BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAMES E. BROWN, JR., File Nos. 1052984 Claimant, 909859 vs. A R B I T R A T I O N IOWA STATE WOMEN'S REFORMATORY, A N D Employer, R E V I E W - and R E O P E N I N G STATE OF IOWA, D E C I S I O N Insurance Carrier, Defendant. ________________________________________________________________ STATEMENT OF THE CASE This is a consolidated proceeding in arbitration and review-reopening brought by James Brown, claimant, against the Iowa Department of Corrections and the Iowa State Women's Reformatory, employer, hereinafter referred to as the prison, a self-insured defendant, for workers' compensation benefits as a result of a prior injury on February 9, 1989 and an alleged new injury on March 4, 1993. A prior final arbitration decision for the injury of February 9, 1989 was filed on November 1, 1991. On February 28, 1995, a hearing was held on claimant's petitions and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. On March 4, 1993 claimant received an injury arising out of and in the course of employment with the prison. 2. Claimant is not seeking temporary total or healing period benefits in this proceeding. 3. If the injury of March 4, 1993 is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. At the time of the injury on March 4, 1993, claimant's gross rate of weekly compensation was $697.00; he was married; and, he was entitled to two exemptions. Therefore, claimant's weekly rate of compensation is $426.32 for the injury of March 4, 1993 according to the industrial Commissioner's published rate booklet for this injury. 5. It was stipulated that the providers of the requested medical expense would testify as to its reasonableness and defendant is not offering contrary evidence. It was agreed that the requested bill was causally connected to the work injury of March 4, 1993. During the hearing, the issue of re-credit of sick leave due to a 16 hour absence from work for treatment of the work injuries was settled and the issue was withdrawn. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to permanent disability benefits. II. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is unnecessary to this decision as defendant did not appear to placed claimant's credibility at issue during the hearing. The findings in the arbitration decision of November 1, 1991 are incorporated by reference. Briefly, this agency previously found that claimant suffered several work injuries to his low back, shoulder and neck. Claimant is a retiree from the U.S. Air Force. His entire 20 year military experience involved food service mostly as a mess sergeant. Since leaving the military, claimant's primary employment has continued in food service, except for a brief period of insurance sales and custodian work in the state of Kansas. He has worked for the state of Iowa since 1980. Since 1983, he has been food service director at the prison. Although his primary duties are managerial, he is asked routinely to perform manual labor foods service and cooking duties. Claimant was injured in the performance of his food service director duties. After recovery from treatment of the injuries, he returned to his prison job without loss of pay. He was found at that time to have suffered only a modest 10 percent permanent partial industrial disability. At the present time, claimant has the same restrictions on activities as set forth in page 7 of the November 1, 1991 arbitration decision. There has been no change in impairment ratings. Claimant continues in his director job at the prison. Claimant's testimony establishes that the only change in duties since the arbitration decision is the elimination of storeroom duty without loss of pay or position. The state continues to accommodate for his disability. The March 4, 1993 injury occurred when claimant twisted to open a sliding gate on the prison grounds. He sought treatment for increased back pain from Herbert Rosen, D.O. Dr. Rosen's $40.00 bill for such services is the only medical bill in dispute. There is nothing in the record to suggest the claimant asked to see Dr. Rosen before he sought this treatment. However, it is clear that he immediately reported the injury to his superiors and there is nothing in the record to show that any particular treatment was offered. This claim of injury was denied in the answer and not admitted until the hearing in this proceeding. Interestingly, claimant was disciplined by a letter of reprimand as a result of the injury. Apparently, one of his job standards is to avoid injury. Consequently, even though he may not have violated any activity restriction, he is in violation of work rules if he suffers a work injury. Defendant apparently filed an answer herein denying the occurrence of the injury after it had disciplined claimant for allowing the injury to happen. Claimant asserts that his condition today is worse than at the time of the 1991 decision. He believes that the new injury aggravated this prior injury. He complains of increased pain and discomfort which has greatly disrupted his personal life and has made working at the prison more difficult. No physician has opined that his condition has worsen. He also states that he is in fear of losing his job and that he has been warned that continued absences from work due to additional work injuries or pain from past injuries would result in the loss of his job. Claimant's superiors at the prison deny this and point to satisfactory past performance evaluations. Given the policy of disciplining employees for reporting work injuries, claimant's fears for the future may be justified. However, a loss of money or job status has not as yet occurred and it would be speculative to assess the probability of a loss of earning capacity from such a disciplinary policy. At the present time, claimant's loss of quality of life due to his back, neck and shoulder pain has not affected his earning capacity. It is found that nothing that has occurred since the arbitration decision, including the new work injury of March 4, 1993, to increase his industrial disability beyond the 10 percent amount found in the arbitration decision of November 1, 1991. Despite some increase in subjective pain complaints, the prison continues to accommodate for claimant's injuries and claimant remains employed as before. CONCLUSIONS OF LAW I. In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence that he suffered a change of condition or a failure to improve as medically anticipated as a proximate result of his original injury, subsequent to the date of the award or agreement for compensation under review which entitles him to additional compensation. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Meyers v. Holiday Inn of Cedar Falls, 272 N.W.2d 24 (Iowa Ct. App. 1978). Such a change of condition is not limited to a physical change of condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition under Iowa Code section 85.26(2) and 86.14(2). See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, afterthe injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc., Vol. I, No. 3 Iowa Industrial Comm'r Decisions 654, 658 (App. February 28, 1985). In the case sub judice, claimant failed to show that he suffered additional loss of his earning capacity as a result of any physical or non-physical change of condition since the November 1, 1991 arbitration decision, including the occurrence of the new work injury on March 4, 1993. The only significant new circumstance stems from a rather odd policy of disciplining an employee for injuring himself by performing job related activity within his restrictions. It may be that such a policy is contrary to the public policy of this state. However, until there is an economic loss from implementation of such a policy, nothing can be done by this agency. It certainly would be actionable before this agency if future discipline results in loss of employment or job status adversely affecting earning capacity. Such action would also be actionable in tort. However, fear that this will happen sometime in the future, even if somewhat justified, is not compensable at the present time. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. In the case at bar, the only disputed medical bill is that of Dr. Rosen for the treatment following the March 4, 1993 injury. This claim of injury was denied until the date of hearing. This agency has held that it is inconsistent to deny liability and the obligation to furnish care on one hand and at the same time claim a right to choose the care. Kindhart v.Fort Des Moines Hotel, I Iowa Industrial Comm'r Decisions No. 3, 611 (App. 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Comm'r Report 16 (App. 1981). Therefore, the medical expenses requested will be awarded. ORDER 1. The review-reopening petition involving the injury of February 9, 1989 is dismissed with prejudice. 2. With reference to file number 1052984 for the March 4, 1993 injury, defendant shall pay the forty and no/l00 dollars ($40.00) medical expense of Dr. Rosen listed in the hearing report. 3. Defendant shall pay the costs of both of these actions pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fees paid in this matter. Signed and filed this ____ day of April, 1995. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law 1200 35th STE 500 West Des Moines IA 50266 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES E. BROWN, JR., : : File Nos. 909859 Claimant, : 941719 : 894653 vs. : 864419 : 946038 IOWA STATE WOMEN'S : REFORMATORY, : : 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 James E. Brown, Jr., against the Iowa State Women's Reformatory, employer, and State of Iowa, as the insurance carrier, as defendants. Claimant has alleged five separate injury dates: September 17, 1987 (agency file 864419); August 10, 1988 (agency file 894653); February 9, 1989 (agency file 909859); October 9, 1989 (agency file 946038); and, February 15, 1990 (agency file 941719). The matter came on for hearing on August 15, 1991, at Des Moines, Iowa. The evidence in the case consists of the testimony from the claimant; Gloria Sapp, business manager for the Women's Reformatory; joint exhibits 1 through 15; and, defendants' exhibits A, B, D, E and F. issues The defendants deny that claimant sustained injuries which arose out of and in the course of his employment on September 17, 1987 and October 9, 1989. They admit that he sustained an injury which arose out of and in the course of his employment on August 10, 1988; February 9, 1989; and February 15, 1990. The remaining issue is to determine whether claimant is entitled to permanent partial disability benefits. findings of fact The undersigned deputy, having reviewed all the evidence received and having presided at the hearing, finds Page 2 the following facts: Claimant, James Brown, Jr., was born on February 6, 1938. At the time of the hearing, he was 53 years of age. Claimant graduated from East High School, in Des Moines, Iowa, in January of 1956. He joined the air force in January of 1956 and served for 20 years, retiring in 1976. Claimant attempted to return to school at Central Missouri State in March of 1976, but was unable to finish any courses. While serving in the air force, claimant's duties were concentrated in the food service field. He underwent food service training, a twelve week course which concentrated on sanitation, management and budget. Claimant started out as a cook and dishwasher and subse quently graduated to supervisor and shift leader. He was in charge of missile feeding, which consisted of preparing dining facilities at seven missile sites and coordinating 21 people within the food service department. Specifically, his duties included scheduling personnel; providing on-the- job training for personnel; supervising food orders; balancing the budget; delivering foods to various sites; inspecting and taking inventory; and, working as a custodian for the facility. Since 1976, claimant has worked as a cook, part-time life insurance salesperson, and as a custodian/janitor. Claimant has worked as the director of food service at the Iowa Women's Reformatory in Mitchellville, Iowa, since April of 1983. His usual duties consist of ordering food supplies; scheduling staff and inmate help; monitoring sanitary aspects of the facility; supervising food preparations; accounting and bookkeeping; and, working in the kitchen as a food preparer. Claimant's first claim arises from an injury he alleges occurred on September 17, 1987. Claimant stated that as he was unloading salt at the Mitchellville facility, he twisted his back on the right side in the rib cage area. He was off work for three to four days and received heat treatment prescribed by Herbert Rosen, D.O. Dr. Rosen's notes indicate that upon physical examination, claimant was suffering from acute right chest pains; right-sided/mid back strain; right post rib cage strain; and, separation of the costo-chondral ribs. He anticipated no permanent defect, and identified no fractures. After approximately one week of treatment, he released claimant to return to work without restrictions (Joint Exhibit 1, pages 234-242). The next injury alleged is that of August 10, 1988. Claimant testified that in August of 1988, as he was moving file cabinets, he twisted his low back and received treatment from Dr. Rosen. Upon physical examination, Dr. Rosen found spastic myofascitis; low back strain; secondary Page 3 radiculitis; bilateral sciatic nerves; and, weak lower extremities. It was unknown whether claimant would sustain any permanent disability from the incident, and, claimant was referred to William Boulden, M.D. (Jt. Ex. 1, pp. 104, 181, 202-220). Claimant was seen by Dr. Boulden on September 8, 1988. X-rays and a CT scan did not reveal anything significant, and there was no evidence of a herniated disc or stenosis. He was taken off of work for several weeks, and followed up with Dr. Boulden on September 29, 1988. He displayed improved mobility, and claimant was given a release to return to work on October 10, 1988. Dr. Boulden opined that claimant had not sustained any permanent injury to his spine, and recommended that claimant lose weight in order to "help him on a long-term basis." (Jt. Ex. 1, pp. 248-249) Claimant stated that his symptoms improved, he lost weight through exercise, and he returned to his regular job with no additional time off work. The next incident occurred on February 9, 1989. Claimant described a situation where the reformatory had an emergency lock-down. As he was retrieving food supplies for the lock-down, he reached for cases of cans weighing 30 to 40 pounds. As he loaded these supplies into a truck, he hurt his left arm, shoulder and low back. Again, claimant sought treatment from Dr. Rosen, who diagnosed acute spastic myofacitis over the entire back with secondary peripheral radiculitis. He recommended physical therapy, and claimant received diathermy and ultrasound through February 17, 1989 (Jt. Ex. 1, pp. 192-197). On February 21, 1989, claimant came under the care of Thomas Carlstrom, M.D., who treated claimant through May 8, 1989. Dr. Carlstrom noted normal range of motion of the shoulders, tenderness over the lower lumbar spine, and slightly diminished range of motion of his back. He diagnosed myofascial low back pain, and sent claimant to the Low Back Institute for treatment. He recommended that claimant could return to work with a strict lifting restriction, and noted that claimant's supervisory role would permit such a return to work. Claimant was also provided a TENS unit, and was released to return to work on March 6, 1989, with a 40 pound lifting restriction. He was to work four hours a day for four weeks (Jt. Ex. 1, pp. 250- 253; 256-257; and 260). Claimant returned to Dr. Carlstrom in late May 1989, and was referred to the Pain Management Center. On May 8, 1989, Dr. Carlstrom opined that "this latest back pain episode of his has come from his lifting incident at work." (Jt. Ex. 1, pp. 254-255) Various records and notes from the Iowa Methodist Low Back Institute, dated March 20, 1989 through August 29, 1989, are found at joint exhibit 1, pages 32-42; 68-69; 71- 73; and, 275-278. Discharge notes dated August 10, 1989, indicate that claimant progressed slowly during the tenure of the physical therapy, and upon discharge continued to complain of low back and upper back pain as well as left Page 4 shoulder pain (Jt. Ex. 1, pp. 32-33). Claimant suffered a flare-up when he tried to return to a full work schedule. The diagnosis was myofascial pain syndrome, and claimant was directed to take Clinoril, Tylenol and Tryptophan. He was scheduled to undergo and EMG, which was normal (Jt. Ex. 1, pp. 89-90). Claimant's next alleged injury occurred on October 9, 1989. Dr. Rosen's surgeon's report indicates that claimant had been bending over continuously for the last few days, was working longer hours, and strained his back. Again, Dr. Rosen foresaw no permanent defect, and recommended physical therapy (Jt. Ex. 1, pp. 106, 174 [duplicate copies]). Claimant continued to see Dr. Rosen from October 11 through October 12, 1989, and eventually came under the care of Michael Makowsky, M.D., on October 16, 1989. Dr. Makowsky noted tenderness to palpation of the lower and upper back, but normal straight leg raising tests, symmetric deep tendon reflexes and intact motor and sensory systems. He diagnosed myofascial back pain, and restricted claimant's lifting duties to no more than 12 to 15 pounds, with no repetitive bending, reaching or pulling. During October, November and December 1989, through January and February 1990, claimant continued to see Dr. Makowsky and undergo physical therapy. Claimant was discharged from physical therapy at the Iowa Methodist Pain Management Center, which he had undergone from October through December of 1989. William Koenig, Jr., M.D., the medical director of the center, formed the following opinion on February 8, 1990: Mr. Brown has been seen on several occasions, and my clinical diagnosis has been a subacute fibrositis syndrome (myofascial pain syndrome). The patient also has had an EMG examination performed during the course of his treatment, which was normal also. He has remained with normal range of motion and normal strength throughout repeated examinations. Fibrositis syndrome, of course, carries no permanent partial disability rating. (Jt. Ex. 1, p. 85) Little, if any progress was made to treat claimant's pain symptoms, until claimant began to see Ronald Evans, D.C., whom he saw on February 21, 1990. Although initial notes of Dr. Evans are illegible, notes dated through March and April of 1990 indicate that claimant underwent ultrasound and tetanization of the low back, as well as petrissage of the cervicothoracic tissues. Claimant also underwent full spine manipulation, showed minimal improvement at low back and neck, but was released to return on an as-needed basis on April 13, 1990. Dr. Evans' final evaluation concludes that claimant has a lumbosacral strain, complicated by preexisting myofascial fibrositis, as well as a cervical sprain complicated by a preexisting cervical arthrosis (Jt. Ex. 1, pp. 261-270). After several more office visits with Dr. Makowsky, Page 5 claimant was released from care, and stated that his symptoms were about the same (Jt. Ex. 1, pp. 46-48). However, Dr. Makowsky recommended further therapy, including water exercises from February through March of 1990. During this time, specifically on February 15, 1990, claimant had yet another work-related injury. He described this incident as falling in the parking lot when he slipped on some ice. Again, claimant hurt his left shoulder and aggravated his back problem. Records from Dr. Makowsky indicate that claimant complained of pain going down both of his legs, and pain in his left shoulder. Claimant began physical therapy again on February 15, 1990. He used a TENS unit, underwent ultrasound treatments, hot packs and exercise. He continued this course of treatment through June 15, 1990, when he was discharged upon doctor's orders (Jt. Ex. 1, pp. 80-84; 285-304). Claimant returned to Dr. Rosen in July of 1990, and was released to return to work with no lifting of greater than 15 pounds, and no prolonged standing, walking or bending. During the next several months, claimant continued to undergo some form of physical therapy, and was released to return to work in August of 1990. Again, claimant was restricted to no lifting greater than 15 pounds, no prolonged standing, walking or bending for one month after his return to work (Jt. Ex. 1, pp. 119-171). Dr. Rosen advised claimant to attend the Mercy Wellness Program, but the notes indicate that claimant returned to the Iowa Methodist Low Back Institute (Jt. Ex. 1, pp. 109 and 120). Additionally, the records indicate that claimant received therapy from the Mercy Aquatic Program in October, November and December of 1990 (Jt. Ex. 1, p. 169). Claimant returned to the Iowa Methodist Low Back Institute in November of 1990. He underwent an MRI of the lumbosacral spine and cervical spine. Upon examination, Craig DuBois, M.D., noted tenderness in the lumbosacral area, and paraspinous tenderness in the cervical C6-7 region with palpation. Dr. DuBois also noted mild pain restriction of the left shoulder on abduction. Range of motion was markedly decreased on the left lateral flexion, left lateral rotation, extension and flexion (Jt. Ex. 1, pp. 29-31). A follow-up visit conducted on March 29, 1991, indicates that the results of the MRI showed stenosis of the cervical canal along the left sided disc protrusion C6-7 and possible mid-line C4-5 with bilateral joint spurring at C5- 6-7. The lumbosacral spine showed spinal stenosis at L4-5. Claimant was taking Monogesic, Prevovil, Soma and Voltaren. The overall impression was that claimant suffered from cervical and lumbar stenosis with spondylosis of multiple levels. It was recommended he undergo massage therapy, and he was prescribed Clonavepam (Jt. Ex. 1, page 28). After repeated physical therapy, water therapy and epidural injections, Dr. DuBois formed the following opinion on May 16, 1991: Page 6 Mr. Brown does seem to have cervical and spinal stenosis and degenerative changes with spondylosis. I believe that the features here are compatible with his complaints that have persisted over many years. Undoubtedly, exacerbations with lifting and high levels of work activity have taken place over the years. He reports that on February 8, 1989, he had such an exacerbation. ...I do believe he is capable of the limited walking that is required of his job at the moment and the primary restriction should be limiting him from lifting beyond 25 to 30 pounds at a maximum on a single user basis and 15 to 20 pounds on a repetitive basis....With these types of individuals, I think they have to be considered permanent restrictions as this process is not going to clear on its own. Patients can get adaptations to the dysfunction and spondylosis can become less inflammatory particularly with the steriod [sic] and anti- inflammatory treatments we are currently pursuing. I believe that he will need such further treatments and he should stay in a very protracted if not permanent course of exercise; the water therapy is quite good and I think these type of treatments are the thing that has helped these patients the most. .... In regards to disability rating, we are using a reference guidelines to evaluation of prone [sic] impairment, 3rd edition. This is a very complex situation because of the multitude of sites and in volvements here. I'll attempt to delineate them. In reference to Dr. Eidbo's evaluation of 35 to 40 percent, it also had division between different segments. Reference to that area is suggested. Combining these values using the combined values chart yielded a total combined value permanent of whole person disability of 34 percent. (Jt. Ex. 1, pp. 20-21) Dr. DuBois modified the restrictions in June of 1991, stating that claimant was to do no repetitive stooping, bending, squatting, and no lifting greater than 25 pounds. He rescinded the restriction of no kitchen duty (Jt. Ex. 1, p. 4). Claimant continued to undergo hydrotherapy, and also began therapy with Dianne Alber to enable him to cope with the pain and work activities (Jt. Ex. 1, pp. 1-2). Finally, the most recent report from Dr. DuBois, dated July 17, 1991, indicates that claimant suffers from polyarthralgias with cervical lumbar pain. He recommended that claimant set up an appointment with a rheumatologist, Page 7 and be evaluated at the spinal clinic in Iowa City, Iowa (Jt. Ex. 1, p. 3). Claimant has had a long history of physical problems. In 1956, he sustained an injury to his low back while lifting heavy pots onto and off of a stove. He was under a doctor's care for approximately one week. Apparently, no permanent impairment resulted from this episode. In 1964, claimant "strained" his lower back, and was hospitalized for one to two weeks. He received heat treatment and prescription medications, and was off of work for a limited amount of time. In 1977, claimant fractured his wrist, and in 1978, claimant strained stomach muscles. Most germane to these proceedings is a 1981 accident in which claimant injured his low back. At the time of the injury, claimant was working as a custodian for the Des Moines Public School District, and received a special case settlement. In an effort to secure the settlement, claimant relied upon an impairment rating given by Walter Gidbo, M.D., who assessed claimant's functional loss at 35-40 percent (Jt. Ex. 1, pp. 361-368). After the settlement, claimant attempted to secure employment with the school district. Claimant testified that he was not seeking custodial work because he was unable to perform the duties required by this type of position. A letter from the school district suggests otherwise (Jt. Ex. 12, pp. 1-2). ANALYSIS AND CONCLUSIONS OF LAW Defendants deny that claimant sustained an injury which arose out of and in the course of his employment on September 17, 1987, and October 9, 1989. Claimant states that he is not asking for healing period benefits for the first two injuries, September 17, 1987, and August 10, 1988. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received injuries which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). 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 Page 8 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). Although claimant filed five separate petitions, at the time of the hearing, he argued that he did not seek healing period benefits for the first two injuries. Defendants deny the first injury of September 17, 1987. The greater weight of the evidence shows that claimant was performing his job duties in a manner consistent with the demands of his position. He was working the hours required by the employer. As a result, it is found that claimant's injury of September 17, 1987 arose out of and in the course of his employment. Claimant also argues that the February 9, 1989 injury is the most serious and caused claimant to sustain a permanent loss. He argues that the last two injury dates of October 9, 1989 (an injury for which defendants deny liability) and February 15, 1990 merely exacerbated claimant's condition. Again, the greatest weight of the evidence supports claimant's argument. Any permanent partial disability benefits will be awarded due to the February 9, 1989 injury. The next issue to be addressed is whether claimant sustained any permanent disability due to the work-related injuries. Claimant has the burden of proving by a preponderance of the evidence that he has sustained a permanent disability due to any work-related accident. See Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other Page 9 surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson, 217 N.W.2d 531, 536. To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an em ployer'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). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). As discussed under the Facts section, there is no question that claimant has had a history of back problems. However, he was able to perform unnecessary duties mandated by his position with the Iowa Women's Reformatory from 1983 until his work-related accident in September 1987. Since that accident, and the subsequent incidents at work, claimant has been unable to perform his duties in full capacity. As a result, it is found that claimant has sustained a permanent disability from the work-related injuries. Page 10 As claimant has sustained injuries to his shoulder and back, his disability will be evaluated as an industrial disability. 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, 255 Iowa 1112, 125 N.W.2d 251. 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). Claimant has been treated by a multitude of doctors, and has been diagnosed as having several distinct problems with his low back. Included in the diagnoses are fibrositis Page 11 syndrome, which is myofascial pain syndrome, as well as a narrowing of the spine. Claimant has returned to his position as a supervisor of the food service department at the reformatory. He has experienced no loss of actual earnings. At the time of the hearing, claimant was 56 years of age and is on the declining end of earning years. he has endured a prolonged period of medical treatment and recuperation, but he has not had any invasive treatment. Claimant appeared to be average in intellect, and his emotional well-being is normal, although there is evidence which suggests he magnifies his physical problems. Claimant must work under some restrictions, as set out by Dr. DuBois. And, although Dr. DuBois specifically instructed that claimant was able to return to work in the kitchen on his regular job duties, it is possible that claimant's duties may require him to lift objects that weigh more than he is able to comfortably lift. Defendants have accommodated claimant's physical restrictions, and they are encouraged to continue instituting accommodations necessary to allow claimant to continue with his position at the reformatory. After considering all of the factors that comprise an industrial disability, it is found that claimant has sustained a 10 percent loss of earning capacity. order THEREFORE, it is ordered: That claimant sustained injuries which arose out of and in the course of his employment on September 17, 1987, and October 9, 1989. That the only injury which resulted in any permanent loss was that injury of February 9, 1989. That defendants shall pay claimant healing period benefits for time off of work during the time period between February 9, 1989 and May 16, 1991, at the rate of three hundred thirty-three and 81/100 dollars ($333.81) per week. That defendants shall pay claimant permanent partial disability payments for fifty (50) weeks at the workers' compensation rate of three hundred thirty-three and 81/100 dollars ($333.81) per week beginning May 17, 1991. That defendants shall pay the accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set for 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 claim activity reports upon Page 12 payment of the award as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David D Drake Attorney at Law West Towers Office Complex 1200 35th St Ste 500 West Des Moines IA 50265 Ms Joanne Moeller Assistant Attorney General Tort Claims Hoover Building LOCAL 1803 Filed April 24, 1995 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAMES E. BROWN, JR., File Nos. 1052984 Claimant, 909859 vs. A R B I T R A T I O N IOWA STATE WOMEN'S REFORMATORY, A N D Employer, R E V I E W - and R E O P E N I N G STATE OF IOWA, D E C I S I O N Insurance Carrier, Defendant. ________________________________________________________________ 1803 - Extent of disability case A rather odd policy of disciplining a state employee for injuring himself when he was performing job duties within his physician imposed restrictions was not found to be compensable until such time as such a policy results in an actual loss of job or pay. Although claimant's fears of losing his job may be justified given such a policy, claimant to date has been only reprimanded. It would be speculative to assess loss of earning capacity from any future implementation of such a disciplinary policy. 5-1803 Filed October 31, 1991 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : JAMES E. BROWN, JR., : : File Nos. 909859 Claimant, : 941719 : 894653 vs. : 864419 : 946038 IOWA STATE WOMEN'S : REFORMATORY, : : 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. : ___________________________________________________________ 5-1803 Claimant had a history of back problems, but none diminished his ability to work. He sustained a series of soft tissue injuries while working as a kitchen supervisor. Based on his age (56) and job duties, and the fact that the employer maintained him as an employee and accommodated his physical limitation, claimant was awarded 10 percent permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAMES R. SCHRADER, Claimant, vs. File No. 909973 WAUKASHA ENGINE DIVISION - DRESSER INDUSTRIES, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., 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 July 27, 1993 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of January, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James L. Pillers Attorney at Law Executive Plaza Building 1127 North 2nd Street Clinton, Iowa 52732 Mr. Mark Woollums Attorney at Law 600 Union Arcade Building 111 East 3rd Street Davenport, Iowa 52801-1596 5-1108.50; 5-1803; 5-2206; 5-3800 Filed January 31, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES R. SCHRADER, Claimant, vs. File No. 909973 WAUKASHA ENGINE DIVISION - DRESSER INDUSTRIES, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ 5-1108.50; 5-1803; 5-2206 Claimant awarded 25 percent permanent partial disability where he had worked until the plant closing but had ongoing complaints since the date of injury approximately 10 months prior to the plant closing. 5-3800 Interest on permanent partial disability awarded from end of healing period. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JAMES R SCHRADER, : : Claimant, : : vs. : : File No. 909973 WAUKESHA ENGINE DIVISION - : DRESSER INDUSTRIES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by James R. Schrader against his former employer based upon an injury that occurred on February 15, 1989. According to the form 2A filed May 1, 1989, Schrader was paid weekly compensation through March 19, 1989, with the last payment having been paid on March 27, 1989. Schrader now seeks to recover permanent partial disability compensation based upon that admitted injury. Defendants asserted that his claim was untimely under the provisions of Code section 85.26 but the defense is totally frivolous since the petition in this case was filed on February 24, 1992, a date which is clearly less than three years following the date that weekly compensation benefits were last paid as shown by the report filed by defendants. The case was heard at Davenport, Iowa, on May 18, 1993. The record consists of testimony from James Schrader and jointly offered exhibit 1 through 12. FINDINGS OF FACT James Schrader is a 53-year-old married man who lives at Clinton, Iowa. He is a high school graduate but has no further formal education. Most of his work history has been in factories operating industrial machines. He has some experience working in an agricultural feed mill where he ground feed and as a maintenance person in a hospital. Schrader commenced employment with Waukesha Engine Division in 1978. Over the years he held a number of different positions. His principle activity over the years was operating mill machines. Schrader was injured on February 15, 1989, when a metal stand which was heavily loaded lost the support of spring Page 2 devices and dropped to the floor, pulling Schrader along with it. Schrader experienced an immediate sharp pain in his upper back between his shoulder blades. Schrader testified at hearing that he had not experienced pain in his upper back prior to that date. In 1980 and perhaps 1981, he had low back problems (exhibit 1, pages 4-5; ex. 10). There is nothing in the record which indicates that Schrader had upper back pain prior to the incident which is the subject of this case. Immediately following the injury Schrader was taken off work and treated conservatively. He was released to return to work in mid-March 1989. He returned to work as a lead person. The work was lighter than what he had performed earlier in his career with this employer. Over the years, lifting assistance devices had gradually been placed in the plant and Schrader felt he could have performed his usual job even if he had not been made a lead person. Schrader continued to work until the plant closed on or about December 21, 1989. Schrader then drew unemployment compensation. When the February 15, 1989 injury occurred, diagnostic tests were conducted which showed claimant had a compression fracture of his T12 vertebra. There was some question whether the fracture was of recent origin. A bone scan test was interpreted as being normal (ex. 2, p. 5; ex. 3, p. 2). The treatment notes indicate that the area of tenderness was around T12-L1, the lower thoracic and upper lumbar spine areas (ex. 1, p. 24). It is noted that this is precisely the same area as where the compression fracture had been identified. Xerxes R. Colah, M.D., the treating orthopedic surgeon, interpreted the bone scan as suggesting that the compression fracture was an older injury (ex. 1, p. 24). On May 1, 1990, Schrader was seen by D.G. Wolf, M.D., for purposes of a physical examination. The notes state that there are no real problems except for with his back and with his foot for which he is trying to get disability. Claimant was referred to William R. Irey, M.D., an orthopedic surgeon located in the quad cities. There is considerable confusion in Dr. Irey's records. Dr. Irey interprets the x-rays which were provided to him on November 15, 1990, as showing a compression fracture at T6 (ex. 2, p. 6). His impression of the case included degenerative arthritis of the midthoracic spine (ex. 2, p. 7). Physical therapy only provided transient relief. A back brace provided no overall improvement (ex. 2, pp. 7-8). In a note dated April 22, 1991, Dr. Irey states that the x-rays which he observed were dated in 1981 and all were essentially normal as far as the thoracic spine was concerned. He goes on to state, "There is compression noted as the lower end of the thoracic spine, either at T12 or about L1. The vertebra is compressed to about 2/3 it's [sic] normal height. This does not correspond with the area in question at this time." Dr. Irey had nothing further to offer in the way of Page 3 aggressive care for Schrader's back (ex. 2, p. 8). Dr. Irey continued to speak of the T6 area when he was deposed (ex. 12, p. 10). In that same deposition Dr. Irey again confirmed that claimant's complaints did not correspond to a fracture of T12 (ex. 12, p. 17). Dr. Irey's initial impression was that claimant had degenerative arthritis of the midthoracic spine (ex. 12, p. 11). Based upon a history that claimant's upper back had not been symptomatic prior to the February 15, 1989 injury, Dr. Irey reported that the claimant's current back problems are directly related to the injury of February 15, 1989 (ex. 2, p. 3). He goes on to acknowledge that the injury probably did not produce all of the claimant's back problems as there were chronic underlying difficulties with the spine that were exacerbated by the injury (ex. 2, p. 3). Dr. Irey confirmed that opinion when he was deposed (ex. 12, pp. 21, 28). Dr. Irey has recommended that claimant limit his activities in view of the condition of his spine (ex. 2, p. 1; ex. 12, pp. 23-24). Dr. Colah is unable to causally connect claimant's problems to any particular incident but he did rate claimant as having a 3 percent impairment of the whole person (ex. 5, p. 1). The record made in this case does not show it to be probable that a compression fracture at T12 or T6 was caused by the February 15, 1989 injury. The evidence from the bone scan is a strong indication that it preexisted. There is some question regarding whether there are one or two compression fractures. Dr. Irey was never questioned concerning the basis for his testimony about the T6 and midthoracic area of claimant's spine. It is not known whether the doctor simply misspoke or whether the original injury affected the lower thoracic spine at the T12 level or whether an intervening problem has arisen at the T6 and midthoracic level of claimant's spine. It is of particular significance that on two separate occasions Dr. Irey related that the compression fracture at T12 was not in the same area as the area which was currently symptomatic. Despite this, Dr. Irey steadfastly opines that there is a causal connection between the 1989 injury and the current symptoms and complaints. Dr. Irey seems to base his opinion upon the claimant's statement that his upper back was not symptomatic prior to the 1989 injury and that it has been symptomatic since then. Claimant's appearance and demeanor was observed as he testified at hearing. His statements regarding the onset of his back problems and their continuation are accepted as being correct. Dr. Irey's assessment is therefore likewise accepted as being correct. It is found that the February 15, 1989 injury was a substantial factor in bringing about the complaints and physical limitations which currently afflict James Schrader. In all likelihood the February 15, 1989 injury was an exacerbation of a previously latent underlying condition. The fact that claimant resumed work and continued to Page 4 work until the plant closed would normally be an indication that he had made a full recovery but in this case the nature of the work and the nature of his complaints is such that it is not a strong indicator of recovery. Schrader has retained part-time employment since the plant closed. He has not obtained any replacement full-time employment. His area of work search has not included the quad cities area. It should be noted that it is not unusual for individuals to live in Clinton and work in the quad cities. The only activity restrictions found in the record of this case come from Dr. Irey. Claimant has self-imposed restrictions. Some of the jobs for which claimant has applied are beyond his physical capabilities. The record of this case does not compare the claimant's physical capacity as it existed immediately prior to the 1989 injury with the level of capacity with existed immediately following recuperation from that injury or at the present time. By claimant's own statement he could have performed his regular job following recuperation from the injury even if he had not been made a lead person. The evidence does not show his physical capacity to have changed as a result of the February 15, 1989 injury other than by his own statements. The evidence does not show either a compression fracture or degenerative changes to have resulted from the 1989 injury. It appears to be those conditions which are responsible for the majority of the physical complaints and the activity restrictions which have been medically recommended. On the other hand, claimant's back was not symptomatic prior to the occurrence of the injury. It is those symptoms which led Schrader to obtain medical care and led to the disclosure of the existence of those preexisting conditions. Prior to that time there had been no restrictions on his activities since the underlying conditions were asymptomatic and he had no reason to consult a physician about his back. It is therefore found that the February 15, 1989 injury was a substantial factor in making Schrader's back symptomatic and in bringing about the need for the imposition of the activity restrictions which have been recommended. Schrader is at an age when substantial retraining is not a particularly viable option though short retraining could very well be a reasonable consideration. By the same token he is not within the range of normal retirement age. Much of the reason for his current unemployment is the fact that the employer in this case closed its plant. A considerable number of individuals were then placed into the position of searching for jobs. In view of the limited population in the Clinton, Iowa, geographical area, it is to be expected that those laid off employees would have difficulty finding replacement work, particularly work which presents a comparable level of pay and benefits. It would be expected that even the perfectly healthy would have difficulty finding comparable jobs. It is determined that Schrader sustained a 25 percent loss of earning capacity, Page 5 primarily in the area of loss of access to jobs, as a result of the February 15, 1989 injury. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Dr. Irey provides the evidence of causal connection which allows the claimant to prevail in this case. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Page 6 Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The claimant's current employment status is not an accurate indicator of his actual earning capacity. His work search has been less than aggressive. The nature of his injury was not particularly severe. When all pertinent factors of industrial disability are considered, it is determined that James Schrader experienced a 25 percent permanent partial disability under the provisions of section 85.34(2)(u) of the Code as a result of the February 15, 1989 injury. Compensation for permanent partial disability is payable commencing at the end of the hearing period. Section 85.34(2); Bevins v. Farmstead Foods, file numbers 834865, 877458, 881784, & 888705 (App. November 26 1991); Benson v. Good Samaritan Center, file number 765734, ruling on rehearing October 18, 1989; Brittain v. Fisher Controls, file number 669180, ruling on rehearing November 20, 1989; Brinks v. Case Power and Equipment, file number 843233 (App. Dec. April 18, 1990); petition by Irving A. Marrow, declaratory ruling February 22, 1993. Claimant's entitlement to permanent partial disability compensation was therefore payable commencing on March 20, 1989, the day after the healing period ended. ORDER IT IS THEREFORE ORDERED that defendants pay James R. Schrader one hundred twenty-five (125) weeks of compensation for permanent partial disability at the stipulated rate of three hundred seven and 75/100 dollars ($307.75) per week payable commencing March 20, 1989. The entire amount thereof is past due and owing and shall be paid to claimant in a lump sum together with interest pursuant to section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim Page 7 activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James L Pillers Attorney at Law Executive Plaza Bldg 1127 N. 2nd St. Clinton, Iowa 52732 Mr. Mark Woollums Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport, Iowa 52801-1596 51108.50 51803 52206 Filed July 27, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES R SCHRADER, Claimant, vs. File No. 909973 WAUKESHA ENGINE DIVISION - DRESSER INDUSTRIES, INC., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 51108.50 51803 52206 Claimant awarded 25 percent permanent partial disability where he had worked until the plant closing but had ongoing complaints since the date of injury approximately 10 months prior to the plant closing. 53800 Interest on permanent partial disability awarded from end of healing period.