommodating claimant within his restrictions. Also, claimant maintains excellent employee benefits with this employer which he might not find reentering the labor market as an injured, restricted and permanently disabled applicant for jobs in competition with younger, healthier prospective employees. At the same time, if defendant-employer had not accommodated claimant his industrial disability would have been substantially higher. Weighing these factors together and considering all of the other industrial disability factors in this case it is determined that claimant has sustained an overall industrial disability and loss of earning capacity of 35 percent of the body as a whole. Even though his actual earnings loss is 40 Page 4 percent, claimant's loss of earning capacity is reduced by the fact that he has been accommodated by defendant-employer. Moreover, claimant testified at hearing that he felt that his job was secure. At the same time, it was generally conceded by both parties that claimant will never be able to perform incentive work again and that he will never be able to rise above jobs which pay currently $12 to $13 per hour with this employer. There was evidence that he might be able to perform the calendaring job which pays $15 per hour. Whether he met the total job requirements and whether he had the seniority to obtain a calendaring job was not established. It was agreed that claimant had not bid on a calendaring job, nor had it been offered to him. In conclusion it is determined that claimant is entitled to an overall award of 175 weeks of permanent partial disability benefits based upon an overall 35 percent industrial disability to the body as a whole. The previous deputy stated, "Whether claimant will ever earn less per hour is speculative at this juncture." The speculation has ended at the present time and claimant is earning 40 percent less after he was assigned to a medical placement job when the quality control coordinator job proved to be unstable after the previous hearing. conclusions of law Wherefore, based upon the foregoing and following principles of law these conclusions of law are made. That claimant has sustained the burden of proof by preponderance of the evidence, and defendants have agreed, that claimant did sustain a change of economic condition since the previous hearing and award. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). That claimant has sustained the burden of proof by preponderance of the evidence that he has sustained a 35 percent industrial disability to the body as a whole and that he is entitled to 175 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That defendants are entitled to a credit for 50 weeks of permanent partial disability benefits paid to claimant pursuant to the previous award and in addition defendants are entitled to so much of the additional voluntary payments that they have made as of the date of this decision. order THEREFORE, IT IS ORDERED: That defendants pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the stipulated rate of three hundred eighty and 36/100 dollars ($380.36) per week in the total amount of sixty-six thousand five hundred sixty-three dollars Page 5 ($66,563) commencing on January 9, 1989. That defendants are entitled to a credit for fifty (50) weeks of permanent partial disability benefits paid to claimant at the stipulated rate of three hundred eighty and 36/100 dollars ($380.36) per week pursuant to the previous award in the total amount of nineteen thousand eighteen dollars ($19,018) and they are entitled to an additional credit for whatever they have voluntary paid to claimant prior to this hearing. All accrued payments are to be paid in a lump sum. Interest will accrue pursuant to Iowa Code section 85.30 but only commencing with the date of this decision. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). That the costs of this proceeding are charged to defendants pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Donald Beattie Attorney at Law 204 8th Street, S.E. Altoona, IA 50009 Mr. Marvin Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Ave. Des Moines, IA 50312 2905 Filed February 9, 1993 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : CHARLES W. BEATTIE, : : Claimant, : : File No. 905131 vs. : : R E V I E W FIRESTONE TIRE AND RUBBER CO., : : R E O P E N I N G Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2905 Defendants conceded that claimant had sustained a change of economic condition after the previous arbitration hearing and even voluntarily had begun paying claimant an additional 50 weeks of industrial disability in addition to the 50 weeks that were awarded by the previous deputy. The issue was how much, if any, industrial disability should be awarded. The previous deputy stated (1) claimant's job at the time of that hearing was stable, (2) that claimant was subject to medical placement and (3) his future earnings were speculative. After the previous hearing the stable job was removed from him pursuant to a medical placement and the speculation over future earnings ended because employer's records demonstrated that claimant had sustained a 40 percent loss of actual earnings and was limited to about 40 percent loss of earnings permanently. Claimant was awarded industrial disability of 35 percent, less credit for what he had been paid. Employer did accommodate claimant. Claimant felt his current job was secure. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANCES WILSON, Claimant, File No. 905134 vs. A R B I T R A T I O N CITY OF DAVENPORT, D E C I S I O N Employer, F I L E D and MAR 28 1990 EMPLOYERS REINSURANCE CORP., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Frances Wilson, against the City of Davenport, employer, and Employers Reinsurance Corporation, insurance carrier, defendants, to recover medical benefits only as a result of an injury sustained on March 4, 1986. This matter came on for hearing before the deputy industrial commissioner in Davenport, Iowa, on March 23, 1990. The record consists of the testimony of the claimant. There are no exhibits. ISSUE The only issue the parties set out in the prehearing report for resolution is whether claimant is entitled to medical benefits under Iowa Code section 85.27, which involves only the $1,174 bill of a Dr. Wood, a doctor of chiropractic medicine. At the beginning of the hearing, claimant's motion to exclude respondents' witnesses and exhibits filed March 16, 1990 was sustained by the undersigned deputy except for witness Dave Geisler. The undersigned deputy allowed one employee of each defendant to testify. Dave Geisler was an employee of defendant employer. Paul Mehuys was not an employee of either defendant. Geisler was not present to testify. REVIEW OF THE EVIDENCE Claimant testified she has been employed as a corporal in the police department for the City of Davenport for thirteen years as of July 1990, working in the patrol division. Claimant said her work involves riding in a police car and responding to calls. Claimant said she completed four years of high school, attended four years at Hawkeye Tech, has a bachelors degree in criminal justice from St. Ambrose College and is currently working on a masters degree in criminal justice administration at Western Illinois University. Claimant was injured on March 4, 1986 when she answered a call involving a burglary suspect. Claimant testified that in the process of responding, her car was ultimately struck broadside by a car driven by the suspect. She said her car was completely turned around by the collision resulting in her radio being knocked off. She said she bruised her knee and injured her back. Claimant was taken by ambulance to the hospital. Claimant acknowledged that Dr. J. H. Sunderbruch was the employer-chosen doctor. Claimant said Dr. Sunderbruch did not seem to be helping her. She indicated she had seen him three times and he would not listen to her. Claimant said she told her superior officer, a Sergeant Howard, within two weeks of her injury that she was going to see her own doctor, Dr. Schreck. Claimant said she was told by Dr. Schreck that if she was seeing a chiropractor and getting relief, to go ahead. Claimant emphasized Sergeant Howard also knew of Dr. Wood. Claimant related she had prior back problems and had been receiving treatment from Dr. Wood for years. Claimant said she was actually due for another monthly adjustment from Dr. Wood due to prior problems when the March 4, 1986 injury occurred. Claimant said she also told her other two supervisory sergeants, Yearington and Ferdenburg, that Dr. Sunderbruch was not helping her. Claimant emphasized these officers told her to get the help she needed. Claimant stated all her treatments after March 4, 1986 were the result of her March 4, 1986 injury from the car collision. Claimant related she couldn't stand up or sit for the eight hours she would normally ride in the car wearing her gun belt and performing her duties. Claimant emphasized that Dr. Wood helped her and was responsible for claimant getting back to work and helping her get better quicker. Claimant stated she thought she had the authority of defendant employer when three supervisory or superior officers told her to get the medical help she needed. Claimant said that in June or July 1986, after she understood defendant employer contended claimant did not have authority to see Dr. Wood, she again talked to Sergeant Ferdenburg and Yearington. Claimant explained they told her it was okay to see Dr. Wood and if they needed to grieve the issue to the union, they would. Claimant said she and the above two officers are members of the union. Claimant acknowledged she did not talk to any administrative personnel about Dr. Wood. Claimant also said she did not tell Dr. Sunderbruch that she was seeing a chiropractor. Claimant said her shift supervisor, Sergeant Morrissey, also was aware of claimant's chiropractic treatments with Dr. Wood. Claimant acknowledged there have been past problems with the city paying for chiropractic treatment. APPLICABLE LAW AND ANALYSIS Iowa Code section 85.27 provides, in part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. The issue in this case is very limited. Defendants contend they should not have to pay Dr. Wood's bill for the $1,174 for chiropractic treatment of claimant. There is no question of causal connection, reasonableness or necessity regarding the bill and treatment. Defendants contend claimant had no authority. It is obvious defendant employer believes the authority can only come from some administrative personnel or the original defendant employer-chosen doctor. Defendants do not believe a supervisor or superior officer of the claimant, like a police sergeant, has any authority to give claimant an okay to see a doctor. Claimant repeatedly testified she had authority from three to four officers who were over her and in a supervisory or superior position. Claimant had prior medical experience from Dr. Wood. He helped her in the past. Claimant was convinced Dr. Wood's treatment after the March 4, 1986 accident helped her get back to her job. She felt Dr. Sunderbruch was not helping her and would not have gotten her back to work as soon. It is clear and convincing that defendant employer did not pay chiropractor bills. It would be expecting too much to think Dr. Sunderbruch, an M.D., would suggest or refer claimant to a chiropractor. It isn't hard to presume defendants' own doctor probably knew defendants' position on chiropractors. The majority of the medical profession's (M.D.'s) attitude toward chiropractors is generally known. The undersigned is surprised this case has come this far. There appears to be animosity in this case, greater than should exist, over a $1,174 chiropractor bill. Claimant is a well qualified and educated peace officer with good job motivation. Defendants should foster goodwill and act reasonably to keep officers like claimant, with the education and motivation she has, rather than fight an employee over an issue of this kind. Claimant is entitled to rely upon the authorization of superior officers. The law does not say who in the chain of command must give the authorization. The law does not distinguish between police officers or nonpolice officers versus administrative personnel when the employee who is injured is from the police department itself. The undersigned finds that claimant had proper authority to receive care and treatment from Dr. Wood. Dr. Wood also helped claimant to return to work faster than she would have if claimant had continued solely with Dr. Sunderbruch. Defendants are responsible for the bill of Dr. Wood in the amount of $1,174. If defendants feel only a top administrative person can give authority under Iowa Code section 85.27, then that issue is between the city and the various departments, including the police department. The dispute in this current case should be between the city and the police department and the authority of their supervisor or superior officers and not involve the claimant who has the right to rely upon the authority of her superior and/or supervisory officers. FINDINGS OF FACT 1. Claimant received authority to seek chiropractic treatment from her fellow police officers who were supervisory and/or superior in rank to claimant. 2 Claimant had authority from defendant employer to seek chiropractic treatment from a Dr. Wood. 3. Supervisory or superior police officers have authority to give their subordinate officer permission under Iowa Code section 85.27 to seek medical help, including chiropractic care. 4. Defendants are responsible for claimant's $1,174 chiropractic bill with Dr. Wood. CONCLUSION OF LAW Defendants are responsible for Dr. Wood's bill in the amount of $1,174. ORDER Defendants shall pay Dr. Wood's bill in the amount of one thousand one hundred seventy-four dollars ($1,174.00). Defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 28th day of March, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William Bribriesco Attorney at Law 2407 18th St Ste 202 Bettendorf, IA 52722 Ms Mary J. Thee Staff Attorney City Hall Legal Department 226 W Fourth St Davenport, IA 52801 2500 Filed March 28, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANCES WILSON, Claimant, File No. 905134 vs. CITY OF DAVENPORT, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS REINSURANCE CORP., Insurance Carrier, Defendants. 2500 Held that claimant, a corporal in the defendant employer police department, was able to rely on the permission of her supervisory and/or superior officers to see a chiropractor with whom claimant had been treating for other back problems prior to her current injury. Four supervisors and/or superior in rank police sergeants okayed claimant's seeing a chiropractor. Only issue was 85.27 benefits (authorization). Defendants ordered to pay claimant's $1,174 chiropractor bill.