Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : TERRANCE D. VOSBERG, : : Claimant, : File No. 906860 : vs. : A P P E A L : A. Y. McDONALD, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on January 8, 1989. The record on appeal consists of the transcript of the arbitration proceeding, and joint exhibits 1 through 12. Both parties filed briefs on appeal. ISSUES Those portions of the proposed agency decision pertaining to issues not raised on appeal are adopted as a part of this appeal decision. Defendant states the issues as: I. Whether substantial evidence supports the finding that the claimant has a 60% industrial disability. II. Whether substantial evidence supports the finding that the healing benefit period ran through September 22, 1989. Claimant states the issues on cross-appeal as: I. The finding of the hearing officer that claimant has a 60% industrial disability is supported by substantial evidence. II. Healing period benefits should have been awarded from January 8, 1989, through January 11, 1990. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed September 14, 1990 are adopted as final agency action. CONCLUSIONS OF LAW Claimant's proper healing period is an issue on appeal. R. Scott Cairns, M.D., predicted that claimant's permanent condition might not be known until a year after the injury of January 8, 1989. Claimant's condition continued to change after April 1, 1989, as noted in Dr. Cairns' reports. Page 2 Although claimant last saw Dr. Cairns on January 11, 1990, Dr. Cairns stated in his deposition that claimant's condition stabilized and further improvement was not expected after November 7, 1989. (Joint exhibit 1, page 36.) Claimant's healing period ended on November 7, 1989. Claimant's industrial disability is the second issue on appeal. Claimant has shown good motivation to return to work or find alternative work. However, claimant's instructions to the vocational rehabilitation worker to stop looking for jobs for claimant has possibly increased his disability through no fault of the employer. Claimant has not been rehired. Defendant argued that a union contract prevented defendant from rehiring claimant. Normally an employer's refusal to rehire an injured worker may increase a claimant's industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). However, this contemplates willful employer conduct that increases the disability. In this case, the record indicates that the employer's refusal to rehire claimant was not the employer's decision, but was mandated by a union contract. It would be unfair to penalize the employer for its compliance with a binding contract. The employer's failure to rehire claimant in this case is not the kind of employer conduct envisioned by McSpadden. The fact remains that claimant is still unemployed because of the union contract. Loss of earnings is a factor of industrial disability. Claimant has lost substantial earnings and continues to do so as a result of his work injury. Claimant was 30 years old at the time of the hearing. He has a high school diploma. Claimant has an impairment rating of 10 percent. Claimant's work activity is limited to manual labor Page 3 jobs. Based on these and all other factors of industrial disability, claimant has an industrial disability of 35 percent. WHEREFORE, the decision of the deputy is affirmed and modified. order THEREFORE, it is ordered: That defendant shall pay unto claimant healing period benefits at the rate of two hundred sixty-two and 16/100 dollars ($262.16) for the period beginning January 8, 1989 to and including November 7, 1990, which amounts to ninety-five point five seven one (95.571) weeks. That defendant shall pay unto claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of two hundred sixty-two and 16/100 dollars ($262.16) beginning November 8, 1990. That defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that claimant has been paid eighty-four (84) weeks of benefits. That defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this matter including the transcription of the hearing. That defendant shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of February, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Mark J. Sullivan Attorney at Law P.O. Box 239 Dubuque, Iowa 52001 Mr. Les V. Reddick Attorney at Law 200 CyCare Plaza Dubuque, Iowa 52001 5-1802; 5-1803; 1803 Filed February 27, 1992 Byron K. Orton BJO before the iowa industrial commissioner ____________________________________________________________ _____ : TERRANCE D. VOSBERG, : : Claimant, : File No. 906860 : vs. : A P P E A L : A. Y. McDONALD, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ 5-1802 Claimant's healing period modified on appeal based on physician's deposition statement. 5-1803 Claimant, 30 years old, high school diploma, 10 percent impairment rating, work experience limited to manual labor, not returned to work, awarded 35 percent industrial disability. 1803 Claimant was not returned to work by employer due to provision of a union contract. Held that this would not increase disability under McSpadden, but fact that claimant was presently unemployed still represented a substantial loss of earnings, a factor of industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : : TERRANCE D. VOSBERG, : : Claimant, : : File No. 906860 vs. : : A. Y. McDONALD, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an injury occurring on January 8, 1989. The record in the proceedings consist of the testimony of claimant, Arthur C. Winne, and Nancy Branson; and joint exhibits 1 through 12 issue The issue for resolution is the nature and extent of claimant's disability and entitlement to disability benefits. findings of fact Claimant is a 30-year-old high school graduate. Claimant's job history was basically in unskilled labor type jobs until he began employment with defendant employer in October 1978 as an entry level machinist. Claimant went into the navy in 1979 to 1982 and the last year and a half of his navy enlistment he was an electrical systems maintainer. This electrical expertise left no real skills outside the navy in the electrical industry. After his navy stint, claimant then returned to defendant employer in 1982 and worked there until his January 8, 1989 injury. Claimant was a union member and eventually was promoted to a millwright. Claimant explained the duties of a millwright and the skills required. At the time of his injury, claimant was making $10.45 per hour. Claimant related he was in good health before January 8, 1989 and had never treated for back problems nor had he any restrictions. The record in evidence supports claimant on this point and the undersigned so finds. Claimant said he golfed, went snowmobiling, hunted (including deer hunting, which involved climbing in trees), fished (including ice fishing, which required sitting on a bucket on the ice), water skied, and drove an all terrain vehicle. Claimant is not able to do any of these activities Page 2 now or, if able, he is limited. He has attempted some of these activities but has discontinued them basically because of the discomfort of pain that it caused him due to his January 1989 injury. Claimant was injured at work on January 8, 1989 while lifting and repairing a machine which weighed approximately 100 pounds. While lifting this machine with the help of another individual, claimant experienced a sharp pain in his low back and dropped the weight and was unable to continue working. Claimant then saw the company doctor, Luke Faber, M.D. Dr. Faber took no x-rays but prescribed some medicine and ordered physical therapy. Claimant said this treatment did not help. Shortly thereafter, the unimproved claimant saw Faber on January 13, 1989 because claimant's back was worse and the therapy to date was not helping that much. Claimant said Dr. Faber then released him to return to work and did not think any further treatment was necessary. Claimant was not able to return to work on January 15, 1989 because his back was worse than the week before. Claimant was unable to bend over. On January 16, 1989, Dr. Faber referred claimant to R. Scott Cairns, M.D., an orthopedic surgeon, who took x-rays and eventually performed a CT scan and a bone scan. The bone scan showed a herniated disc in the low back. Claimant was then put through a four week conservative physical therapy course several times per week which also involves certain exercises, massage and heat. Claimant said it did not help other than relieve pain at the particular moment. Claimant called defendant employer regarding returning to work in the spring of 1989 and defendant employer, through Arthur Winne, said "no" due to claimant's restrictions. On May 25, 1989, Dr. Cairns requested a second CT scan which indicated again that claimant had a herniated disc larger than before at the L5-S1 area. Dr. Cairns at that time was not in favor of surgery. In the fall of 1989, claimant concluded he could potentially generate the same amount of income in the Amway business as he did at defendant employer so he started attending seminars and building up his and his wife's Amway business by recruiting others under them. It appeared claimant and his wife were already in this Amway business in a very limited capacity at the time of claimant's injury in order to generate some additional side income to live a better lifestyle. Claimant began full-time with his Amway business working 50 hours per week, beginning January 1, 1990. Claimant also had a satellite television system business on the side in which he sold satellite dishes and installed them. He had started this satellite business in 1988. Claimant said his satellite dish business has deteriorated due to his 1989 injury as he cannot do the installing which required physical work, digging, lifting and pouring concrete. Claimant said he had a six month period after his injury in which he was unable to do anything in his satellite business. Claimant's 1988 income tax return shows approximately a $1,000 loss in his Page 3 satellite business and in 1989 his tax return shows a $48 profit. Neither return shows any Amway income. Claimant said his income in 1990 with Amway is $4,000 and $3,000 in his television satellite business. Claimant said there is no lifting required concerning the Amway products as people picked them up themselves at his house. Claimant said if he were offered a position with defendant employer now, he would consider it. He has never been offered a job nor did the rehabilitation consultant, Nancy Bronson, find him a job. She only suggested jobs he might seek, many which paid less than defendant employer paid. Arthur Winne, vice president and long time human resource personnel for defendant employer, said claimant was a very good employee and would highly recommend him. He said there are certain union restrictions as to certain jobs and pay and indicated it is hard to return claimant to another job. This employer apparently uses this as an excuse not to be able to return claimant to work but does not acknowledge that these rules and contract restrictions were in place before the injury and the injury did not create these contract restrictions. Claimant's injury only triggered the rules to which the employer and employees through their negotiations had agreed which conditions mutually affected the employment profit and wage situation of the parties. It was of interest to the undersigned when the employer emphasized that the door is forever closed to this claimant. Mr. Winne said "defendant employer's situation prohibits claimant's return to another job at defendant employer" and "it isn't possible to offer an office or supervisory position and none was ever offered and it is not likely one would be available." Defendant employer did okay the retaining of a rehabilitation specialist, Nancy Branson, whose first contact with claimant was in August 1989. She only concluded, "That it is apparent that he is capable of substantial gainful activity in either sedentary or light work." (Joint Exhibit 11, page 3) She listed several areas of potential jobs claimant's past history and skills would indicate he could do. It is interesting to note that this rehabilitation specialist did not attempt to or have any actual real life employment opportunity for this claimant. It is one thing to theorize through a dictionary of occupational titles and to have an actual job itself. There is no evidence any of these types of jobs ever existed in the area let alone whether a job vacancy existed. The estimated wage varied from $3.85 to $11.75, in her opinion. Ms. Branson emphasized her goal was not to return claimant to defendant employer because Mr. Winne told her that claimant's return to work for A. Y. McDonald was not possible due to the union contract. Ms. Branson also expressed difficulty in obtaining Dr. Cairns' report as to claimant's restrictions. She said she had actually closed Page 4 claimant's file in 1989 when she finally received information from the doctor in May of 1990, at which time she updated the report (Jt. Ex. 11). She indicated she had called several times for the doctor to send a signed report. Ms. Branson had prepared a resume and planned for the claimant in 1989, but this was held up because of Dr. Cairns, a company authorized doctor, delaying his report until May of 1990 as to claimant's medical restrictions. This medical doctor's delay seems unexcusable. The undersigned was surprised at Ms. Branson's unfamiliarity with how any employer requires an employee to fill out an employment application and the effect a herniated disc in one's back may have on an employer's attitude. Ms. Branson did agree the best jobs for claimant as far as income is concerned would be those involving heavy duty and heavy lifting. She acknowledged claimant is trying to capitalize on his Amway business skills because of his inability to work at the more physical jobs because of his 1989 injury. R. Scott Cairns, M.D., an orthopedic surgeon, testified by way of deposition on January 31, 1990. His first contact with claimant was on January 16, 1989. He requested a CT scan shortly thereafter. The CT scan showed a disc herniation of L5-S1, left side. He determined no surgery should be done and prescribed conservative treatment which included exercising. He causally connected claimant's herniated disc to his January 8, 1989 injury. Dr. Cairns' testimony versus his detailed work limitation questionnaire is confusing (Jt. Ex. 1, p. 20-22; Jt. Ex. 3 and 4). The doctor indicates claimant could lift between 21 and 25 pounds (Jt. Ex. 1, pp. 22-23). The undersigned reads joint exhibits 3 and 4 only one way, namely, claimant is never to lift over 10 pounds. These exhibits further reflect claimant's notations. Although one of these limitation exhibits was filled out by claimant, the doctor testified that he agreed with its contents and, in fact, then eventually filled out his own and signed it. It is difficult to determine from Dr. Cairns' testimony or any of the medical records when claimant reached maximum healing period. In May 1989, it appeared claimant's herniation was enlarging on the left side. The undersigned finds that claimant's slipping episode that occurred on April 21, 1989 (Jt. Ex. 1, p. 15) which appears to have aggravated claimant's injury, was caused by claimant's medical condition resulting from the January 8, 1989 injury and was not a new or additional injury nor a substantial or material aggravation of claimant's January 8, 1989 injury. The undersigned also finds that at this point claimant was still healing. The undersigned finds that claimant reached maximum healing period on September 22, 1989 (Jt. Ex. 1, p. 20), as it appears claimant's condition was no longer changing and apparently had stabilized. Dr. Cairns opined claimant has a 10 percent impairment to his body as a whole (Jt. Ex. 1, p. 30). The doctor said Page 5 claimant would have a difficult time passing job related physicals. Dr. Cairns still ruled out surgery. Claimant made $25,565.64 while working for defendant employer in 1987, $22,938.00 in 1988, and $1,837.74 in 1989. The parties are fighting over the extent of any healing period and the extent of claimant's permanent disability. Claimant's hope is that since he is unable to work in jobs requiring the type of physical work he was doing at the time of his injury, his work with his Amway business can hopefully earn him as much money as he earned at defendant employer. This is a highly motivated goal, but obviously from the record he is far from reaching it at this time and it will take considerable effort. The undersigned is not going to speculate as to whether claimant will reach that goal. The undersigned must take the circumstances as they exist at this time. It is obvious claimant is motivated and a hard worker as he had a satellite business started while he was working for defendant employer and it appears he and his wife were also beginning selling Amway products. There is no evidence claimant ever intended to give up his main job and occupation until he was injured. There is no dispute as to this accident arising out of and in the course of claimant's employment nor the fact that there is a causal connection to claimant's herniated disc and his January 8, 1989 injury. It is obvious the employer has completely closed the door of ever hiring claimant again. They seem to blame the union contract on this problem. As indicated earlier, the injury did not cause the union contract provisions to come into existence as the contract was in existence on the date of injury and its terms were further effectuated, as a result of claimant's injury at work. Just because of his injury does not mean the employer or the employee can violate a negotiated contract. The employer was satisfied with this contract at the time of claimant's injury and cannot now blame the contract for any effect the injury may have had on claimant or employer. Claimant has a substantial loss of income and also a substantial loss of earning capacity. Claimant has a wide range of jobs which he cannot do because of this injury. Claimant has substantial limiting restrictions placed on him by Dr. Cairns. Taking into consideration those criteria in determining industrial disability such as, but not necessarily limited to, claimant's age, motivation, education, impairment, employer's refusal to give claimant work after the injury, location, severity of the injury, healing period, and lack of prior injuries, the undersigned finds claimant has a 60 percent industrial disability. The undersigned finds claimant has incurred a healing period beginning January 8, 1989 to and including September 22, 1989, totaling 36.857 weeks. conclusions of law Page 6 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." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. It is further concluded: That claimant has a 60 percent loss of earning capacity, which results in a 60 percent industrial disability. That claimant incurred a healing period beginning January 8, 1989 to and including September 22, 1989, which amounts to 36.857 weeks. order THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred sixty-two and 16/100 dollars ($262.16) for the period beginning January 8, 1989 to and including September 22, 1989, which amounts to thirty-six point eight five seven (36.857) weeks. That defendants shall pay unto claimant three hundred Page 7 (300) weeks of permanent partial disability benefits at the rate of two hundred sixty-two and 16/100 dollars ($262.16) beginning September 23, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that claimant has been paid eight-four (84) weeks of benefits. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this _____ day of September, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Mark J Sullivan Attorney at Law Fischer Bldg Ste 222 P O Box 239 Dubuque IA 52001 Mr Les V Reddick Attorney at Law 200 Cycare Plaza Dubuque IA 52001 51804; 1807 Filed September 14, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : : TERRANCE D. VOSBERG, : : Claimant, : : File No. 906860 vs. : : A. Y. McDONALD, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : _________________________________________________________ 51804 Found claimant incurred a 60% industrial disability. 1807 Employer contends union contract terms prevented employer from allowing claimant to return to work. Found claimant used this as an excuse, but did not acknowledge that the rules and contract restrictions were in place before the injury and the injury did not create the contract restrictions. The injury only triggered the rules to which the employer and employee through negotiations had agreed, which conditions mutually affected the employment, profit and wage situation of the parties. before the iowa industrial commissioner ____________________________________________________________ _____ : TERRANCE D. VOSBERG, : : File No. 906860 Claimant, : : O R D E R vs. : : N U N C A. Y. McDONALD, : : P R O Employer, : Self-Insured, : T U N C Defendant. : ____________________________________________________________ _____ The appeal decision filed February 27, 1992 contained a typographical error. The order of the appeal decision is amended to read as follows: That defendant shall pay unto claimant healing period benefits at the rate of two hundred sixty-two and 16/100 dollars ($262.16) for the period beginning January 8, 1989 to and including November 7, 1989, which amounts to forty-three point four two nine (43.429) weeks. Signed and filed this ____ day of March, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Mark J. Sullivan Attorney at Law P.O. Box 239 Dubuque, Iowa 52001 Mr. Les V. Reddick Attorney at Law 200 CyCare Plaza Dubuque, Iowa 52001 Page 1 before the iowa industrial commissioner ____________________________________________________________ : PATRICIA SANDER, : : Claimant, : : vs. : : File No. 907045 COMMUNICATIONS DATA SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Patricia Sander, against her employer, Communications Data Service, and its insurance carrier, The Hartford, defendants. The case was heard on May 22, 1990, in Davenport, Iowa. The record consists of the testimony of claimant and the testimony of Cheryl Thomsen, Mary Morrison and Laura Meyer. The record also consists of claimant's exhibit 2, pages 1, 4, 5, 6 & 7. Also admitted as part of the record were defendants' exhibits A-E. issues The sole issues to be determined are: 1) whether claimant received an injury which arose out of and in the course of her employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and, 4) whether claimant is entitled to medical benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant was representing herself at the hearing. Prior to the date of the hearing, she requested that her then attorney, James R. Keele, be allowed to withdraw. A ruling on the application to withdraw was filed on May 14, 1990, by Deputy Industrial Commissioner Helenjean Walleser. At the hearing claimant requested a continuance of the proceedings. Her oral motion was denied. Also during cross-examination claimant voluntarily left the proceedings, returned and then left again. She did not complete Page 2 cross-examination. Nor was claimant present during the testimonies of Mary Morrison and Cheryl Thomsen. At the hearing claimant was vague in her description of the alleged injury of October 18, 1988. She indicated "she felt pain" while working. Claimant was assigned to load and tend to a machine which placed inserts into envelopes. She worked at waist level while standing but was required to carry envelopes and other paper supplies. Claimant indicated she had to stretch, lift and carry 50 to 60 pounds. She attributed her pain to her repetitive activities. Under cross-examination claimant stated she first sought medical care on October 28, 1988, when she saw Ben Hanssen, D.C. Dr. Hanssen's progress notes indicate claimant saw him on November 7, 1988, but not on October 28, 1988. Claimant was also seen for her back pain at the Muscatine Health Center, P.C. She was treated by David Wettach, M.D. Dr. Wettach released claimant to return to work with defendant-employer as of December 6, 1988. Dr. Wettach, in his written release of that date, wrote: Pat may continue sit-down work only with occasional standing or walking less than 5-min. at a time. No lifting over 15 lbs. Claimant did return to work but she only worked through December 2, 1988. She did not provide her work release. Rather claimant telephoned her employer and informed Mary Morrison that she was unable to return to work. Claimant was paid benefits through December 31, 1988. She was to return to work on January 9, 1989, but she never again appeared for work. Claimant was referred to Leo Kulick, M.D., for her low back pain by Dr. Wettach. Dr. Kulick opined claimant had: Advanced degenerative facet spondylosis of the lum bosacral spine from L-3/4 thru L-5/S-l. Most severe changes are present at L-4/5. Associated changes consistent w/ DDD at L-4,5 and L-5/S-l. Page 3 In his report of March 23, 1989, Dr. Kulick wrote: Ms. Sander has been evaluated in the Orthopaedic Clinic at the Muscatine Health Center over three clinic visits on January 26, 1989, February 23, 1989 and March 16, 1989. She presented for evaluation of local mechanical lumbosacral pain, the onset of which she temporally related to the beginning of a new job as a machinist at CDS. Clinical evaluation indicates that symptoms derive from degenerative disc disease and degenerative spondylosis at multiple levels in the lumbosacral spine, primarily the caudal two motion segments. These findings are consistent with a chronic process which evolves over a long period of time. I have no doubt that Ms. Sander experiences disabling pain due to the changes in her lumbosacral spine when attempting to perform a job such as a machinist requiring prolonged standing or sitting under axial weight-bearing loads, but I cannot causaly [sic] relate the onset of her symptoms to employment at CDS. Further, by history, Ms. Sander discontinued working at CDS of her volition in September, 1988 and was not initially evaluated by me until January 26, 1989. I cannot come to any conclusions regarding her functional status prior to that date. I agree she should not return to the type of work required of her at CDS or similar occupations with physical requirements that stress the lumbosacral spine. Since Ms. Sander has failed to improve on a conservative therapeutic regimen and continues to have difficulty with even sedentary activities, she has been referred outside the clinic to be evaluated for further potential therapeutic interventions. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on November 3, 1988, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). Page 4 The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of November 3, 1988, is causally related to the disability on which she now bases her 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). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardward, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). 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, 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 sur rounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in Page 5 disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Claimant has not proven by a preponderance of the evidence that she has sustained an injury which arose out of and in the course of her employment with defendant employer. Claimant was vague in her description of the alleged work injury. Details were sketchy, at best. Claimant was not a convincing witness. There were no witnesses to corroborate her testimony, nor did any medical expert support claimant's allegations. Claimant was not credible. She testified she had a release for part-time work only from Dr. Kulick yet Dr. Kulick's notes do not reflect the same. Dr. Kulick did not causally relate claimant's condition to her employment with defendant-employer. Claimant has failed to prove her case by a preponderance of the evidence. order THEREFORE, IT IS ORDERED: Claimant takes nothing further from these proceedings. Costs of this action shall be paid by each party pursuant to Division of Industrial Services Rule 343-4.33. Page 6 Signed and filed this ____ day of July, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Patricia K. Sander 31 Coventry Lane #2 Muscatine IA 52761 REGULAR & CERTIFIED MAIL Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Sq 400 Main St Davenport IA 52801 5-1100 Filed July 24, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : PATRICIA SANDER, : : Claimant, : : vs. : : File No. 907045 COMMUNICATIONS DATA SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Claimant did not prove by a preponderance of the evidence that she sustained an injury which arose out of and in the course of her employment. Claimant voluntarily removed herself from the proceedings and refused to complete cross-examination by defendants' attorney. Page 1 before the iowa industrial commissioner ____________________________________________________________ : APRIL D. MAINS, : : Claimant, : : vs. : File No. 907447 : CLARINDA TREATMENT COMPLEX, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by April D. Mains against her former employer, the Clarinda Treatment Complex, based upon an alleged injury of January 11, 1989. The primary issues to be determined are whether the claimant sustained an injury which arose out of and in the course of employment and determination of her entitlement to compensation for healing period, permanent disability and medical expense reimbursement based upon the alleged injury. The case was heard at Council Bluffs, Iowa on April 18, 1991. The evidence consists of testimony from April D. Mains, Sharon K. Weaver, Wilma Brau and Rebecca Shilhanek. The record also contains jointly offered exhibits 1 through 50. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. April D. Mains is a 39-year-old married lady who lives at Sharpsburg, Iowa and who was previously employed at the Clarinda Treatment Complex located at Clarinda, Iowa. April has two teen-age daughters. April became a registered nurse in approximately July 1983 and commenced work at the Clarinda Treatment Complex in August 1983. Her initial assignment was as charge nurse in a psychiatric unit for females. According to April, she enjoyed her job. In September 1986, April injured her neck while in the course of her employment. The injury was subsequently Page 2 determined to be a ruptured cervical disc. Surgery was performed in early 1987. April then returned to work in September 1987 on the night shift with a restriction against activities which presented a hazard of further injury to her neck. April was assigned to a drug and alcohol abuse unit known as Pine Cottage where patients were normally held for a 30-day program. According to the evidence in the record, April performed well in that job and had no significant problems of any type. In April 1988, April applied for a transfer to the day shift. She stated that she was emotionally stable at that time. April explained that she was taking courses in business management and desired to work on the day shift in order to facilitate her course work. Becky Shilhanek, the director of nursing, assigned April to the day shift, but placed her in the unit known as Southwest Number 1, a psychiatric unit for female patients who were nearly prepared for discharge from the facility rather than the Pine Cottage unit which April desired. On approximately July 1, 1988, the Southwest Number 1 unit became a coed unit and the number of patients increased from 6 or 8 up to 15 or 20. The status of the patients was unchanged. The unit continued to be the one in which patients resided immediately prior to their discharge from the facility. April considered the assignment to the Southwest Number 1 unit to be a stressful assignment. She was concerned that psychiatric patients might need to be physically restrained. April felt that she had been promised a day shift job at the Pine Cottage unit when she made the transfer to the day shift and was upset by being assigned to Southwest Number 1. April complained that, while in Southwest Number 1, she had to work with as many as 36 psychiatric patients. She complained of being unable to take breaks and of being forced to work alone. April also complained that she was not included socially with the other registered nurses on the day shift and did not feel accepted. April's performance evaluations became less favorable. She developed a practice of arriving late for work. April was eventually reprimanded. In late fall or early winter of 1988, her supervisor had recommended that she seek counseling through the Employee Assistance Program, but April did not do so until December 1988. On January 11, 1989, April was reprimanded for coming to work late. At that point, she broke down and requested sick leave. She consulted her family physician R. F. Wilker, M.D., who took her off work and indicated that she had a work-related stress disorder and emotional upset (exhibits 2 and 4). Sharon Weaver, who was formerly employed at the Clarinda Treatment Complex as a registered nurse, related that she has had emotional problems as a result of the way she was treated while working as a registered nurse at the complex. Weaver has known April for approximately six Page 3 years. Sharon recalled that, in 1988, April was often upset while she was at work. April had indicated to Sharon that she had too many patients to handle appropriately and other problems at work. Sharon recalled that April was at times tearful and anxious, feeling that she was going to be transferred back to the night shift. Sharon related that, at times, she and April discussed April's off-work problems, but that the problems did not seem to be particularly great. Sharon was not aware that April's husband was an alcoholic or that he had physically abused her. Sharon was aware that April was unhappy with her marriage. Sharon agreed that living with an alcoholic is very difficult, that it is a very significant stressor and that families with an alcoholic often need outside help in order to survive. Sharon also agreed that spousal abuse is very stressful. Sharon related that, under some circumstances, work can be a safe place in which a person can escape from their other stresses. Sharon considered work in the Southwest Number 1 unit and in the Pine Cottage unit to be so non-stressful that it was boring. She felt that the Southwest Number 1 unit had a relatively low level of stress for employees in comparison to other units in the treatment complex. Wilma Brau, a social worker, a coworker at the treatment complex and a union official, was acquainted with April since the mid-1980's. Wilma related that she met with April regarding problems at work in 1988 and that April was upset and anxious. Wilma related that April felt pressured and harassed and displayed signs of depression. Wilma felt that most of April's problems were with her job. Rebecca Shilhanek, director of nursing at the Clarinda Treatment Complex, explained that Southwest Number 1 is considered to be the least stressful unit in the hospital. Rebecca related that April's performance had been adequate until approximately September or October 1988 when changes were observed. April became deficient in her performance with regard to preparing patient assessments, interacting with patients and other duties. In October, Rebecca counseled April to seek assistance through the Employee Assistance Program. Rebecca stated that April's problems with her husband being alcoholic and abusive were well known and that April discussed leaving him. As a result of the deficiencies in April's performance, she was placed on a 30-day evaluation schedule. April appeared to be making some progress in her improvement as noted at the January 4 evaluation, but on January 10, 1989, April was once again late for work. A written reprimand was issued. April has not since returned to work, except for a brief trial period which was not successful. After a series of unpaid leaves had been exhausted, her employment was terminated. Page 4 It is specifically found that work in the Southwest Number 1 unit was not particularly stressful as indicated by Sharon Weaver and Rebecca Shilhanek. April's testimony to the contrary is rejected. On December 6, 1988, April saw William A. Smith, a licensed social worker, through the Employee Assistance Program offered by the employer. In her meeting, she listed a number of stressors including work, an abusive marriage, the schooling she was attending and her teen-age daughters. Smith reported that he was unable to determine whether work was a primary cause of her emotional problems as opposed to the cause being a combination of all the problems. He went on to state, "I suspect no small part of the problems [sic] she is experiencing is a result of living in a chemically abusive family and with a man who is physically abusive to her." (Exhibit 3). After leaving work, April saw a number of physicians. Her family physician, Dr. Wilker, referred her to David G. Windsor, M.D., a psychiatrist. Dr. Windsor diagnosed claimant as having major depression, a substance abuse disorder which was in remission and a mixed personality disorder. He raised questions regarding claimant seeking secondary gain and a predisposition toward seeking secondary gain due to her history of involvement with alcoholics (exhibit 5). On March 4, 1989, he reported that, from a psychiatric standpoint, there was no reason why April could not be competitively employed. He questioned her motivation (exhibit 6). April also sought treatment from Kirpal Singh, M.D., a psychiatrist. His report dated April 27, 1989 diagnoses her as having an adjustment disorder. He does not express any opinions regarding the cause of her problem. April also sought treatment from psychiatrist Michael L. Egger, M.D., who saw her in the time running from May 8 through August 17, 1989. Dr. Egger reported that he advised April that she could return to work effective June 12, 1989, but her employment had already been terminated. It was his impression that she had a major depressive disorder which was work related, but that at the time he last saw her, she was free from symptoms (exhibit 13). While under treatment with Dr. Egger, April was evaluated by psychologist Mary Ann Strider, Ph.D. Her report which is dated July 7, 1989 contains the following statement, "When asked about what was most stressful, she began to talk a great deal about altercations with her husband." The report goes on to state that April was presently separated from her husband and that she had called the law in order to remove him because he was physically abusive. April revealed her husband's tendency towards alcoholism and becoming angry. The report also goes on to conclude that Strider did not see "a significant stress related disorder or post traumatic stress situation." Page 5 Strider felt that April had some underlying personality factors and marital challenges which were highly contributing to her situation. Strider felt that April needed psychiatric care [exhibit 15 (f)-(i)]. It is found that, while April D. Mains did experience a major depressive episode which likely began in late 1988 and became fully manifest when she left work on January 11, 1989, the evidence does not show the depression to have resulted from stress at her place of employment. To the contrary, the evidence most strongly indicates that her depressive disorder resulted from a combination of the stresses to which she was subjected and that the primary stress was her marital situation of living with a husband who was an alcoholic and physically abusive. When April's personal stresses are considered in comparison to what has been uniformly described by other witnesses as a non-stressful work assignment, it is determined that April Mains has failed to introduce evidence showing it to be probable that the stresses she experienced in her employment were a substantial factor in bringing about the depressive episode which she experienced. The opinion from Dr. Egger which appears to relate the depressive disorder to work stress is rejected in view of the assessments from psychologist Strider, social worker Smith and psychiatrist Windsor which indicate that work stress was not a primary problem. It is further noted that a close reading of Dr. Egger's November 6, 1989 report, where he appears to state an opinion that the condition was work related, can also be interpreted as stating that it was his initial impression that the disorder was work related without stating any final opinion or assessment. That paragraph of the report, exhibit 13, states: At the time of her first interview in May, she reported Dr. Singh had referred her, and I did receive subsequent letter from Dr. Windsor May 22, indicating she had disagreed with his perception of her goals. It was my impression that she was suffering from symptoms of major depressive disorder, and that the disorder was work related. At the time of my last appointment she was, however, symptom free. While there is no direct evidence in the record from Dr. Windsor, April herself related that Dr. Windsor did not feel that her condition was work related. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on January 11, 1989 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source Page 6 of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). When dealing with psychological injury which does not result from trauma, the claimant must prove, by a preponderance of the evidence, not only that the psychological disorder resulted from work stress, but also that the stress resulted from a situation of greater dimensions that the day-to-day mental stresses and tensions which all employees must experience. Swiss Colony v. Dep't of Indus., L. & H. R., 72 Wis. 2d 46, 240 N.W.2d 128 (1976); School Dist. #1 v. Dep't of Indus., L. & H. R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974); Desgranges v. Dep't of Human Services, file number 760747 (App. Decn., August 19, 1988). The work must provide something more than the setting in which the emotional disorder manifests itself. Newman v. John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 (Iowa 1985). It is noted that work as a psychiatric nurse in a psychiatric or substance abuse facility can be stressful work. It is also noted, however, that April was assigned to work in what was probably the least stressful unit in the facility. The evidence does not support April's contention that her work was particularly stressful. To the contrary, she appears to have performed well until late 1988. On the other hand, April was living in a family situation which involved both alcohol abuse and physical abuse, a situation which is normally quite stressful. It is therefore concluded that April has failed to prove, by a preponderance of the evidence, that her depressive episode or any emotional or psychological problem or disorder was proximately caused by any stress to which she was subjected as a result of her employment at the Clarinda Treatment Complex. She has failed to prove, by a preponderance of the evidence, that she sustained any injury which arose out of and in the course of her employment. She is entitled to no recovery. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ Page 7 MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 5-1402.30; 5-2204 Filed April 25, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : APRIL D. MAINS, : : Claimant, : : vs. : File No. 907447 : CLARINDA TREATMENT COMPLEX, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.30; 5-2204 Claimant failed to prove that depressive episode was caused by work stress. The evidence indicated it was more likely associated with her family situation which involved an alcoholic husband who physically abused her. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RICK LEE HOPKINS, Claimant, vs. File No. 907454 STEVERS SANITATION, INC., A P P E A L Employer, D E C I S I O N and UNITED FIRE & CASUALTY, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 8, 1993 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of April, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Patrick Curran Attorney at Law P.O. Box 936 Ottumwa, Iowa 52501 Mr. John C. Stevens Attorney at Law 122 E. 2nd St. Muscatine, Iowa 53761 1402.40 Filed April 27, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RICK LEE HOPKINS, Claimant, vs. File No. 907454 STEVERS SANITATION, INC., A P P E A L Employer, D E C I S I O N and UNITED FIRE & CASUALTY, Insurance Carrier, Defendants. ____________________________________________________________ 1402.40 Claimant's credibility was severely impaired. As a result thereof all medical histories given by him were considered unreliable as were his descriptions of his symptoms. The net result was that claimant failed to recover any permanent partial disability or any of the medical expenses which he sought to have paid. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RICK LEE HOPKINS, : : Claimant, : : vs. : : File No. 907454 STEVERS SANITATION, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Rick Lee Hopkins against his former employer based upon a stipulated injury of December 22, 1988. The issues for determination are the extent of claimant's entitlement to healing period or temporary total disability, permanent partial disability compensation, medical expenses and a vocational rehabilitation benefit pursuant to section 85.70 of the Code. The case was heard at Des Moines, Iowa, on August 26, 1993. The evidence consists of claimant's exhibits A, B, C, D, E, and G and defendants' exhibits 1 through 8. Exhibit 8 is the deposition of Robert Dallas Jones taken September 10, 1993. The witnesses who testified at hearing are the claimant, Matthew Rizzo, Karen Kurtz, William Sedor, James L. Stogdill, D.C., Harry Stever, and William Catalona, M.D. FINDINGS OF FACT Rick Lee Hopkins is a 33-year-old man who lives at Drakesville, Iowa. The employer stipulated that he was injured on December 22, 1988. The incident of injury which Hopkins described was that he was operating the employer's garbage truck and that while pushing up on a dumpster a chain holding it slipped and the dumpster fell, approximately a foot, against his right shoulder and neck area. Hopkins has not resumed employment of any type or nature since that incident. The record does not show any significant work search activity on his part. The record has a great amount of discrepancy regarding what happened following that incident as far as what was done with the truck which Hopkins was operating. Following the incident claimant eventually was seen by Orthopedic Surgeon Donald D. Berg, M.D. He has subsequently Page 2 received extensive medical care from a number of providers. He has also been examined extensively. The only anatomical abnormality which has been discovered is a bulging disc in his cervical spine. Some of the physicians who have seen him relate his continuing severe symptoms and complaints to the bulging disc while others do not. Claimant has received conserative treatment for his complaints and cervical epidural steroid injections. At the time of hearing more than four years had passed since the date of the injury. It was a seemingly minor event, yet the claimant remains purportedly totally disabled from all gainful employment. It is found that the claimant's description of his symptoms, complaints and of what happened on December 22, 1988, is not reliable. The claimant's appearance and demeanor when he appeared at hearing is a factor in making this determination. It is found that the assessment of the case made by Dr. Berg in early 1989 is correct (exhibit E, deposition ex. 3). Claimant was seen with symptoms on January 14, 1989, approximately four weeks after the date of injury. Dr. Berg had him in therapy and indicated that he may need one to two weeks off work before he could return. Claimant never returned to work. He never returned to Dr. Berg until June 1989. This is sufficient intervening time that any problems or disability which currently exist cannot be attributed to whatever it is that actually happened on December 22, 1988. The fact that claimant sought no medical care for a period of approximately five months is a strong indication that he was not particularly symptomatic. The care was then freely available to him. While there may have been a time at which the defendant insurance carrier cut off medical care, that time was long after January 1989. James L. Stogdill, D.C., who saw claimant on December 22, 1988, observed no signs of recent acute trauma other than the claimant's complaints and some tight muscles. As a result of the unreliability of the claimant's testimony, the medical histories which he has given and the description of his complaints are all found to be unreliable. The assessment made by the physicians should be corroborated by objective findings. As indicated by Doctors Rizzo and Catalona, there are no objective findings present in this case which would warrant any award of permanent disability. It is found that the record in this case fails to show that it is probable that any complaints or treatment that Rick Hopkins had subsequent to the end of January 1989 were a result of the December 22, 1988 injury. The only consistent symptoms which has been observed by the physicians is what might be described as a stiff neck. A stiff neck would not be something which should render a person totally unemployable for a period of nearly five years. The undersigned is convinced that some force or motivation is present in this case other than the results of an injury. As indicated by Robert D. Jones, the Page 3 psychologist, psychological factors of some kind are likely contributing to this claimant's complaints of pain and disability. There is nothing in the record which suggests that those psychological factors were caused or significantly aggravated by whatever injurious event occurred on December 22, 1988. The record fails to show it to be more likely than not that any of the medical care which Rick Lee Hopkins received subsequent to January 31, 1989 was rendered reasonable or necessary as a result of the December 22, 1988 injury. 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 claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). When an employee is disabled as a result of an injury, the employee is entitled to recover weekly compensation for temporary total disability or healing period until such time as the employee has returned to work or becomes medically capable of returning to employment substantially similar to that in which the employee was engaged at the time of injury. If the injury caused some permanent disability the Page 4 healing period may end at the time that significant improvement from the injury is not anticipated. (Iowa Code sections 85.33 and 85.34). In this case it is found that by the thirty-first day of January 1989, Rick Lee Hopkins had recovered from the injury of December 22, 1988, as indicated by the expectations in the records of Dr. Berg and as indicated by the fact that he did not return to Dr. Berg. He is therefore entitled to recover temporary total disability compensation running from December 22, 1988 through January 31, 1989, a span of five and six-sevenths weeks. The stipulated rate of compensation in this case is $224.74 per week. It was further stipulated that the claimant had been paid his salary from the date of injury until January 15, 1989 and that he had been paid workers' compensation benefits from January 16, 1989 through March 10, 1989, at the rate of $224.74. Accordingly, Rick Lee Hopkins has been paid all that the record in this case shows that he is entitled to receive under the Iowa workers' compensation laws. The record in this case fails to show it to be probable that the December 22, 1988 injury produced any permanent disability of any nature whatsoever. Claimant has failed to prove by a preponderance of the evidence that he is entitled to any additional recovery available under section 85.27 of the Code of Iowa. Claimant seeks a vocational rehabilitation benefit. In view of the fact that the record has failed to prove that any permanent disability resulted from the injury of December 22, 1988, claimant has failed to prove an entitlement to a vocational rehabilitation benefit under the provisions of section 85.70 of the Code of Iowa. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. It is further ordered that the costs of this action are assessed against the claimant. Page 5 Signed and filed this ____ day of December, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Patrick Curran Attorney at Law 419 Church st PO Box 936 Ottumwa, Iowa 52501 Mr. John C. Stevens Attorney at Law 122 E. 2nd St Muscatine, Iowa 53761 1402.40 Filed December 8, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RICK LEE HOPKINS, Claimant, vs. File No. 907454 STEVERS SANITATION, INC., A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE & CASUALTY, Insurance Carrier, Defendants. ___________________________________________________________ 1402.40 Claimant's credibility was severely impaired. As a result thereof all medical histories given by him were considered unreliable as were his descriptions of his symptoms. The net result was that claimant failed to recover any permanent partial disability or any of the medical expenses which he sought to have paid. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHRIS NORMOYLE, : : Claimant, : : vs. : : File No. 907588 DAVENPORT AND SCOTT COUNTY YMCA,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : BITUMINOUS CASUALTY INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by claimant, Chris Normoyle, against Davenport and Scott County YMCA, employer and Bituminous Casualty Insurance Company, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensa tion Act for an alleged injury on January 12, 1989. This matter was scheduled to come on for hearing at 12:30 p.m. on August 3, 1990, at the Bicentennial Building, Scott County Department of Health, in Davenport, Iowa. The undersigned was present. Neither claimant nor defendants appeared. summary of the evidence Claimant failed to present any evidence in support of the allegations found in his original notice and petition. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file. Claimant has the burden of proving by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). findings of fact WHEREFORE, it is found: 1. Neither claimant nor defendants appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable injury. order Page 2 THEREFORE, IT IS ORDERED: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant take nothing from this hearing. Costs are taxed to the claimant pursuant to Division of Industrial Services Rule 343-4.33 Signed and filed this ____ day of August, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Peter Soble Attorney at Law 500 Plaza Office Bldg. Rock Island, IL 61201 Mr. John C. McAndrews Mr. Peter Fieweger Attorneys at Law 200 Plaza Office Bldg Rock Island, IL 61204 Page 1 51400; 51402 Filed August 3, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : CHRIS NORMOYLE, : : Claimant, : : vs. : : File No. 907588 DAVENPORT AND SCOTT COUNTY YMCA,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : BITUMINOUS CASUALTY INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51400; 51402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant, therefore, failed to meet his burden of proof. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM J. KUHLE, : : Claimant, : : vs. : : File No. 907602 GEISLER BROTHERS CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE CINCINNATI INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on April 13, 1993, at Dubuque, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an injury occurring on December 5, 1988. The record in this proceeding consists of the testimony of the claimant; joint exhibits 1 through 9; and defendants' exhibits 1 and 2. ISSUES The issues for resolution are: 1. The extent of claimant's permanent disability and entitlement to disability benefits; 2. An 85.27 medical benefit issue, basically claimant's entitlement to $490.50 for the alleged cost of Advil (ibuprofen), and $472.29 for mileage, represented by joint exhibit 6; and, 3. Court costs shown on joint exhibit 7. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 34-year-old high school graduate. Claimant related his post-high school history which in part involved working as an assistant night manager at a Burger King,then maintenance, pushing a broom and unloading boxcars. He indicated some of his work involved refrigeration and lifting large tractor tires weighing 100 to 150 pounds, and helping in some sheet metal work. Claimant had no trouble in these jobs nor any problems Page 2 lifting. Claimant went into a three year sheet metal apprenticeship program in September 1978. His apprenticeship program required three years of night school going to classes six times a month four hours at a time. He testified that the sheet metal job required lifting 100 to 150 pounds at one time, depending on the job. He indicated he operated an air hammer only twice and indicated he could not operate an air hammer now. Claimant related a September 1984 incident wherein he hurt his back. Claimant indicated he recovered from this, and that there was no residue from this injury and it will not be further discussed. Claimant related that from this 1984 incident up to December 5, 1988, he had no back pain or numbness in his right leg. Claimant also related a 1985 left knee surgery in which there was no residue or any issue concerning the same in this case at bar. Claimant related the many activities he participated in prior to his December 5, 1988 injury. Those activities involved but not necessarily limited to rock climbing, cross country skiing, hunting, fishing, snowmobiling, doing yard work, gardening, etc. Claimant related how he injured himself on December 5, 1988, while working for defendant employer and attempting to pick up a four by eight foot louver. Claimant went through conservative treatment and a certain exercise program. A Ct scan disclosed that claimant had a ruptured disc at L5-S1. Claimant had surgery on January 29, 1989, in which part of his herniated disc was removed. Claimant was off work for approximately three months after the surgery and related his understanding of the restrictions under which he was to operate. Claimant was prescribed a regular exercise program which he indicated he performed. He indicated he still had pain and numbness in his low back and down his right leg. Claimant indicated he was told to take Advil which he said he took and that this helped with the pain. Claimant estimated the average number he took and joint exhibit 6 is his estimate which amounts to a total of $490.50. Claimant had no specific bills or dates. Claimant related that he was off work again for approximately nine weeks beginning around March of 1991, when he had a flare-up with his back. The parties stipulated that he was off work from March 15, 1991 to and including May 5, 1991, and was paid healing period for this period. Claimant related the various places he has worked. He works out of the union hall at union shop companies. Claimant related that there is usually a period each year in which he is laid off due to the time of year and inclement weather. It is usually in the late part and early part of the year. Claimant related that when he was released in May of 1991, the doctor recommended certain limits and restrictions and that when he had his last medical appointment in June of 1991, at which time he complained of right leg numbness and pain in his lower back, the doctor wanted him to stay on his exercise program and watch his Page 3 activities. He indicated all of his restrictions at that time are still current. Claimant indicated that when he went to the doctor in 1991, the doctor indicated there is not much more the doctor can do for him and that he would just have to live with the condition. Claimant related there are certain things involved with his work that he has to be careful doing or things that cause problems, one of which is working a break clutch on certain equipment. He indicated any kind of twisting, particularly repetitively, causes pain and problems. Claimant testified there are certain actions or movements he must do in connection with his sheet metal job, such as kneeling, crawling, working in crawl places, lifting, reaching. He said he cannot do some of these things for very long and that he performs his work slower than he did before his December 1988 injury. Claimant again related the many activities he did before his December 5, 1988 injury, such as fishing, boating, hunting snowmobiling, gardening, etc. It appears from his testimony that claimant is doing all those same activities now since his injury but indicated that he is doing them in a lesser degree of frequency. It appears to the undersigned that there is nothing claimant did before December 1988 that he cannot do now. The undersigned questions whether claimant is actually limiting himself in some of these activities to a lesser degree than he did prior to December 5, 1988, even though he may have some pain when he does them now versus when he did them prior to December 5, 1988. Claimant testified as to the various union shops for which he has worked before and after his injury. It appears that claimant is still able to do the work that he was doing prior to December 5, 1988. Claimant said he isn't required to take a physical when he goes out on a job. Claimant has taken jobs outside of town and outside of the state and does travel to the jobs. On cross-examination, claimant was asked extensively regarding certain questions and answers he gave in his deposition taken March 25, 1993. Claimant was also referred to his income tax returns. Claimant acknowledged that basically his income situation, other than in the year of his injury and any effect his flare-up in March of 1991 had on his work, is basically earning the same or similar if not more income on an average than he was earning at the time of his injury, and that basically he is at an economic income status that he anticipated he would be in. Claimant did not anticipate any change in his overall income situation and that the amount or extent of work would be somewhat steady or similar as it has been for 1993. It is obvious to the undersigned that under the current circumstances if there is a variance it would be because of lack of work and not because of claimant's current medical situation, particularly based on the situation existing in the last two or three years. Claimant acknowledged that he has never refused a job due to his injury or any medical condition and Page 4 has taken any available work in town or out of town. Claimant even put his name on the list at the union hall that he is willing to travel and this is an additional item that makes claimant more available for work because he is willing to travel, particularly if there is a question of work available. Claimant acknowledges he does the same thing now that he did before surgery even though they may take longer to do them and he must be more careful. Claimant acknowledged he does have some basic skills as an electrician and picked up his knowledge of that by learning and doing such work and watching others. Claimant testified that at the time of his injury in 1988 he was making $15.71 and that now he is making $16.82 per hour. Claimant was questioned as to his income from the years 1986 through 1992 and was specifically referred to joint exhibit 9 in which he acknowledged these figures are correct and this exhibit was a summary of his income reflected on his tax returns. Claimant's income for the two years prior to his December 5, 1988 injury was $26,988 and $34,994, respectively. In 1988, it was $28,986 and he hadn't worked because of his December 5, 1988 injury for the rest of 1988. Claimant indicated 1987 was a very good year and that there is fluctuation from year to year in income depending on job availability, etc., and that he wasn't necessarily surprised that 1988 was less. Claimant's 1989 income was $19,112. The parties stipulated that claimant had been off and receiving healing period from December 6, 1988 to and including May 1, 1989. Claimant's income in 1990, 1991 and 1992 was $34,741, $29,754 and $33,352, respectively. In 1991, he had a flare-up in his back which was the result of his December 5, 1988 injury and was off work nine weeks. Joint exhibit 2, at page 6, reflects that a CT scan of claimant's lumbar spine showed a large disc herniation at L5-S1 level, and page 7 indicates that on January 29, 1989, claimant was admitted to the hospital for a laminectomy and a discotomy at L5-S1 on the right. Joint exhibit 2 reflects the medical records of claimant and the various notes and treatment with Anthony Piasecki, M.D. Page 14 reflects the last visit claimant had with Dr. Piasecki which was June 5, 1991. Claimant had been back to work for a month after he had had that flare-up to which the parties had stipulated and claimant was paid healing period beginning March 15, 1991, to and including May 5, 1991. Claimant was advised to continue his back exercise program and use caution at work. Claimant at that time was complaining of occasionally getting a backache and having some numb feeling in his leg. On January 30, 1990, at page 25 of joint exhibit 2, Dr. Piasecki opined using the AMA tables that claimant had a 13 percent impaired function of a total person because of his December 5, 1988 injury. Claimant still had some residual complaints in his back and leg but had been able to continue working. On page 30 of this exhibit there is a May 3, 1991 limitation report in which the doctor indicated that claimant should avoid heavy lifting effective May 3, 1991 Page 5 and that there should be a follow-up evaluation in one month. Claimant seemed to give the impression that the doctor has restrictions of no prolonged sitting, standing, twisting, stooping and certain lifting. In looking at the medical record, it appears that the most recent indication of limitation on claimant is Dr. Piasecki's June 5, 1991 notes in which he indicates that claimant is continuing his back exercise program and uses due caution in his work and if he is having problems he is to return. He indicates that if claimant watches himself and doesn't do too strenuous of a job, he can carry on. There is no further evidence of the fact that the restrictions would continue or not continue. It would seem common sense that claimant with his back surgery should avoid strenuous work but claimant's actions have spoken for themselves in the last two years. Claimant seemed to indicate that these restrictions in 1991 are the current restrictions. Claimant's exhibits extreme motivation and a zeal to work. Defendants have admitted that claimant was injured and incurred a back injury resulting in a 13 percent permanent functional impairment. Defendants paid the claimant based on the 13 percent impairment and paid him what is equivalent of a 13 percent industrial disability, namely, 65 weeks. Defendants contend that claimant is owed no more. Defendants fully realize that impairment is one item to be used in determining the extent of industrial disability but emphasized that in claimant's situation with the facts we have here, that is the only factor that is really applicable and that none of the other factors in any way result in an increase over and above the 13 percent. Of course, claimant disagrees. There is no question that claimant has had a remarkable recovery and results. Claimant has had no loss of income and he returned to work and is basically carrying on the same as he did before his injury other than he has to watch himself and obviously does have some limitations to the extent of being careful of what he lifts and how he performs his job. He also indicates, which would be reasonable, that he may be operating on a little slower basis than he was prior to injury which would be good judgment on his part. The fact is he has lost no work, has made himself available for all the work he can possibly do, including volunteering for out of town travel. Claimant is obviously highly motivated. Claimant is still very active in most if not all activities he participated in prior to his injury and prior to his surgery. The evidence shows that claimant is of such a nature that he likes to work, likes to stay active. The undersigned believes he is bothered by his impairment when he does certain activities. The evidence shows that since his injury claimant has not worked again for the defendant employer. It appears the defendant employer is, from claimant's own testimony, one of the busiest of all the sheet metal union shops in the area. To date, it appears Page 6 that there has been sufficient work with the other union shop sheet metal companies so that claimant has been able to keep busy and earn substantially similar income as he did before his injury. One of the Giesler brothers from the defendant company was in the courtroom during the trial and defendants decided not to have him testify. Only the defendant employer could state why there seems to be a reluctance to hire the claimant. It would be logical for the undersigned to conclude that because of claimant's work injury and impairment and because defendant employer knows claimant in that respect more than other union shops, defendant company is fearful that claimant may again injure himself or can't do all the lifting requirements as an uninjured employee. It has been four and one-half years since claimant's injury and you would think in that period of time claimant would have had occasion to do work for defendant employer. There appears to be approximatelty three main sheet metal union shops in Dubuque. Defendants' attorney cross-examined the claimant both at the hearing and extensively at the time of taking claimant's deposition in March of 1993 as to claimant's understanding of industrial disability and/or loss of earning capacity. Basically, industrial disability and loss of earning capacity are synonymous. Claimant is not expected to know nor is the claimant actually qualified to determine what the loss of earning capacity is under the workers' compensation law. In fact, medical personnel are not qualified. Only the undersigned is qualified to decide in this trial setting whether claimant has a loss of earning capacity-industrial disability. In listening and seeing claimant's explanation and answers to the defendants' attorney's questions, it is obvious that claimant is talking about loss of income which many lay people including medical personnel mistakenly equate with loss of earning capacity. There is no question that the claimant has not had a loss of income as a result of his injury. He is making as much now as he was at the time of his injury and in fact making more except with inflation and raises it would be somewhat comparable to what he was making at the time of his December 5, 1988 injury. It is true that functional impairment is one element of many in trying to decide one's industrial disability. It is true that one can have a lower degree of disability than what a permanent functional impairment would be or one could have a higher industrial disability than the impairment or it could be the same. Claimant is 34 years of age. Although he only has a high school education, he seems to also have some basic skills in electrical work which he picked up on his own. Claimant has done heavy manual work most of his working life. It is in this type of industry that claimant has his skills and expertise and reputation. Claimant is in an industry that strength of the body, of one's back, one's arms, ability to reach, lift, crawl, stoop, twist, walk for a lengthy period time, stand for long periods of time is Page 7 necessary. Claimant is lucky that when he works out of the union hall all those either requesting his help or those companies to which he is sent to work do not require a physical. The fact is claimant has a back condition that is very susceptible to future injuries if he is not extra careful. One can be punished industrially for lack of motivation. One with extreme motivation like claimant should not be punished. He should be congratulated for his zeal to overcome adversity. The undersigned finds that claimant does have a loss of earning capacity. The undersigned, in considering claimant's age, education, his prior and post-injury medical and work history, the location of his injury, the severity of his injury, his healing periods, one of which was over four and one-half months, and the second one was approximately nine weeks, the second healing period being the result of a flare-up approximately two years after the end of his last healing period, claimant's motivation, functional impairment, any restrictions, finds claimant has a 20 percent industrial disability. Claimant contends he has incurred $490.50 for the cost of Advil (ibuprofen) which he takes for the pain or pain relief over the last several years. The only evidence is claimant's word and estimate as to how many pills he has taken over the period of time per day or per month. See joint exhbibit 6. The undersigned believes that due to the nature of claimant's injury, the location, and the nature of claimant's work and the activities he otherwise participates in, he does have pain and it would be logical to believe that he has to take considerable pain relief medicine. The undersigned finds that defendants shall pay claimant the $490.50 as reimbursement for the Advil expense claimant has incurred over approximately the last four and one-half years. The undersigned realizes that since this is not a prescription-type drug that the nature of the records that could possibly otherwise be kept are not as easily done or retrieved as is the case with prescription drugs. Claimant seeks reimbursement for mileage as also represented by joint exhibit 6 in the amount of $472.29. There has been no contrary evidence as to this testimony or the items listed on joint exhibit 6. The undersigned finds that defendants shall reimburse claimant the $472.29 for his mileage expenses. The parties do not disagree as to the costs involved as represented by joint exhibit 7. The only dispute is that defendants desire claimant to pay and vice versa. The undersigned finds that defendants shall pay the costs of this action as set out on joint exhibit 7. Page 8 conclusions of law 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 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). It is further concluded that claimant has incurred a 20 percent industrial disability as a result of his December 5, 1988 work injury, which injury caused claimant to incur the Page 9 industrial disability set out herein and caused claimant to incur a permanent functional impairment to his back and caused him to have a laminectomy and discotomy at L5-S1 on his lower back. Defendants shall reimburse claimant for $490.50 for the Advil (ibuprofen) that claimant took as set out in joint exhibit 6 and that defendants shall reimburse claimant for $472.29 in for the mileage incurred for claimant's medical treatments and therapy as set out in joint exhibit 6. ORDER THEREFORE, it is ordered: That claimant is entitled to one hundred (100) weeks of permanent partial disability benefits at the weekly rate of three hundred ninety-two and 99/100 dollars ($392.99), beginning May 2, 1989 and interrupted for a period beginning March 15, 1991 to and including May 5, 1991 and beginning again May 6, 1991. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid claimant sixty-five (65) weeks. All healing period was not in dispute and has been paid in full for the periods beginning December 6, 1988 to and including May 1, 1989, and March 15, 1991 to and including May 5, 1991. That defendants shall pay claimant's four hundred ninety and 50/100 ($490.50) as medical reimbursement for the Advil claimant purchased and four hundred seventy-two and 29/100 dollars ($472.29) for reimbursement for the medical mileage, all as represented by joint exhibit 6. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Francis J Lange Attorney at Law 1141 Main St P O Box 1811 Page 10 Dubuque IA 52004-1811 Mr Arthur F Gilloon Attorney at Law 800 Town Clock Plaza P O Box 857 Dubuque IA 52004 5-1803 Filed April 21, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM J. KUHLE, : : Claimant, : : vs. : : File No. 907602 GEISLER BROTHERS CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE CINCINNATI INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant awarded 20% industrial disability.