BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ THOMAS E. RUGGLES, Claimant, vs. File No. 906661 CARRIKER FORD, INC., A P P E A L Employer, D E C I S I O N and FARM BUREAU, 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 October 28, 1993 is affirmed and is adopted as the final agency action in this case with the following additional analysis: It is noted that entitlement to or calculation of interest was not an issue that was raised in the arbitration proceeding which culminated in an arbitration decision filed May 18, 1993. That decision directed that interest was to be paid pursuant to Iowa Code section 85.30. Defendants did not appeal that decision and the arbitration decision became final by operation of Iowa Code section 17A.15(3). Without deciding the issue of jurisdiction there is a question whether this agency now has jurisdiction to decide the issue defendants raise on how interest on benefits claimant is entitled to is to be calculated. For the reasons stated in the deputy's decision filed October 28, 1993 unpaid benefits for permanent partial disability in an arbitration proceeding accrue from the onset of permanency. In this case because claimant had no healing period the onset of permanency was the date of claimant's injury. Claimant was entitled to permanent partial disability beginning the date of the injury (the onset of permanency). The unpaid permanent partial disability benefits accrue interest from the date they were due. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Page 2 Signed and filed this ____ day of March, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Ms. Angela A. Swanson Attorney at Law 3400 University Avenue West Des Moines, Iowa 50266 Mr. Harold B. Heslinga Attorney at Law 118 North Market St. Oskaloosa, Iowa 52577 5-4001; 5-2909 Filed March 17, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ THOMAS E. RUGGLES, Claimant, vs. File No. 906661 CARRIKER FORD, INC., A P P E A L Employer, D E C I S I O N and FARM BUREAU, Insurance Carrier, Defendants. ____________________________________________________________ 5-2909; 5-4001 Interest on claimant's permanent partial disability benefits began to run on the onset of permanency. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : THOMAS E. RUGGLES, : : Claimant, : : vs. : : File No. 906661 CARRIKER FORD, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARM BUREAU, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Thomas E. Ruggles against his employer, Carriker Ford, Inc., and its insurance carrier, Farm Bureau Mutual Insurance Companies. Claimant sustained a work-related injury on January 3, 1989, and seeks additional workers' compensation benefits. The record consists of testimony from the claimant and from claimant's wife, Janet Ruggles; joint exhibit 1; and, defendants' exhibits 1 through 5. The parties submit the following issues for resolution: 1. Whether claimant's injury is a cause of temporary or permanent disability; and, 2. If claimant has sustained a permanent injury, the extent of his disability. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant was born on January 10, 1956. At the time of the hearing, he was 37 years of age. Claimant is married and has two children, ages two and six. At the time of the injury, claimant had one dependent child. After graduating from high school, claimant enlisted in the U.S. Army. He served for a two year period and received an honorable discharge in 1976. While serving, claimant received training in the mechanical field. Claimant was married in 1977 and soon began working for Century Motors in Sigourney, Iowa. His job duties included Page 2 providing maintenance and repair work on used cars such as body work, mechanical work and cleaning up the cars so that they could be sold. Claimant received technical training through seminars and classes provided by General Motors. Claimant worked for Century Motors for one year, and then moved to Oskaloosa and began working for Van Zee's Motors, a local car dealership. He performed the same type of job duties as he did for Century Motors, and was sent to schools and seminars sponsored by Ford so that he could repair Ford vehicles. Claimant worked for Van Zee's for almost four years, and then began working for the defendant, Carriker Ford, Inc. In 1981, claimant's job classification was that of general mechanic. He received additional education and obtained a certification in general engine repair and electronic repair work. On January 3, 1989, claimant was examining an engine which was on a stand located in the shop area. He was struck by a car driven by the service manager. The rear bumper of the vehicle hit claimant in the left hip and leg area and threw claimant 10 to 15 feet. Claimant landed on his feet. Claimant sought treatment from Tony R. Kunz, M.D., a physician with the Family Medical Center in Oskaloosa, Iowa. Dr. Kunz's notes are found at pages 41 through 44 of the joint exhibits. His first report, dated March 23, 1990, indicates that claimant visited the clinic complaining of blurry vision and neck problems with tingling down his right arm. Claimant received physical therapy, traction and pain medications in April of 1989, along with a CT scan of his head which was done on April 11, 1989. Dr. Kunz recommended an MRI for further evaluation (Jt. Ex. 1-O). Additional notes from Dr. Kunz, labeled defendants' exhibits 5-G through I, indicate that claimant saw Dr. Kunz in January and April of 1989. In November of 1989, claimant presented to Dr. Kunz with an exacerbation of neck problems but did not relate specific trauma other than the original injury which occurred in January of 1989. Notes from the physical therapist indicate that on May 25, 1989, claimant was pain-free with cervical range of motion within normal limits. Claimant was discharged from the Mahaska County Hospital Outpatient Physical Therapy Unit (defendants' Exhibit 5-F). In September of 1990, claimant began seeking treatment from Garry Teigland, D.O., and Michael Pogel, M.D. Dr. Pogel was of the opinion that claimant had sustained an aggravation to degenerative changes at the C4-5 level in the neck. He did not feel claimant had sustained a concussion from the January 1989 incident. He was unable to say that claimant had sustained any permanent impairment (Def. Ex. 5- E). Dr. Teigland, who treated claimant for depression, felt that the depression was secondary to the accident. Dr. Teigland prescribed antidepressants and follow-up treatment Page 3 from a psychiatric standpoint (Def. Ex. 5-A through 5-C). Claimant next saw Dr. Teigland on July 23, 1992. The notes indicate that claimant continued to feel depressed due to chronic pain in his neck. Symptoms included psychomotor retardation and slow speech (Jt. Ex. 1-L). In November of 1992, claimant returned to Drs. Pogel and Teigland. Dr. Pogel evaluated claimant's physical condition and found that an MRI scan taken after the accident showed degenerative disc protrusion at the C4-5 level. Dr. Pogel recognized that claimant's accident at work aggravated his condition, but was unable to provide any permanent impairment to claimant's condition (Def. Ex. 5-E). In August of 1991, Dr. Pogel recognized that claimant would continue to encounter persistent problems with his neck due to degenerative changes but that his most debilitating problem was his depression (Def. Ex. 5-D). In August of 1991, Dr. Teigland, who was treating claimant's depression, believed that his condition was secondary to the accident. Claimant's condition was controlled with Amitriptyline (Def. Ex. 5-A). In November of 1992 and again in January of 1993, claimant returned to Dr. Teigland for additional treatment. At this time, claimant's complaints centered around his lack of ability to concentrate and his lack of energy. Dr. Teigland gave claimant samples of Prozac (Jt. Exs. 1-J through 1-K). In November of 1992, claimant returned to Dr. Pogel for an evaluation and calculation of impairment rating. Following a full examination, which included range of motion tests, and using the AMA Guides to the Evaluation of Permanent Impairment, Dr. Pogel found that claimant displayed a limitation of lateral flexion, degenerative disc disease of moderate to severe nature, documented pain and rigidity with or without muscle spasm, and was of the opinion that claimant had sustained a permanent impairment of 7 percent for the whole body. This rating was confirmed in a letter to the insurance company in March of 1993 (Jt. Ex. 1-H through 1-I). In April of 1993, claimant was sent to the clinic for persistent pain and injury in West Des Moines, Iowa. He was scheduled for a series of evaluations including a neurologic examination with David Friedgood, D.O.; consultation with a rehabilitation specialist, Clark H. Williams, M.S. C.I.R.S.; a functional capacity assessment by Martin Ungs, M.P.T., P.T.; and, a neuropsychological assessment by Jim Andrikopoulos, Ph.D. J. Dan Smeltzer, M.A., performed the initial pain disability screening evaluation. He found that claimant did not exhibit an emotional focus on pain but that he had undergone a change in his lifestyle in that social activities had been decreased. His impression was that claimant suffers from a moderate chronic pain syndrome secondary to intractable neck pain. He did not believe claimant would become pain disabled and recommended claimant continue with psychological intervention addressing the Page 4 emotional and behavioral consequences of intractable pain. He also recommended behavioral and stress management oriented therapy (Jt. Ex. 1-G). Dr. Friedgood's reports are dated April 9, April 21, and April 30, 1993. Dr. Friedgood performed a physical examination with full range of motion in his cervical spine. Reflexes were normal and his mental status testing showed claimant to be alert and well oriented. Dr. Friedgood's impression was that claimant displayed a normal neurologic examination, and he was unable to determine why claimant complained of aches and pains as well as posttraumatic depression. Dr. Friedgood ordered an MRI scan of the brain to determine if claimant had a structural brain disorder, and he also recommended a series of metabolic studies to determine any abnormalities which would account for the psychologic symptoms. He also recommended that claimant continue follow-up visits with a neurologist and psychiatrist (Jt. Ex. 1-C). Joint exhibit 1-B indicates that Dr. Friedgood had completed his evaluation of claimant. The MRI scan of the brain was normal although it did evidence an incidental pineal cyst which was of no clinical significance. All metabolic studies were normal and Dr. Friedgood was of the impression that claimant had suffered a head injury in 1989 and now suffered from posttraumatic depression (Jt. Ex. 1- B). In a follow-up reported dated April 30, 1993, Dr. Friedgood indicated that claimant had suffered no permanent neurologic damage due to his head injury caused by the accident at work in 1989. He deferred to the psychiatrist for a specific psychiatric diagnosis (Jt. Ex. 1-D). A report from Clark Williams, a vocational rehabilitationist, can be found at joint exhibit 1-F, and is dated April 9, 1993. This report focuses on claimant's educational and work background and it indicates that he is able to perform his duties as a general mechanic and electronic technician with Carriker Ford, Inc. Claimant stated that due to his seniority, he was able to pick and choose the car repair situations in which he gets involved and tries to choose those that are less physically demanding upon him due to his present physical condition. Claimant is very knowledgeable about different types of equipment and tools, and has taken courses in gunsmithing. He hopes to obtain a license for buying and selling firearms. Mr. Williams indicated that claimant presented a good work record and had transferable skills associated with electronics and automobile computer expertise. Although Mr. Williams indicated that with retraining, claimant would be able to become a marketable commodity in computer repair, tool and die or machine shop jobs or locksmithing or gun repair programs, it was inappropriate to speculate on claimant's alternative jobs because Mr. Williams had not reviewed the medical and psychological workups. Additionally, claimant was continuing with his employment with Carriker Ford which apparently Mr. Williams thought was conducive to claimant's physical and mental state (Jt. Ex. Page 5 1-F). Martin Ungs performed a work capacity assessment on April 13, 1993. After an examination which tested claimant's range of motion, strength and neurological responses of the cervical spine and functional testing, it was determined that claimant could lift in the medium to heavy category of work as demonstrated by an occasional floor-to-knuckle lift of 78 pounds; knuckle-to-shoulder lift of 58 pounds; shoulder-to-overhead lift of 50.5 pounds; and, carrying 58 pounds 100 feet. Nonmaterial handling activities showed that claimant was unrestrictive for trunk bending; overhead reaching; squatting; kneeling; stooping; crouching; ladder climbing; and, stair climbing and walking. The overall results of the assessment confirmed that claimant could work in the medium category for lifting and was able to lift 20 pounds on a frequent basis (34 to 66 percent of the work day) and 20 pounds on a constant basis (67 to 100 percent of the workday). Finally, it was determined that claimant had some restriction of the cervical range of motion (Jt. Ex. 1-E). Finally, a report from Jim Andrikopoulos who performed a neuropsychological evaluation indicates that Dr. Andrikopoulos felt claimant was superficially cooperative throughout the testing. Results of the first 370 items of the MMPI II and standard clinical skills indicated that claimant did not project a profile suggestive of depression, anxiety or gross psychopathology. Claimant's performance on a memory test was marginal and Dr. Andrikopoulos felt that claimant's performance was disproportionate to the medical findings. His overall impression was that claimant was a malingerer and from the clinical interview, behavioral observations and personality testing, he felt that claimant did not show signs of clinical depression, anxiety or gross psychopathology. Finally, it was felt that claimant was feigning cognitive symptoms and exaggerating physical or psychological symptoms. Dr. Andrikopoulos told claimant he did not feel that claimant was depressed and that he should reevaluate with his psychiatrist if continued medication was necessary. Dr. Andrikopoulos did not submit any recommendations at this time (Jt. Ex.1-A). Page 6 ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is whether claimant is entitled to temporary total or permanent disability benefits. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The 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). 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). Temporary total or temporary partial disability benefits are paid until the injured worker has returned to work, or is medically capable of returning to employment that is substantially similar to the employment in which the worker was engaged at the time of the injury, whichever occurs first. See, Iowa Code section 85.33. Other than time taken to attend doctor appointments, claimant did not miss any work. Therefore, he is not entitled to any healing period, temporary total or temporary partial disability benefits. And, even though the greater weight of the evidence reveals that claimant did undergo physical therapy and extended medical treatment, he was able to continue to work at his regular job while undergoing the same. As a result, it is found that claimant is not entitled to any healing period benefits. The next issue to address is whether claimant has sustained an industrial disability. Claimant is 37 years old. He graduated from high school in 1974. Immediately following his graduation from high school, claimant enlisted in the U.S. Army and served for two years. He received an honorable discharge in 1976. Much of claimant's training while in the army centered around mechanical training. Page 7 For the past 16 years, claimant has worked for various car dealerships as a mechanic. He has received technical training through General Motors and Ford, and he possesses special skills in general engine repair and electronic repair work. Claimant received certification from the Ford Company in 1985 which has enabled him to be proficient in repairing different types of Fords and Mercurys. Claimant's physical condition prior to the accident was good, if not excellent. He was involved in an jeep accident while in the army, and suffers periodic bouts of low back pain but did not receive any disability or pension payments due to the injury. Claimant's physical condition since the work injury has been bothersome to him. He has chronic pain and limited range of motion in his neck. Physical therapy, a three week program which was administered shortly after the accident, provided temporary relief. Several physicians associated with claimant's case, either by way of treatment or evaluation, have concluded that he is suffering from depression associated with chronic pain. One physician has stated that claimant is feigning his depression. An injured worker's mental state is but one factor to be considered when evaluating an industrial disability, or lack of earning capacity. While there is ample evidence in the record to find that claimant's physical injury has caused depression, it is difficult to find that his mental state had a large impact on his earning capacity. Much to the credit of claimant's work ethic, he has not missed any time from work (except to attend periodic doctor appointments) and continues to perform his regular job duties. Claimant has seniority at the shop and he is able to accept or decline certain other assignments which he feels he could not perform due to the pain in his neck. The employer has apparently acquiesced in this practice, and continues to employ the claimant. Currently, the claimant earns approximately $23,539 per year. His earnings have increased steadily due to cost of living increases. Claimant is also able to perform some jobs associated with construction of a new home. After considering all of the factors that are used when evaluating an industrial disability, including claimant's current job duties; the employer's ongoing attempts to accommodate any physical restrictions he may have; claimant's increase in his actual earnings; claimant's motivation to continue to work; evaluations from physicians and therapists assigned to the case; claimant's permanent impairment rating; and, claimant's past and present physical condition, it is concluded that he has sustained a 10 percent industrial disability. ORDER THEREFORE, it is ordered: Page 8 That defendants shall pay claimant permanent partial disability benefits totaling fifty (50) weeks at the rate of two hundred fifty-two and 24/100 dollars ($252.24) per week beginning January 4, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein a set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harold B Heslinga Attorney at Law 118 N Market St Oskaloosa IA 52577 Ms Angela A Swanson Attorney at Law 5400 University Ave West Des Moines IA 50265 5-1803 Filed May 18, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : THOMAS E. RUGGLES, : : Claimant, : : vs. : : File No. 906661 CARRIKER FORD, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARM BUREAU, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant awarded 10% industrial disability based on a 7% functional impairment of the cervical spine; documented signs of depression; ability and opportunity to return to prior job; increase in actual earnings; and, employer's willingness to cooperate. 5-4001; 5-2909 Filed October 25, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : THOMAS E. RUGGLES, : : File No. 906661 Claimant, : : vs. : E X P E D I T E D : CARRIKER FORD, INC., : H E A R I N G : Employer, : D E C I S I O N : and : (343 IAC 4.44) : FARM BUREAU, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2909; 5-4001 Interest on claimant's permanent partial disability benefits began to run on the onset of permanency. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : THOMAS E. RUGGLES, : : File No. 906661 Claimant, : : vs. : E X P E D I T E D : CARRIKER FORD, INC., : H E A R I N G : Employer, : D E C I S I O N : and : (343 IAC 4.44) : FARM BUREAU, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is an expedited proceeding filed pursuant to 343 IAC 4.44 et. seq. An arbitration hearing was held on May 3, 1993; and a decision was filed on May 18, 1993. The decision awarded claimant permanent partial disability benefits and interest. Claimant and the defendants are unable to agree on the amount of interest. While claimant certified that the proceeding was an auxiliary proceeding as governed by 343 IAC 4.44 (1) (k), (l) or (m), the only issue presented to the undersigned deputy was whether interest on the award should run from the date of the injury, or from the date claimant received an impairment rating. A hearing was held and audio-taped on October 19, 1993. FINDINGS OF FACT The undersigned adopts the findings of facts as set forth in the arbitration decision, with the following additional information. Defendants paid the costs of claimant's medical treatment, and continue to pay for costs associated with his on-going care for depression. ANALYSIS AND CONCLUSIONS OF LAW The sole issue in the case is whether interest on the award should run from the date of the injury (as claimant underwent no healing period), or from the date claimant received an impairment rating. Iowa Code section 85.30 states, in relevant part: Compensation payments shall be made each week Page 2 beginning on the eleventh day after the injury, and each week thereafter during the period for which compensation is payable, and if not paid when due, there shall be added to the weekly compensation payments, interest at the rate provided in section 535.3 for court judgments and decrees. The workers' compensation act is to be liberally construed in favor of the injured worker, and any doubt in its construction is resolved in favor of the employee. See, Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 459; 127 N.W.2d 636, 639 (1964). To substantiate his position that the interest on the award should be calculated from the date of the hearing, claimant relies on Teel v. McCord, 394 N.W.2d 405 (1986). In Teel, claimant sustained a severe burn injury while on the job. His healing period was interrupted by several returns to work and surgeries. The first time claimant returned to work was on May 7, 1974. More than six years after the injury, the extent of his disability was determined. Two years after the extent of the disability (impairment) was medically determined, a hearing was held before the agency, and claimant was awarded 150 weeks of permanent partial disability compensation. The court analyzed both sections 85.30 and 85.43(1) to determine that "the interest on [claimant's] award for permanent partial disability became due when he returned to work on May 7, 1974." Teel v. McCord, 394 N.W.2d 405, 407 (1986). In the case at bar, defendants argue that claimant was never in a healing period because after he was injured, he continued to work. Moreover, the authorized treating physicians were never able to determine that claimant had sustained a permanent impairment. The agency has recently ruled that interest on unpaid benefits accrues from the onset of permanency, and not from the date claimant was given a permanency rating by a doctor. See, Bevins v. Farmstead Foods, et al., (App. Decsn., file nos. 834865, 881784, 877458 and 888705, filed November 26, 1991). This is so even if claimant did not undergo a healing period. Brincks v. Case Power and Equipment (App. Decsn., file no. 843233, filed April 18, 1990). As a result, the interest on claimant's award runs from the date of the injury. ORDER THEREFORE, it is ordered: That defendants shall pay interest on the award, and the interest shall be calculated from the date of the injury. Signed and filed this ____ day of October, 1993. Page 3 ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harold B Heslinga Attorney at Law 118 N Market St Oskaloosa IA 52577 Ms Angela A Swanson Attorney at Law 5400 University Ave West Des Moines IA 50265 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MATT MOELLER, Claimant, vs. File No. 906732 ABELL-HOWE, A P P E A L Employer, D E C I S I O N and CRAWFORD AND COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 5, 1991 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 March, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids, Iowa 52404 Mr. James E. Shipman Mr. James M. Peters Attorneys at Law 1200 MNB Building Cedar Rapids, Iowa 52401 9998 Filed March 17, 1993 BYRON K. ORTON PJL BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MATT MOELLER, Claimant, vs. File No. 906732 ABELL-HOWE, A P P E A L Employer, D E C I S I O N and CRAWFORD AND COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed August 5, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MATT MOELLER, : : Claimant, : : vs. : : File No. 906732 ABELL-HOWE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CRAWFORD AND COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Matt Moeller against Abell-Howe, employer, and Crawford and Company, insurance carrier, as defendants. Claimant alleges that he sustained a compensable injury to his back on January 4, 1989 and seeks compensation for an industrial disability. The case was held at Cedar Rapids, Iowa on April 22, 1991 and was considered fully submitted upon conclusion of the hearing. The record in this proceeding consists of the testimony of claimant; joint exhibits 1-5 and 7-11; and, defendants' exhibit A. issues Pursuant to the prehearing report submitted and approved at the hearing, the following issues are presented for resolution: 1. Whether claimant received an injury on January 4, 1989 which arose out of and in the course of his employment; 2. Whether there is a causal connection between the alleged injury and claimant's disability; 3. Whether claimant is entitled to temporary disability or healing period benefits, or permanent partial or permanent total disability benefits; 4. Whether claimant is entitled to medical benefits as provided for under Iowa Code section 85.27; and, 5. Claimant's workers' compensation rate. Page 2 findings of fact The undersigned deputy, having reviewed all of the evidence, finds the following facts: Claimant, Matt Moeller, was born on October 27, 1959. He graduated from Marion High School in Marion, Iowa. After graduating from high school, claimant began to work for Linn Lithoprinting, in Cedar Rapids, Iowa. His duties involved operating a paper cutter and an offset press. He was required to lift at times more than 100 pounds, and earned $5.00 an hour. After approximately one year at Linn Lithoprinting, claimant began working as an apprentice ironworker. This program required him to take classes to learn how to read blueprints and weld. It is a three year program, and claimant successfully completed the training in June of 1982. During the apprenticeship, claimant worked full time as an ironworker. Claimant worked regularly as an ironworker for ten years, before the alleged injury of January 4, 1989. As an ironworker, his responsibilities included carrying steel weighing up to 100 pounds, placing and tying rebar for bridge decks; connecting and bolting iron; working with a crane; and, welding. Claimant is a member of a union, and as such is assigned to various jobs for different companies through an application process. Over the past 10 years, he has worked for approximately 12 companies. Claimant began working for defendant Abell-Howe on a job site for ADM. Claimant testified that in November of 1988, as he was placing rebars in the foundation for a cooling tower, he felt a sharp pain in his low back and right leg. Claimant continued to work, although he did tell his partner about the incident. Claimant continued working until January 4, 1989, when he started having more back pain and was unable to sit down. He told his foreman, Howard Brunner, who told claimant to fill out an accident report and sent him to the company doctor, Yang Ahn, M.D. Claimant was treated by Dr. Ahn on January 5, 1989, and was treated with prescription medicines, hot packs, massages, and traction. Claimant returned to Dr. Ahn on January 10, 1989 and was referred to John Robb, M.D., for an evaluation. Claimant was off of work during this time. (Joint Exhibit 1-A, Pages 1-2) On January 12, 1989, claimant met with Dr. Robb. The history given is consistent with claimant's testimony, in that he hurt his back in late November while at work lifting heavy iron. A review of x-rays showed degenerative disc disease at L5-S1 with substantial posterior narrowing. Page 3 Claimant was given an exercise program, and was to return to Dr. Robb in two weeks. At this time, claimant was still off of work. Claimant returned to Dr. Robb in late January and mid February of 1989, and showed only moderate improvement. He was diagnosed as having a lumbosacral strain. On March 9, 1989, Dr. Robb sent claimant to Work Injury Rehabilitation Center for a work hardening program. After several more visits to Dr. Robb, claimant underwent an MRI of the lumbar spine on April 28, 1989. This test revealed a herniated disc at L5-S1 on the right side. Claimant was to continue with his exercise program, and on June 22, 1989, Dr. Robb recommended that claimant undergo vocational training. He told claimant that he should not report to his previous occupation, and should secure employment which would not entail lifting in excess of 40 pounds on an occasional basis, and not more than 25 pounds on a repetitive basis. On September 26, 1989, Dr. Robb made the following evaluation: Permanent impairment function: 5 per cent of the body as a whole as a result of degenerative disk disease which predates the accident, and 7 per cent of the back due to disk herniation with the associated intermittent radiculitis affecting the right leg. DIAGNOSIS: 1. Degenerative disk disease L5-S1. 2. Moderate disk herniation L5-S1 right. 3. Lumbosacral strain, aggravation of pre- existing degenerative disk disease. (Jt. Ex. 1-C, p. 27) He also stated that claimant would not be able to return to his previous occupation as an ironworker. (Jt. Ex. 1-C, p. 14) Claimant underwent an evaluation at the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals and Clinics on November 21, 1989. Claimant was motivated to regain his status as an ironworker, and requested continued chiropractic treatment. The results of the vocational rehabilitation assessment are less than glowing. The notes indicate that claimant was unable to deal with pain very well, and that he became easily discouraged. However, claimant did express an interest in applying to various factories in the Cedar Rapids area, and the consultant assigned to his case predicted a successful rehabilitation outcome from the program. (Jt. Ex. 1-D, pp. 68-85) Page 4 Claimant eventually underwent a steroid injection at the University. Next, claimant was referred to Richard F. Neiman, M.D., a neurologist. Upon examination, Dr. Neiman believed it would be unwise for claimant to return to work as an ironworker. He restricted claimant's work activity to not more than 35 pounds lifting on a repetitive basis, with a maximum lifting of 50 pounds. He thought claimant should avoid prolonged sitting or standing, and extensive flexion, extension or lateral rotation of the back. He thought claimant was employable. (Jt. Ex. 1-B, pp. 3-4) On April 24, 1990, Dr. Neiman was able to review the MRI scan previously performed on claimant. He, too, found a disc bulge and a possibility of a free fragment on the right side at the L5-S1 level. These instabilities were assessed at seven percent functional impairment of the whole person. Furthermore, Dr. Neiman made the following impairment ratings, which are a bit confusing: Using the Manual for Orthopaedic Surgeons in Evaluating Permanent Impairment, persistent muscle spasm rigidity and pain substantiated by demonstrable degenerative changes moderate osteoarthritc [sic] lipping revealed by xray, combined trauma pre-existing factors, probably comes about as close as we can get. Talk about neurogenic back pain recovering in 5-8 weeks of 5% and surgical excision of disc no fusion, good results with no persistent pain and then modification of the pain with fusion. However, they don't exactly address the herniated disc. I would think The Manual for Orthopaedic Surgeons would probably give approximately 10% level of impairment. Therefore, combining the two which has been my practice in the recent past, an impairment rating would be of 8.5% of the whole person. I think it is more important functionally to try and get him into additional activity. Certainly working on the heavy iron work is next to impossible. (Jt. Ex. 1-B, pp. 5-6) Dr. Neiman's restrictions provide: I think he is capable of doing light duty and sedentary type work. I usually suggest a maximum of repetative [sic] lifting 15-20, maximum probably 25-30 pounds. He should be able to change positions frequently. Ideally, he would be better off being employed in a position that produces less back strain. His disability is work related. He previously was employed as an iron worker. I advised that he should not do this position since it requires excessive strain of the Page 5 back that will aggravate the disc bulge. I think he is capable of doing light to moderate activity but not the previous iron work that he had been doing. He is disabled from his occupation since sometime in 1989. (Jt. Ex. 1-B, p. 8). Dr. Robb subsequently modified his opinions in reports dated November 20, 1990 and March 26, 1991. Those reports state that claimant's low back condition had resolved due to limited activity and avoidance of stress to the low back. Dr. Robb then opined that claimant did not have any permanent functional impairment to his back due to the work-related accident, yet assessed five percent impairment due to degenerative arthritis in claimant's back. And, he limited claimant's lifting activities to not more than 50 pounds, with limited bending, lifting and stooping. He recommended that claimant should not return to the job of ironworker. (Jt. Ex. 1-C, pp. 16-21). Finally, claimant underwent a functional capacities assessment at the Work Injury Rehabilitation Center on February 19 and 20, 1991. (Jt. Ex. 1-C, pp. 41-50) analysis and conclusions of law The first issue to be addressed is whether claimant received an injury in November of 1988 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 in November 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, 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 Page 6 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 provided a detailed description of both the physical demands and job duties of an ironworker. He has worked steadily as an ironworker during the past 12 years, and testified that he has never been injured on the job nor has he missed time from work due to any work related illnesses. The medical evidence, both in the histories provided to the various health care providers, as well as the services rendered to treat claimant's physical problems, are consistent with the back injury claimant alleges. He was performing those job duties required by his position, was working on his regular shift, and was performing his duties in a manner associated with those of an ironworker. The injury sustained can be seen to have followed as a natural incident of the work. And, claimant's testimony allowed the undersigned to become familiar with the overall working conditions and nature of the job. Claimant has sustained his burden of proof, and has shown by a preponderance of the evidence that he sustained an injury in November of 1988 which arose out of and in the course of his employment. It is noted that claimant alleged an injury on January 4, 1989; however, this is the date that he first missed work due to the injury occurred in November of 1988. The next issue to be addressed is whether there is a causal relationship between claimant's injury and his disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 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 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 Page 7 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). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 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). As noted under the findings of fact, all of the health care providers who have offered opinions regarding claimant's physical condition, have related his current physical disability to his position as an ironworker. Claimant provided testimony which shows that he was in good, if not excellent physical condition prior to November of 1988. And, although there is evidence which shows that claimant has sought chiropractic care at various stages in his life, there is nothing in the record to indicate that he ever sustained any type of permanent disability. It is concluded that claimant's current disability is related to his work-related injury. Defendants have also made a special point of arguing that apportionment is mandated. There is evidence in the record which indicates that claimant had some preexisting degenerative disease in his spine; however, the record does not reflect that his condition was such that he lost time from work or sought concentrated medical treatment. Nor is there any evidence that he had a permanent impairment or restrictions on his ability to perform any job because of his preexisting condition. No apportionment between claimant's preexisting arthritic condition and his post work-related injury status is allowed. The next issue to be addressed is whether claimant is entitled to temporary total or healing period benefits. As a general rule, temporary total disability benefits are paid where there has been no permanent impairment due to a work-related injury. Healing period benefits are awarded in the event an injury worker sustains a permanent impairment due to a work-related injury. Once again, the true primary treating physicians, Dr. Neiman and Dr. Robb have both assessed a permanent functional impairment to claimant's body as a whole. And, Page 8 both have imposed permanent medical restrictions on claimant's activities. As a result, it is concluded that claimant has sustained a permanent injury, and is therefore entitled to healing period benefits during the times he was taken off of work by a health care provider. The next issue to be addressed is whether claimant has sustained an industrial disability. 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, 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 v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the 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 Page 9 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). At the time of the incident, claimant was 29 years of age. He is a high school graduate, and has three years training as an ironworker apprentice. This includes not only on the job training, but classes in blueprint reading, welding and rigging. Claimant's work history is concentrated in the construction business, as he has worked for more than 10 years as an ironworker. As noted earlier, claimant was in good, if not excellent, physical condition prior to the injury. Subsequent to the injury, he has undergone numerous examinations, tests and evaluations. He has voiced complaints of pain, and objective findings have shown a herniated disc which can cause limited range of motion. Intellectually and emotionally, claimant appeared average, and his motivation to return to a position which will accommodate his physical limitations has been good. It was frustrating for the claimant, as positions for which he is qualified are typically low paying, considerably lower than his position as an ironworker. His current job is with ABC Seamless Siding in Cedar Rapids, Iowa. His job duties require him to measure and cut seamless siding. It does involve some lifting, bending and stooping. Claimant stated that, on a physical level, the work was certainly not as demanding as that work involved as an ironworker. As an ironworker, claimant earned $15.18 per hour; in his current position, claimant earns $6.00 per hour, which represents actual earnings loss of 61 percent. It has been the position of the agency that actual earnings are indicative of earning capacity. Claimant stated that he is not as strong as he was prior to the accident, has sustained a 15 pound weight loss, and that his low back affects every day in both his work and home activities. One of the factors used when assessing any claimant's industrial disability is that worker's ability to return to work for which he or she is suited. See, Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). A common theme found within the medical evidence is that claimant can not, or at least has been advised not to Page 10 return to the physically demanding job as an ironworker. Considering all of the factors that comprise an industrial disability, it is determined that claimant has sustained a 50 percent industrial disability. The next issue to be resolved is the calculation of claimant's workers' compensation rate. The evidence supports claimant's testimony that he was paid $15.18 per hour. Iowa Code section 85.36(6) indicates: In the case of an employee who is paid on a daily, or hourly basis, . . . the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Premium pay is not included in the calculation; however overtime hours worked are included in the rate at straight pay. Any week during the thirteen weeks immediately preceding the injury which was not completed due to reasons personal to the employee (illness or vacation) shall not be Page 11 included in the thirteen week period calculation. Joint Exhibit 7 depicts hours worked and gross wages earned during the thirteen weeks prior to claimant's injury, from October 8, 1988 through December 31, 1988. The exhibit shows that weeks 8 and 12 and 13 included holidays, and claimant was not paid for these days. The agency has held that where no employee worked on a given day, the week will be included in the rate calculation. If the absence is personal to the employee (sick leave or vacation), the week will be excluded. See, Lewis v. Aalf's Mfg. Co., I Iowa Indus. Comm'r Report 206, 207 (Appeal Dec. 1980). As a result, claimant's correct rate of compensation is based on 486 hours x $15.18 per hour equals $7377.48 divided by 13 equals $567.40. Using the July 1, 1988 Guide to Iowa Workers' Compensation Claim Handling rate book, a married individual with one dependent yields a rate of $350.98. The final issue to be discussed is whether claimant is entitled to medical benefits as provided for under Iowa Code section 85.27. The Code provides, in pertinent part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. Defendants argue that because claimant's medical treatment was not authorized, they are relieved of paying for medical services rendered to treat claimant's compensable injury. This issue is easily addressed. Defendants have denied liability. Agency precedence has clearly stated that when the employer denies liability for the claim, the defense of unauthorized medical treatment will fail. See, Holbert v. Townsend Eng'r Co., 32 Biennial Rep., Iowa Indus. Comm'r. 78, 80 (review Dec. 1975). Claimant is awarded medical benefits. The last issue to address is claimant's motion to amend the petition. At the close of the hearing, claimant moved to amend his petition to conform to the proof. Defendants objected, and argued that any amendment, particularly with respect to the injury date, would be prejudicial. Whether to grant a motion to amend the pleadings to conform to the proof at trial is within the court's discretion, National Bank & Trust Co. v. Campbell, 463 N.W.2d 104 (Iowa App. 1990). Page 12 Where a party can not claim surprise or prejudice, the amendment can be allowed. Here, the medical evidence indicates that claimant consistently told providers that he initially hurt his back in November 1988. Yet, claimant continued working until January 4, 1989, when his condition deteriorated and he sought medical treatment. Although defendants argued that by amending the injury date at the close of the hearing would somehow affect the applicable statute of limitations, the undersigned finds the argument without merit and amends the petition to reflect an injury date of November 1988. order THEREFORE, it is ordered: That defendants pay claimant permanent partial disability payments for two hundred fifty (250) weeks at the rate of three hundred fifty and 98/100 dollars ($350.98) per week beginning October 5, 1989. That defendants pay the accrued weekly benefits in a lump sum. That defendants pay medical bills and mileage incurred by claimant as provided for under Iowa Code section 85.27. That defendants pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants pay the costs of this action pursuant to rule 343 IAC 4.33. That defendants file claim activity reports upon payment of the award as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Thomas M Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids Iowa 52404 Mr James E Shipman Attorney at Law 1200 MNB Building Page 13 Cedar Rapids Iowa 52401 5-1800 Filed August 5, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : MATT MOELLER, : : Claimant, : : vs. : : File No. 906732 ABELL-HOWE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CRAWFORD AND COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Claimant, 29-year-old ironworker with ten years of experience, sustained a back injury. High school education, average motivation, and an actual loss of earings of 61 percent. Claimant awarded 50 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARY E BOYER, : : Claimant, : : vs. : : File No. 906819 IOWA PORK INDUSTRIES a/k/a, : AMERICAN FOOD GROUPS and : a/k/a DAKOTA PORK, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration wherein Mary E. Boyer seeks additional weekly compensation for healing period and permanent partial disability based upon an admitted injury of January 18, 1989. The record made consists of the factual stipulation and statement of issues submitted jointly by the parties. It also includes claimant's exhibit 1 and defendants' exhibits A through I. The parties waived to making of a verbatim record of the hearing. The exhibits offered were received and arguments made by counsel. No oral testimony was given. FINDINGS OF FACT The facts are contained in the factual stipulation submitted by the parties. That stipulation is in writing and is incorporated herein as though fully set forth. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). 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 Page 2 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). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). Once weekly compensation benefits have been commenced, section 86.13 of the Code of Iowa requires that 30 days advance notice must be given before those weekly benefits are terminated unless the employee has returned to work. This case deals with five claims for additional weekly benefits being made by the claimant. FIRST CLAIM The first claim made by the claimant is that she seeks 30 additional days of healing period based upon the lack of a written notice prior to benefits being terminated on or about April 19, 1989. Defendants contend that the claimant returned to work and that no notice was necessary. Exhibit A is not conclusive but it corroborates defendants' contention. Since claimant is seeking benefits she has the obligation of proving that she did not return to work on or about April 19, 1989. The proof fails to show that she did not return to work on or about April 19, 1989. Accordingly, claimant is not entitled to any additional weekly compensation under the theory alleged in the first of her five contentions. SECOND CLAIM In her second contention claimant seeks an additional 30 days of healing period for inadequate notice of termination of August 10, 1990. The parties agree, as shown at section III. 1.(b) of the statement of issues that claimant was mailed a check in the amount of $701.38 together with notice on August 10, 1990. Defendants contend that the payment should be applied to their permanent partial disability compensation obligation. Claimant disagrees. There is nothing in section 86.13 which deals with the characterization of weekly compensation payments regarding whether it is properly termed as healing period or permanent partial disability compensation. It has been long established that overpaid healing period benefits are Page 3 credited against the permanent partial disability liability. Wilson Feed Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982). There is no requirement to give a separate notice when healing period is converted to permanency benefits. The requirement of the statute is quite simple. If someone is off work receiving weekly compensation benefits of any character, it is necessary to give the 30-day notice if those benefits are to be terminated unless the person returns to work. It is perfectly proper to give a 30-day notice at the time the healing period ends and to apply the additional 30 days' worth of benefits which are paid to the permanent partial disability obligation. It is therefore concluded that claimant is not entitled to any additional weekly compensation based on the second of her five contentions. THIRD CLAIM This claimant's third contention is that she is entitled to an additional 30 days of healing period benefits for an allegedly inadequate notice of March 24, 1992. As shown in paragraph seven on page two of the factual stipulation, claimant was given a 30-day notice on March 29, 1992, and she was paid benefits through April 27, 1992. Accordingly, the employer has substantially met its legal obligation as far as giving notice is concerned. This is not, however, conclusive upon the ultimate issue of whether claimant is entitled to additional healing period benefits subsequent to April 27, 1992. As shown by paragraph five at page two of the factual stipulation, the healing period entitlement from January 14, 1992 through April 27, 1992 was paid. As stated by defense counsel in his brief, there is no evidence that any healing period benefits came due after April 27, 1992. Accordingly, claimant is not entitled to any recovery based upon her third contention. FOURTH CLAIM The fourth contention is that claimant seeks 30 additional days of healing period benefits for defendants' alleged failure to provide a 30-day notice for the period of time ending September 23, 1992. The notice given March 29, 1992, was sufficient for the termination that occurred on April 27, 1992. When additional benefits were paid subsequently, however, with the claimant remaining off work, it became necessary to give another notice when those benefits were terminated. Claimant is correct and is entitled to recover an additional 30 days of weekly compensation as she contends. The amount thereof is $701.38. The 30-day notice requirement provided by the second paragraph of section 86.13 is procedural in nature. It is well recognized that 30 days would not be an adequate amount of time to allow the industrial commissioner to act upon the claim. There is no requirement that an employer have any type of supporting medical evidence or documentation when it gives the notice. It is purely procedural. The fourth unnumbered paragraph of section 86.13, however, provides that a penalty can be imposed if benefits are unreasonably Page 4 terminated. When claim is made under that fourth paragraph some reasonable justification is needed if the employer is to avoid being penalized. In this case, no claim has been made under the fourth paragraph of section 86.13. The proper method of characterizing payments paid under the 30-day notice provision is an issue in this case. When the notice is given, it is perfectly proper to characterize those payments as permanent partial disability compensation benefits or as healing period, whichever satisfies the obligation. It is not, however, required that the benefits be characterized as permanent partial disability where there has been a failure to comply with the 30-day notice requirement and the individual has not returned to work. When there is a failure to give the notice, or a belated notice, it is determined that the additional entitlement to 30 days of benefits should have the character of a penalty under the fourth paragraph of section 86.13. In this case, the single check issued September 11, 1992, in the amount of $1,776.80 has been characterized as satisfying a healing period obligation. Claimant's additional entitlement in the amount of $701.38 should be considered as a penalty for failing to give the statutorily required notice. It should not be applied to the permanent partial disability compensation liability. FIFTH ClAIM The claimant's fifth contention is that her injuries should be compensated as losses of the individual fingers involved, rather than converted into an equivalent disability of the hand. Since the AMA Guides are inconsistent with the workers' compensation statute when converting from the fingers into the hand, it is not uncommon for there to be a considerable difference in the amount of the disability award when impairments of the fingers are converted into the hand. In this case, if claimant's permanent disability is computed based upon the individual fingers, her entitlement is 50.4 weeks of compensation benefits. If it is computed upon the stipulated 24 percent impairment of the hand, the entitlement is 45.6 weeks. When performing statutory construction it is important to remember that words are given their ordinary meaning and that the workers' compensation statutes are to be liberally construed in favor of the worker. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981); American Home Products Corp. v. Iowa State Board of Tax Review, 302 N.W.2d 140 (Iowa 1981). It is elementary that fingers are an integral part of the hand. If a small child is asked to draw a picture of a hand, the result invariably includes fingers and a thumb. That result is consistent with many authorities such as Black's Law Dictionary, Stedman's Medical Dictionary, Gray's Anatomy, and Webster's New World Dictionary. It is only in this agency's efforts to deny benefits under the Second Injury Fund that fingers and the thumb are held to not be parts of the hand. Patton v. Roberts Dairy Co., file number 890255 & 943984 (App. Dec. May 27, 1993). That decision concludes that since section Page 5 85.34 provides a separate means of computing disabilities of the fingers, that fingers are somehow not a part of the hand. The rule from that case should be limited in application to claims against the Second Injury Fund. For all other purposes, fingers clearly are a part of a hand. This agency has previously held that where the injury is limited to the fingers it cannot be compensated based upon impairment of the hand. Morrison v. Wilson Foods, I Iowa Industrial Commissioner Report, 244 (1980); Herold v. Constructors, Inc., 271 N.W.2d 543 (Neb. 1978). In this case all the ratings of impairment and disability are based upon losses of fingers. The equivalent impairment of the hand is arrived at only by converting those losses into an equivalent impairment of the hand. From the record made it appears as though no part of the claimant's hand is impaired other than the three affected fingers. It is clear that the claimant has lost those fingers. It would be totally irreconcilable with the beneficent purpose of the workers' compensation statutes to provide a construction which would give her less by converting those impairments into the hand than what she would receive when treating each finger independently. That is particularly true in this case since there is no evidence that the hand is impaired other than through the impairment of the affected fingers. It is unconscionable to award less compensation because the injury is more severe than what would be awarded if the injury were less severe. Even if there were some disability of the hand which was independent from that of the fingers, the loss of the fingers creates a minimum entitlement. It is therefore concluded that the claimant is entitled to recover 50.4 weeks of permanent partial disability compensation for the injuries to her second, third and little fingers. Under the provisions of section 85.34(2)(c, d, e) she is entitled to receive $8,248.97 since the weekly rate of compensation of $163.67. Defendants have made considerable payments toward satisfying their liability in this case. In 1989 they paid 25 weeks of benefits totally $4,091.75. They are entitled to credit for the 30 days of benefits paid in August 1990 totaling $701.38. They are entitled to credit for the payment made February 19, 1993, in the amount of $1,851.76. They are also entitled to credit for the payment paid June 10, 1993, in the amount of $818.96. These payments total $7,463.85. The permanent partial disability compensation entitlement in this case has therefore been underpaid in the sum of $785.12. ORDER IT IS THEREFORE ORDERED that defendants pay Mary Boyer four and two-sevenths weeks (4 2/7) of compensation at the rate of one hundred sixty-three and 67/100 dollars ($163.67) per week as a result of the termination of benefits without thirty (30) days prior notice. This computes to seven hundred one and 38/100 dollars ($701.38). It is further ordered that defendants pay Mary E. Boyer Page 6 the sum of seven hundred eighty-five and 12/100 dollars ($785.12) in permanent partial disability compensation. It is further ordered that defendants file claim activity reports pursuant to rule 343 IAC 3.1. It is further ordered that the costs of this action are assessed against defendants. Signed and filed this ____ day of December, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. W.M. Forker Attorney at Law 232 Davidson Bldg Sioux City, Iowa 51101 Mr. Joe Cosgrove Attorney at Law 400 Frances Bldg Sioux City, Iowa 51101 Mr. Michael P. Jacobs Mr. Michael W. Ellwanger Attorneys at Law 300 Toy Bldg Sioux City, Iowa 51101 4000.1 1803 Filed December 20, 1993 Michael G Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARY E BOYER, Claimant, vs. File No. 906819 IOWA PORK INDUSTRIES a/k/a, AMERICAN FOOD GROUPS and a/k/a DAKOTA PORK A R B I T R A T I O N Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 4000.1 Whenever an employee has been receiving weekly compensation and the employer terminates benefits without the employee returning to work that a 30-day notice is required. If made, those payments qualify as healing period or permanent partial disability according to the underlying facts ultimately determined in the case. If the notice is not given, however, the additional benefits awarded do not satisfy healing period or permanent partial disability obligations. It was not necessary for an employer to have documentation to support its decision to terminate benefits in order for the 30-day notice to be procedurally correct but that such documentation is necessary to successfully defend against a claim under the fourth paragraph of section 86.13. 1803 Where injury caused total loss of third and fourth fingers and an 18 percent impairment of second finger, claimant was held entitled to recover permanent partial disability based upon section 85.34(2)(c, d & e). If the impairments of the fingers had been converted into the hand it would provide five fewer weeks of benefits. While fingers constitute a part of the hand, the beneficent purpose of the workers' compensation act prohibits reduction of benefits when the severity of the injury increases. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES W. CARR, Claimant, vs. File Nos. 906851/935598 BLACK HAWK WASTE SYSTEMS, A P P E A L Employer, D E C I S I O N LIBERTY MUTUAL, 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. ISSUES The issues on appeal are: The extent of claimant's healing period from his November 8, 1989 knee injury; whether claimant has proved that his back condition was the result of either of his two accidents; whether defendants are entitled to reimbursement for overpayment of compensation; and whether defendants are entitled to a credit for overpayment of the second injury for the underpayment of the first injury. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed July 30, 1992 are adopted as set forth below. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. ***** James W. Carr is a 38-year-old married man who graduated from high school in 1970. He has worked for sixteen different employers, all for relative short periods of time as shown in his answer to interrogatory No. 8 (Claimant's Exhibit 10, pages 10-13). Most of the jobs appear to have consisted primarily of manual labor or cashier-type of work. Claimant has also accumulated five felony convictions and an aggravated misdemeanor conviction for offenses consisting of forgery, false use of a financial instrument, burglary and theft (Def. Ex. D; Cl. Ex. 10, pp. 41-42). Page 2 Claimant's preinjury medical history is remarkable for problems with persistent headaches, dizziness and blackout spells in 1985, 1987 and 1988 (Cl. Ex. 4, pp. 38, 39, 41, 46). A report from the University of Iowa dated September 16, 1987, indicates that claimant had been off work due to visual disturbances (Def. Ex. A1). He has been afflicted with hypertension since he was a teenager and the records indicate that it has not always been well controlled. The preinjury records do not contain any significant reference to back pain or leg symptoms. Claimant was injured on January 5, 1989, when he neglected to lower the rails of his refuse truck and they hit a beam, stopping the truck immediately and throwing him forward within the truck. It appears unlikely that the claimant lost consciousness from that incident as he extracted himself from the vehicle and walked to the John Deere plant medical department where he was treated by the plant nurse. The ambulance attendants who transported him to the hospital noted head and face lacerations. A cervical collar was placed on him (Cl. Ex. 2, p. 5). The records from the hospital emergency room note "No L.O.C.," an abbreviation which indicates no loss of consciousness, though he was noted to be slightly dizzy. He demonstrated facial lacerations, thoracic spine pain and pain in his knee. While at the hospital, x-rays were taken of his cervical and thoracic spine which showed degeneration at the C6-7 level and mild scoliosis in the thoracic spine. No low back complaints were noted. His right knee appears to have become increasingly symptomatic while he was at the hospital (Cl. Ex. 2, pp. 1-3 and 7). Claimant returned for a recheck on January 9, 1989, at which time the records show that he continued to have pain and swelling in his knee and, pain in his upper back and headaches. He exhibited tenderness to palpation in his thoracic spine. A straight leg raising test was performed which was interpreted as being positive on his right leg at 30 degrees. The diagnosis shown is low back strain with contusion of the knee (Cl. Ex. 2, p. 9). The report of injury signed by the claimant on January 17, 1989, lists his back as a part of his body which was injured. It does not specify whether it was the upper, middle or low back (Cl. Ex. 16). The records indicate that on January 19, 1989, claimant received heat application to his low back (Cl. Ex. 4, p. 2). In the prehearing report, the parties stipulate that claimant's healing period entitlement runs from January 6, 1989 through February 5, 1989. A number of work releases appear in the record including January 23, 1989 (Def. Ex. A2, p. 2), January 30, 1989 (Def. Ex. A2, p. 1), and February 3, 1989 (Def. Ex. 4, p. 3). The stipulated date of February 5, 1989 is not irreconcilable with the record and is accepted as being correct for marking the end of the claimant's initial healing period entitlement. After returning to work on or about February 6, 1989, claimant entered into a course of treatment with Orthopedic Page 3 Surgeon Jitu D. Kothari, M.D., for treatment of his right knee. On February 17, 1989, claimant was noted to have post-traumatic condromalacia of his right patella secondary to the accident of January 5, 1989. Claimant returned to Dr. Kothari in February 23, 1989, but did not again return to Dr. Kothari until after the November 8, 1989 injury (Cl. Ex. 3, pp. 6 and 7). The notes from claimant's family physician note that on August 17, 1989, he complained of lack of feeling in his left leg, a symptom which had started on the previous day and on August 24, 1989, he reported occasional numbness in his right leg (Cl. Ex. 4, pp. 5 and 6). On November 8, 1989, claimant was again driving his employer's truck. He stopped at a stop sign and the cab of the truck tipped forward. There is uncertainty in the record regarding how far forward the truck tipped but it is clear that the claimant did bump his knee in the incident but he denied striking his head. He phoned his physician on November 8, 1989, reporting the incident and knee pain (Cl. Ex. 4, p. 8). X-rays of right knee were again taken on November 8, 1989 (cl. ex. 2, p. 12). The emergency room record makes record of knee complaints and symptoms but does not mention any back complaints of any nature (Cl. Ex. 2, p. 10). He was seen by his family physicians on November 17, 1989, with complaints of sore throat and coughing. Neither his knee nor his back are mentioned (Cl. Ex. 4, p. 10). On November 30, 1989, he was seen by Dr. Kothari. Dr. Kothari recommended arthroscopic surgery (Cl. Ex. 3, p. 9). The surgery was performed December 14, 1989 (Cl. Ex. 2, pp. 32 and 33). He was found to have a full thickness articular cartilage flap in the medial femoral condyle and medial facet of the patella of his right knee. After a relatively uneventful period of recuperation following surgery, claimant was released to return to work by Dr. Kothari and also by his family physician effective January 22, 1990 (Cl. Ex. 3, p. 17; Cl. Ex. 4, p. 36). Neither release listed any restrictions on activity. [Claimant was initially released to return to light duty work by Dr. Kothari effective January 8, 1990. The release to return to work by Dr. Kothari for January 22, 1990 was for regular work duties (Cl. Ex. 3, pp. 4, 17). Claimant did not keep medical appointments for February 20, 1990, March 2, 1990 and March 9, 1990 (Cl. Ex. 3, p. 11).] Claimant worked approximately half time for a few days and then again went off work on January 31, 1990. [It was Dr. Kotharis' opinion that the numbness of claimant's right thigh was not related to claimant's knee injury. (Ex. C, p. 24)] Claimant saw his family physician, Dennis Harris, D.O., as a follow-up for a gynecomastia condition which had been treated while claimant was off work. On that January 31, 1990 visit, claimant also complained of increasing numbness and tingling in his right leg. The note at one point state that no low back pain existed but at another Page 4 point state that moderate back pain existed. A straight leg raising test was indicated as being negative. Distinct weakness of the right thigh musculature was noted. Dr. Harris recommended that claimant refrain from truck driving (Cl. Ex. 4, p. 12). It is noted that claimant had worked continuously following his return to work in February 1989 until the day before undergoing the surgery in December 1989. He was not off work for the November injury until the day the knee surgery was performed. Claimant was first seen by Muhammad Eyad Dughly, M.D., for back complaints on February 13, 1990. Dr. Dughly provided testing and conservative treatment over the following months until releasing claimant for light duty on June 19, 1990. The employer apparently had no light duty work available for the claimant. Claimant did not report for work and was terminated for absenteeism. EMG tests were essentially negative except for the absence of the "H" response in claimant's right leg (Cl. Ex. 6, p. 26 and 27). That response was subsequently found to be normal in testing done at the University of Iowa Hospitals (Cl. Ex. 7, p. 56; Dep. Ex. 4). A sensory examination performed June 25, 1990, showed decreased sensation over claimant's entire right leg, right arm and right side of his face (Cl. Ex. 6, p. 46). Dr. Dughly was unable to state whether claimant's headaches were any worse following either accident than they were before the first accident occurred (Cl. Ex. 6, pp. 77 and 78). Dr. Dughly found claimant to have a spondylolisthesis condition which he felt was caused by the accident. He also stated that if it was caused by the accident, the pain should have started immediately following the accident (Cl. Ex. 6, pp. 83 and 84). Dr. Dughly stated that claimant had really not made any significant improvement for any of the conditions since the time treatment was started. He felt that when deposed in July of 1991, no further significant improvement was expected (Cl. Ex. 6, pp. 98, 109-111). Dr. Dughly felt that claimant had a 3 to 4 percent permanent impairment due to post-traumatic headaches, 5 to 6 percent due to low back, 5 to 6 percent due to right leg numbness and whatever impairment was related to the knee injury itself (Cl. Ex. 6, pp. 68-70). Dr. Dughly felt that claimant should follow activity restrictions (Cl. Ex. 6, p. 95). Claimant was also evaluated by Neurologist James M. Doro, D.O. Dr. Doro found claimant's neurological exam to be essentially normal. He related claimant's difficulties to a chronic musculoskeletal strain (Cl. Ex. 7, pp. 11, 12, 17 and 18). Dr. Doro felt that claimant's spondylolisthesis was not related to either of the accidents because no corresponding complaints were noted following the accidents (Cl. Ex. 7, pp. 21 and 22). He felt that claimant's low back problem, whatever it actually was, was not related to either of the accidents (Cl. Ex. 7, pp. 22-26). He felt that claimant's pains were idiopathic and stated that the majority of people with such complaints are unable to Page 5 identify an incident which caused them (Cl. Ex. 7, pp. 42, 57 and 59). Dr. Kothari expressed no opinion regarding the cause of claimant's back complaints other than to state that the thigh pain was not a result of the knee condition (Def. Ex. C, pp. 24, 25 and 29). Dr. Kothari related claimant's knee condition to the first accident but stated that the second may have aggravated it (Def. Ex. C, pp. 22 and 23). The record of this case is devoid of any prompt reports of thigh or low back pain of any continuing nature following either of the two accidents. Any testimony from claimant or his spouse providing an onset of symptoms at or about the time of either accident is not corroborated by any of the medical records. Further, claimant's testimony and credibility is suspect as evidenced by his criminal convictions as well as his attempt to recover for headaches when the record shows a preexisting course of headaches which appear to have been more aggressively treated medically than the ones of which he now complains. The objective record is absolutely devoid of any evidence of worsening of any pattern of headaches. The diagnostic testing regarding his back condition has failed to show any definite objective cause for the complaints. The MRI results are at best equivocal. For all these reasons, the evidence from Dr. Doro is preferred over that from Dr. Dughly, despite the fact that Dr. Dughly was a treating physician. The assessment made by Dr. Kothari regarding the right knee is accepted as being correct. It is essentially uncontradicted. It is therefore found that James W. Carr injured his right knee on January 5, 1989, and aggravated that injury on November 8, 1989. As indicated by Dr. Kothari, he has a 5 percent permanent partial impairment of his right leg. It is noted that claimant did not obtain further care or treatment for the right knee after having seen Dr. Kothari only twice in early 1989, until after the second injury occurred. The need for surgery and permanent impairment is therefore attributed to that second injury. Failing to keep medical appointments is strong evidence of a lack of symptoms. It is found that the existence of permanent disability affecting claimant's right knee was not discoverable based upon the information readily available until subsequent to the second injury which aggravated the knee. The record shows that claimant is married, has one child for whom he is required to pay support, and four stepchildren who reside with him and whom he, together with his wife, supports. The record does not indicate whether or not claimant pays support for his child or whether he is entitled, under the tax laws, to claim his child as an exemption for income tax purposes. While claimant's spouse may have earned more than the claimant, it is found that both contributed to the support of the home where they resided and that they were, as joint tax payers, both entitled to claim claimant's stepchildren, the children of Page 6 his wife, as dependents for income tax purposes. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed June 30, 1992 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. The occurrence of both injuries was not disputed, the only dispute is with regard to whether the injuries permanently affected claimant's back or head. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The evidence fails to show any worsening of claimant's headache condition from that which had existed for a considerable amount of time prior to the time he commenced employment with Black Hawk Waste Disposal. It is therefore concluded that he has failed to prove by a preponderance of the evidence that either accident proximately caused any permanent head injury. That back condition is not quite so clear cut. Nevertheless, the burden of proof rests with the claimant. His testimony is rendered suspect as previously indicated herein. It is nor corroborated by medical records or reports. While it is possible that one of the accidents in some way injured his low back, the record fails to show that it is probable that claimant's low back was permanently injured in either of the two accidents. It is noted that many individuals sustain injuries which are temporary in nature and from which a full recovery occurs. The one note showing heat being applied to claimant's low back and the diagnosis of low back strain shortly following the first injury is consistent with there being a full recovery from any low back injury in that first accident. The next record of any back or leg symptoms appears in August of 1989, several months after the initial injury and several months before the second. No further record of back complaints exists until after the time claimant was released to return to work from the knee injury by Dr. Kothari. The evidence from Dr. Doro that such back and leg complaints are usually found to be idiopathic has been previously found to be correct. Claimant has therefore failed to prove by a preponderance of the evidence that his low back condition, whatever it may be, and his leg were proximately caused by Page 7 either of the two accidents which are the subjects of this case. Claimant's recovery period from the first injury has been stipulated to have run from January 6, 1989 through February 5, 1989, a span of 4.571 weeks. With regard to the second injury, his period of recover runs from December 14, 1989 through January 22, 1990, a span of 5.714 weeks, ending when Dr. Kothari released him to return to work. [Claimant was released to return to regular work. He did not keep three medical appointments for treatment of his knee from February 20, 1990 through March 2, 1990. Claimant may have missed some work for problems after January 22, 1990 but these do not appear to be related to his work injury. Claimant bears the burden of proving entitlement to benefits. Claimant has not proved that his healing period extended beyond January 22, 1990. Claimant's healing period ended on that day.] Claimant is also entitled to recover permanent partial disability representing a 5 percent disability of his right leg pursuant to Iowa Code section 85.34(2)"o". Five percent of 220 weeks is 11 weeks. Claimant's entitlement to weekly compensation pursuant to Iowa Code sections 85.34(1) and 85.34(2) therefore totals 21.143 weeks. The parties stipulated to claimant's rate of earnings and marital status. The only dispute regarding the rate of compensation is his entitlement to exemptions. The weekly rate of earnings is the same for both injuries, namely, $325. The first injury is, however, found under the 1988 benefits schedule while the second falls under the 1989 benefits schedule. Under Iowa Code section 85.61(6)"a", the exemptions which are to be used are those exemptions the individual is allowed under the Internal Revenue Code. Since claimant, as a married person, would have been entitled to file a joint income tax return with his spouse he would have been able to claim the four stepchildren as dependents on such a return and they should be allowed when determining his rate of compensation. There is no evidence that he is entitled to claim his child for whom he has been ordered to pay support as a tax dependent. Agency precedence has established a presumption that the employee is entitled to an exemption for any natural child for whom the employee is ordered to pay support. Biggs v. Charles Donner, II Iowa Indus. Comm'r Rep. 34 (Appeal Dec. 1982). It is therefore concluded that claimant is entitled to count as exemptions in determining the rate himself, his spouse, his four stepchildren and his one natural child for whom he is ordered to pay support. The record does not show claimant to have not paid any support or to have abandoned the natural child as would avoid the agency precedent. The rate of compensation should therefore be computed with seven exemptions. The rate for the January 5, 1989 injury is $230.78. The rate for the November 8, 1989 injury is $231.64. Inasmuch as claimant has failed to prove that his back Page 8 condition resulted from either of the two accidents, his expenses listed in claimant's exhibit 5 are not recoverable by him under the provisions of Iowa Code section 85.27. The prehearing reports filed in this proceedings show that claimant has been paid 4.571 weeks of compensation at the rate of $226.31 based upon the January 5, 1989 injury and 23.429 weeks of compensation at the rate of $227.82 based upon the November 8, 1989 injury. ***** [Claimant's entitlement to weekly benefits for the January 5, 1989 injury was stipulated to be from January 6, 1989 through February 5, 1989. It was also stipulated that claimant was paid 4.429 weeks at a rate of $225.31. Claimant has been paid the correct duration of his weekly benefits. However, claimant was compensated at a rate lower than what was determined to be the correct rate above ($230.78). Defendants are liable to claimant for the difference between what was actually paid and what should be paid. Claimant's entitlement for the November 8, 1989 injury is healing period benefits from December 14, 1989 until January 22, 1990 (5.714 weeks) and 11 weeks of permanent partial disability benefits. The total weekly benefits for the November 8, 1989 injury is 16.714 weeks. Claimant has been paid 23.429 weeks of benefits and is entitled to no further weekly benefits for that injury. Regarding this injury (November 8, 1989) defendants have paid claimant more than their liability. The amount paid (23.429 weeks at a rate of $227.82 per week) exceeds the defendants' liability (16.714 weeks at the correct rate of $231.64 per week) therefore, claimant takes nothing for this injury. Claimant has been overpaid weekly benefits. Defendants assert on cross-appeal that they are entitled to reimbursement of their overpayment. The defendants cite no controlling authority for this agency to have authority to order the claimant to reimburse defendants for the overpayment in this case. There is no statutory nor case law authority that empowers this agency to order claimant to reimburse defendants for an overpayment of weekly benefits. This agency will not require that the claimant reimburse defendants for an overpayment. Defendants are not entitled to a credit for overpayment of the November 8, 1989 liability for their underpayment of their liability for the January 5, 1989 injury. The agency clearly has authority to consider and order credit for excess payments as provided in Iowa Code section 85.34(4). However, defendants do not receive a credit for overpayment of one injury for their liability for a second injury. See Peek v. Super Valu, File No. 910511 (Appeal Decision March 10, 1993) In this case claimant had two separate and distinct injuries, albeit to the same knee. The first injury resulted in a temporary disability and the second resulted in a need for surgery and a permanent disability. These injuries involved separate traumatic events. In this case defendants have paid weekly benefits for Page 9 each injury at a rate lower than the rate determined above. Defendants are entitled to credit for weekly benefits paid for each injury. However, defendants are liable to claimant for the difference in the rate previously paid and the proper rate for the January 5, 1989 injury. Defendants are not entitled to credit for the overpayment of the November 8, 1989 injury to satisfy the liability of the underpayment of the January 5, 1989 injury.] WHEREFORE, the decision of the deputy is affirmed in part and reversed in part. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant temporary total disability benefits from January 6, 1989 through February 5, 1989 for the January 5, 1989 injury at the rate of two hundred thirty and 78/100 dollars ($230.78) per week. That defendants are to be given credit for benefits paid for the January 5, 1989 injury for the liability for the January 5, 1989 injury. That defendant shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That claimant shall take nothing from these proceedings for the November 8, 1989 injury. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Each party shall pay its costs incurred in these proceedings That claimant not be required by this agency to reimburse defendants for overpayment of weekly benefits. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of July, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Stamp Attorney at Law 3324 Kimball Ave P O Box 2696 Waterloo, IA 50704 Mr. Kevin R. Rogers Attorney at Law 528 W 4th St P O Box 1200 Waterloo, IA 50704 1704; 2302; 3002; 1900; 5-1402.40 Filed July 29, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAMES W. CARR, Claimant, vs. File Nos. 906851/935598 BLACK HAWK WASTE SYSTEMS, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. _________________________________________________________________ 1703 Where there are two separate injuries, defendants are not allowed a credit for overpayment on the second injury to satisfy underpayment on the first injury. 1704; 2302 The agency does not have authority to require that claimant reimburse defendants for an overpayment of weekly benefits. 3002; 1900 Claimant was allowed exemptions in computing the rate of compensation for his wife's children (his stepchildren) even though wife's earnings may have been higher than his, and also for his own natural child for whom he was ordered to pay child support though the record did not indicate one way or the other regarding whether he actually paid the support, in part or in full, or was entitled to claim the child as an income tax exemption. 5-1402.40 Claimant failed to prove that headache complaints and back complaints resulted from either of the two injuries which were the subject of the action.