BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GARY HARBAUGH, Claimant, vs. File No. 912866 CITY OF JEFFERSON, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed November 3, 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 May, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr Harry W Dahl, III Attorney at Law 974 73rd St Suite 16 Des Moines IA 50312 Mr David L Jenkins Attorney at Law 801 Grand Avenue Suite 3700 Des Moines IA 50309 5-1803 Filed May 19, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GARY HARBAUGH, Claimant, vs. File No. 912866 CITY OF JEFFERSON, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Claimant was a police officer covered by the City of Jefferson's workers' compensation policy. He was involved in a fight, and during the next three years underwent six surgeries. He was fired from the city, and eventually found part-time employment as a janitor. Claimant, 49 years of age with a high school diploma, was awarded 85 percent industrial disability . BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : GARY HARBAUGH, : : Claimant, : : vs. : : File No. 912866 CITY OF JEFFERSON, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Gary Harbaugh against his former employer, The City of Jefferson, and its insurance carrier, Employers Mutual Insurance Companies. Claimant, Gary Harbaugh, sustained an injury on March 16, 1989 which arose out of and in the course of his employment. He seeks additional workers' compensation. A hearing was held in Des Moines, Iowa on September 15, 1993. The evidence in the case consists of testimony from the claimant and joint exhibits A-L, which include deposition testimony from Douglas Koontz, M.D., Scott Neff, D.O., and Tony Mack, a physical therapist. ISSUES The parties submitted the following issues for resolution: 1. Whether claimant is entitled to temporary total, temporary partial disability or healing period benefits from April 19, 1989 through December 7, 1992 2. Whether claimant is entitled to permanent partial disability benefits; and, 3. Whether claimant is entitled to certain medical benefits as governed by Iowa Code section 85.27. Defendants argue that the requested expenses were not authorized by them, and the treatment was not causally connected to the work injury. FINDINGS OF FACT The undersigned deputy, having reviewed all of the Page 2 evidence received, finds the following facts: At the time of the hearing, claimant was 49 years of age. He is married, and has two children. Claimant graduated from high school in 1962. Additional education includes training at the Iowa Law Enforcement Academy, and educational seminars. Claimant's work history includes positions as a gas station attendant; production/dock worker for a frozen food factory; telephone equipment installer; route person for Anderson-Erickson; shoe repair entrepreneur; and patrolperson for the police department in Jefferson, Iowa. His gross earnings from 1977 through October of 1985 totaled $35,000.00. Claimant has worked for the City of Jefferson as a police officer during several time periods. In 1985, the Chief of Police asked claimant to return to his prior position as a police officer. The salary ($15,000/year), and the benefits (IPERS, health insurance and a uniform allowance) coupled with the Chief of Police's reputation and the overall management of the department, convinced claimant to close his shoe repair business and accept the position. His duties ranged from investigating reported crimes and traffic accidents to rescuing cats from trees. Claimant stated that he did not have any physical conditions which prevented him from fully completing required job duties. Claimant admitted, and the record confirms that he did have prior back problems for which he received treatment from several chiropractors. The care was sporadic, and none of the symptoms for which he was treated prevented him from performing his job duties. (Joint Exhibit A). In February of 1989, as claimant was leaving the courthouse, he missed a step and jarred his low back. He received five chiropractic treatments. There is no evidence in the record to suggest that claimant sustained any permanent injury due to this incident. On March 16, 1989, claimant was working the 11:00 p.m. to 7:00 a.m. shift. At approximately 11:28 p.m., he was dispatched to a local bar to stop a fight. He was familiar with the suspected instigator's name and reputation. Once on the scene, the suspect was combative and refused arrest. A fight ensued, and claimant received some serious injuries. (Jt. Ex. I). Once the suspect was hand-cuffed and in the jail, claimant was sent to the Greene County Medical Center emergency room for treatment. (Jt. Ex. B-1). He was treated and returned to the jail to complete his paperwork. Claimant felt pain "all over" and stayed off of work for the next several days. One week after the incident he continued to feel pain in his neck and right shoulder. On March 30, 1989, he was sent back to Lawrence Marshall, M.D., a general practitioner at the Greene County Medical Center. After several weeks of unsuccessful conservative treatment, claimant was referred to Robert Hayne, M.D., a neurosurgeon. Page 3 After an examination and an MRI, it was determined that claimant had sustained a right shoulder injury and a herniated disc at the C4-5 level. Surgical repair of the herniation occurred on May 4, 1989, yet claimant continued to have problems. After a course of physical therapy which apparently did not relieve claimant's symptoms, further investigation found an abnormality at the C5-6 interspace, for which Dr. Hayne recommended additional fusion surgery. (Jt. Exs. B-2 and B-3). Claimant was sent to Rodney Johnson, M.D., an orthopedic specialist. He diagnosed a non-union of the dowel graft of the fusion at the C4-5 level, a bulging disc at C3-4 and right shoulder pain, which was treated with cortisone injections. Dr. Johnson recommended a second opinion from Douglas Koontz, M.D., a neurologist, who agreed with Dr. Johnson's diagnoses and course of treatment. (Jt. Ex. B-4; B-5, pp. 43-49). Claimant underwent cervical exploration and removal of the bone graft and an anterior cervical fusion at the C3-4 and 4-5 levels on January 22, 1990. He continued to have right shoulder pain, and the results of an MRI revealed a torn rotator cuff on the right side and degenerative changes of the labrum on the left shoulder. Physical therapy was recommended and tried, but claimant continued to experience weakness and pain in the right shoulder. (Jt. Ex. B-11). Rotator cuff repair was recommended by Dr. Johnson. (Jt. Ex. B-4). In August of 1990, Dr. Koontz believed that claimant had sustained a 17 percent impairment to the body as a whole due to the cervical surgeries. (Jt. Ex. B-5, p. 8). Claimant was then referred to Scott Neff, M.D., for further treatment of the right shoulder. (Jt. Ex. B-4 and B-5). Dr. Neff saw claimant in August of 1990. He determined that claimant needed to undergo an arthrogram and a CT study to determine whether claimant had a torn rotator cuff, and whether claimant needed to undergo surgery. Eventually, claimant underwent surgery on the right shoulder to repair a torn rotator cuff. (Jt. Ex. B-7). Follow-up treatment was rendered by Dr. Neff, who recommended physical therapy. He was of the opinion that claimant would be unable to return to work as a police officer, and suggested job retraining. Permanent restrictions included light or sedentary work activities, including office work, parts counter, dispatch or records custodian. He predicted a six month to one year healing period following the repair of the rotator cuff. (Jt. Ex. B-6, pp. 10-14). A lengthy letter from Dr. Neff to the insurance company, dated December 30, 1991, contains his opinion that claimant had sustained a five percent permanent impairment to the body as a whole due to the rotator cuff tear and repair. He also stated that the physical therapy did not cause, worsen or alter claimant's neck disease and pathology. (Jt. Ex. B-6, pp. 18-20). In his deposition, however, Dr. Neff deferred to Dr. Koontz's opinion regarding the causal connection between the exercises and the herniation at C5-6. (Jt. Ex. E). Page 4 In July of 1991, claimant returned to Dr. Koontz with renewed complaints of left arm pain, which appeared during the physical therapy program directed at his right and left shoulders. Dr. Koontz's records indicate that an EMG showed a pinched nerve at the C6 level, and an MRI showed a disc rupture at the C5-6 level. This was a new development which had not appeared on any prior test results. A cervical discectomy and fusion at the C5-6 level was contemplated in response to positive findings of a large disc rupture at the C5-6 level. Dr. Koontz believed that because the rupture at this level was not present on the previous MRIs, it had developed at the same time claimant began to complain of left arm numbness and discomfort during physical therapy for the shoulders. (Jt. Ex. B-5, pp. 10-15; B-11). Later, Dr. Koontz expressed his opinion that the physical therapy exercises could have contributed to the herniation at the C5-6 level. (Jt. Ex. D, p. 23; B-5). On December 13, 1991, Thomas Bower, a licensed physical therapist evaluated claimant. He determined there was a 13 percent impairment to claimant's right shoulder, a 5 percent impairment to the left upper extremity based on loss of range of motion, and an additional 18 percent impairment for the "persistent glenohumeral crepitation" in the left upper extremity. Mr. Bower combined the two ratings, and determined that claimant had sustained a 14 percent impairment to the body as a whole. He recommended light to sedentary work activities. (Jt. Ex. B-10). In October of 1992, Mr. Bower was of the opinion that the physical therapy exercises could aggravate claimant's neck condition, but did not believe they could be solely responsible for further herniation and the subsequent surgery. (Jt. Ex. B-10). In December of 1991, claimant returned to Dr. Koontz and requested surgery to repair the disc rupture at the C5-6 level. Dr. Koontz reiterated that the surgery was necessitated by a work-related injury, and the same was scheduled for January 6, 1992. The surgery was not successful, as the bone plug slipped and resulted in a non-fusion at the C5-6 level. Claimant continued to have significant neck and bilateral trapezius and shoulder pain. He developed pain and numbness in the right ear and developed right eye twitching. Yet another surgery was scheduled for April 1, 1992, and Dr. Koontz used a bone graft from claimant's left hip. (Jt. Ex. B-5, pp. 16-25). Follow-up treatment continued. Dr. Koontz did not believe claimant could return to work as a police officer, and recommended vocational rehabilitation. A conservative exercise program was started, and formal physical therapy was instituted in October, 1992. Dr. Koontz also recommended work conditioning, work hardening and a functional capacity evaluation (FCE). (Jt. Ex. B-5, pp. 26-34). The FCE was performed on November 17, 1992. The report indicates that claimant demonstrated maximum effort throughout the testing procedures. In a summary report, it was recommended that claimant be placed in a light-medium work classification, with lifting of not more than 20 pounds Page 5 infrequently, and up to 15 pounds on a frequent basis. He was not to perform repetitive lifting above the mid-chest level, and was to avoid work activities that would require prolonged cervical extension or flexion, repetitive rotation, and avoid prolonged exposure to vibration, bouncing, jarring of the body. (Jt. Ex. B-14). Dr. Koontz agreed with the results of the FCE, and released claimant to return to work, with the aforementioned restrictions on December 7, 1992. (Jt. Ex. B-5, pp. 35-41). After reviewing the videotape of the physical therapy program undertaken by claimant, Dr. Koontz was of the opinion that the exercises could "contribute to a disc rupture." (Jt. Ex. B-5, p. 42). This is especially true in light of the fusion above the disc, which cause surrounding discs to become more susceptible to herniation, and the degenerative nature of claimant's disc at the C5-6 level. (Jt. Ex. D). In April of 1993, the defendant employer terminated claimant, stating that he was "no longer able to perform duties as a Police Patrolman." Claimant was given a severance package of $2,000.00, a month of health insurance, and best wishes from the mayor of Jefferson, Charles Davis. (Jt. Ex. K). Claimant has undertaken an extensive job search, and currently holds a part-time position with the hospital. His job duties include custodial work. The undersigned believes he secured this employment on his own. Even though Intracorp representatives tried to help claimant identify transferable skills and appropriate positions, most of their efforts were directed at commission sales positions, in which claimant had no interest. Other evidence submitted and reviewed includes voluminous records from Intracorp, Nye Consulting, claimant's answers to interrogatories; various test results from Mercy Hospital and Methodist Hospital; a videotape of the exercises performed by claimant at physical therapy; and a listing of the City of Jefferson's personnel needs. (Jt. Exs. B-8, B-9, B-12, B-13, C, H and J). ANALYSIS AND CONCLUSIONS OF LAW The first issue to address is whether claimant is entitled to temporary total or healing period benefits from April 19, 1989 through December 7, 1992. 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. App. P. 14(f). As claimant has sustained a work-related injury, the next issue to be addressed is entitlement to temporary total or healing period benefits and/or permanent partial or total disability benefits. In order for claimant to be awarded temporary total disability benefits, he must meet the criteria set out in Iowa Code section 85.33, which states, in relevant part: Page 6 Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits,...until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. In order to be awarded healing period benefits, claimant must prove that he falls within the provisions of Iowa Code section 85.34(1), which states in pertinent part: If an employee has suffered a personal injury causing permanent partial disability..., the employer shall pay to the employee compensation for a healing period,...beginning on the date of injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Healing period benefits are generally characterized as that period during which there is a reasonable expectation of improvement of a disabling condition which ends when maximum medical improvement is reached. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Ia. Ct. App. 1984). Claimant has endured a long, slow healing process. While he has been seen by numerous healthcare providers, the primary physicians associated with his case include Dr. Koontz, Dr. Neff and Dr. Hayne. Throughout the case, claimant has undergone treatment to both his neck and shoulders. After the final surgery to the neck, claimant was released to return to work, with restrictions, on December 7, 1992. Not only does claimant have severe restrictions, but he also has permanent impairments to the body as a whole which are substantial. The greater weight of the evidence supports a finding that claimant sustained a permanent injury which arose out of and in the course of his employment. The record also shows by a preponderance of the evidence that during April 19, 1989 through December 7, 1992, claimant was in a healing period and undergoing treatment for his injuries. As a result, claimant is awarded healing period benefits from April 19, 1989 through December 7, 1992. The next issue to address is claimant's 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 Page 7 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). Currently, claimant is 49 years old with a high school diploma. Additional education has centered on classes taken at the Law Enforcement Academy. Claimant's work history is interesting. It appears his job as a patrolperson has provided him with the most steady work and income during his working years. He appeared to possess above average intelligence, and claimant demonstrated motivation to return to a suitable job once he completed his courses of treatment. He was amenable Page 8 to recommendations made by the physicians and physical therapists associated with his care. Claimant has permanent restrictions and impairments related to the neck injury. Dr. Neff did not assign any restrictions with respect to his shoulders, yet claimant continues to feel pain between the shoulder blades and his lower neck. According to claimant, the three fusions to the cervical spine have hampered claimant's ability to drive, look over his shoulder, look up and down, and affected the fine motor sensitivity of the left hand. Claimant is able to walk and ride a bike for exercise. Claimant has severe restrictions with respect to activities he can perform. Almost every job requires frequent turning and twisting of the neck. Even the most sedentary of jobs, such as a desk job, requires on to bend the neck on a somewhat repetitive basis. Claimant's current position, which he secured on his own, allows him to work at his own pace and within his restrictions. His hourly rate is substantially lower than his wages as a police officer. After considering all of the factors outlined above, including the employer's termination of claimant; the numerous surgeries undergone by claimant; claimant's inability to return to work as a police officer; his motivation to return to work; the length of the healing period; the nature of the injuries; claimant's past earnings; and, his ability to perform his current job duties, it is found that he has sustained an 85 percent industrial disability. The next issue to address is whether claimant is entitled to payment of certain medical benefits totalling $31,122.74. Apparently, these bills are associated with the final fusion, performed in December of 1991. Defendants argue that these costs are not casually related to the original injury. They also raise the affirmative defense that the requested expenses were not authorized by them. 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 Page 9 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). The undersigned is compelled to rely upon expert opinion to determine this issue. Dr. Koontz, who became claimant's treating physician after the first failed fusion, believes that the exercises performed during the physical therapy could aggravate a preexisting condition, in this case a herniated disc and cause it to become symptomatic. Dr. Neff at one time stated emphatically that the exercises could not cause a herniated disc. Dr. Neff treated claimant for his shoulder problems, and later deferred to Dr. Koontz's opinions. The undersigned feels compelled to accept Dr. Koontz's explanation of the factors that led to the herniation of the disc at C5-6. While treating physicians' opinions are not, in all instances, offered greater weight, Dr. Koontz treated claimant for all but the first surgery to the cervical spine. He is familiar with claimant's condition prior to the course of physical therapy directed at claimant's shoulder. He was also shown most of the exercises claimant performed during the physical therapy sessions. Both he and Dr. Neff believed claimant, who stated to both that the symptoms associated with the C5-6 herniation appeared following a therapy session. Both physicians are well-qualified and provided detailed testimony, explaining the mechanics and causes of herniated discs. In the final analysis, one's testimony complements the others, and Dr. Neff deferred to Dr. Koontz's final determinations regarding causation of the C5-6 herniation. As a result, it is determined that claimant is to be reimbursed for medical expenses totaling $31,122.74.00 associated with the final surgeries. Defendants' argument that the expenses were not authorized will not be addressed, as they denied liability for this particular condition. As stated many times by the agency, the defendants must admit compensability before they can direct the course of a claimant's medical treatment. See, Hameister V. Park View Manor (App. Decsn., file #721585, filed October 31, 1986). ORDER THEREFORE, it is ordered: That defendants shall pay claimant healing period benefits from April 19, 1989 through December 7, 1992. That defendant shall pay claimant permanent partial disability benefits for four hundred twenty-five (425) weeks beginning December 8, 1992, at the rate of two hundred thirty-five and 93/100 dollars ($235.93) per week. Page 10 That defendants shall pay the costs of claimant's medical benefits, as provided by Iowa Code section 85.27. That defendants shall pay accrued weekly benefits in a lump sum. 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 November, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harry W Dahl Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 Mr David L Jenkins Attorney at Law 801 Grand Ave Ste 3700 Des Moines IA 50309-2727 5-1803 Filed November 3, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : GARY HARBAUGH, : : Claimant, : : vs. : : File No. 912866 CITY OF JEFFERSON, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant was a police officer covered by the City of Jefferson's workers' compensation policy. He was involved in a fight, and during the next three years underwent six surgeries. He was fired from the city, and eventually found part-time employment as a janitor. Claimant, 49 years of age with a high school diploma, was awarded 85 percent industrial disability . Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : FLOYD J. ELLIOTT, : : Claimant, : : vs. : : File No. 912957 FIRESTONE TIRE & RUBBER CO., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. issues Those portions of the proposed agency decision pertaining to issues not raised on appeal are adopted as a part of this appeal decision. The issue raised on appeal is whether or not the evidence at hearing supports the finding of a 30 percent industrial disability award to the claimant. findings of fact The findings of fact contained in the proposed agency decision filed May 6, 1991 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Claimant testified both in person and through his deposition taken on August 23, 1990. Claimant is a 37-year-old who left high school in the twelfth grade but shortly thereafter obtained his GED. Claimant has had no other formal education. Claimant described his work history up to his employment with defendant employer beginning in February 1988. This history involved working as a bottle sorter, stocker and grocery deliverer, painting houses, working as a mechanic on trucks, driving trucks for the city of Windsor Heights, gas station mechanic, operating his own insulation business, and repairing and cleaning air conditioners. Claimant indicated his mechanic ability was self-taught and by observing his father as his father worked on machinery. Page 2 He said the current autos with computers are beyond his knowledge to repair (Joint Exhibit 7, page 5). This exhibit sets out in more detail claimant's work history generally referred to above. Claimant describe his jobs and their nature while working for defendant employer (Jt. Ex. 10, pp. 14, 15). Claimant said he started having shoulder problems and left hand pain up his arms into his shoulder on May 6, 1988. He was given medicine and then a shot and put on light duty. He said his pain became worse and also started in his right shoulder. Claimant said he worked right up to a month before his surgery. Claimant had carpal tunnel left hand surgery on September 7, 1988. He was off two days and returned to work with a half-cast on his hand. His job at that time was to pull rejected tires. On November 11, 1988, claimant was pulling tread off a tire with a hook which pulled through the rubber causing claimant to fall back and hit his low back on a guardrail. He reported this on November 11, 1988 to defendant employer (Jt. Ex. 1, p. 75A). Claimant hurt but continued to work. Claimant said one of the company doctors told him there was nothing wrong with him while another said there was a problem (Jt. Ex. 10, p. 24). Claimant said defendant employer finally transferred him approximately one month later to the fork lift position. Claimant received therapy, ice packs and ultrasound. Claimant worked until the end of June 1988, but he said the pain in his left leg was so severe that he fell twice as his leg would go to sleep. Thomas A. Carlstrom, M.D., performed a lumbar laminectomy L5-S1 on claimant on July 21, 1989 (Jt. Ex. 1, p. 44). Claimant was off eight weeks. Claimant said his left leg got better but his back did not. The pain eventually shifted to his right side. Claimant indicated his job with defendant employer upon his return to work was driving a jeep fork lift and he could not keep up with the work. Claimant worked until October 24, 1989, at which time he was terminated for having falsified his application. Claimant went to work for Harkin Glass Company as a driver in January 1990 to May 1990. He said his pain was so bad all the time and was becoming worse, so he quit. He did not file for workers' compensation against that company. Claimant then worked driving a semi to Fort Dodge and back delivering mail once or twice a week. This required no loading or unloading. Claimant said he could not do this anymore due to his condition. Claimant found no other work so he went back to defendant employer to see about a job in November 1990. Claimant said Dr. Carlstrom did another MRI and more therapy was prescribed in November 1990 until the end of January 1991, when he was released from therapy. Claimant indicated it was recommended he sign up for swimming and Page 3 whirlpool three times a week for six weeks. Claimant emphasized the insurance company would not pay for this. Dr. Carlstrom was called to Saudi Arabia so claimant couldn't see him again. Claimant said the insurance would not pay for another doctor so claimant attempted to find his own doctor. Claimant said he tried to find several doctors but no one wanted to dispute Dr. Carlstrom. Claimant eventually called Robert Jones, M.D., who called back two weeks later and agreed to see claimant. He said Dr. Jones recommended another MRI and after his second visit recommended claimant go to a pain clinic or Sister Kenney Hospital, in Minneapolis. Claimant was asked about his prior injuries or accidents. He related a 1973 hernia when he got kicked, but he had no surgery. In 1974, he was struck in the head and appeared to have had a workers' compensation settlement but he remembers nothing about this incident. He said it appears his signature is on the paper. In January 1979, claimant was off work five weeks due to pain in his lower back caused by a tow truck accident. He described his 1979 injury in his deposition as a hip injury involving a socket. He said he had back problems for one and one-half years thereafter. Claimant was asked about the Firestone medical records and history that he filled out and in which he answered "no" to all the medical questions (Jt. Ex. 1, pp. 65, 66). Claimant said he denied any prior problems in order to get a job. He said he felt good and was having no problem or back pain at that time. He said Firestone did a physical and took x-rays and found no problems. On cross-examination, claimant acknowledged he also had a 1977 auto accident causing neck and right shoulder injury, which he doesn't recall, and a 1978 minor right elbow injury. Claimant's records reflect that he hurt his right elbow on January 7, 1989, at work (Jt. Ex. 1, pp. 176, 185, 217 and 223). It appears to the undersigned that there is no evidence in the record of any residual permanent impairment or lingering problems from these injuries. Claimant was asked about a herniated disc determination of a Douglas W. Brenton, M.D., in a 1987 low back problem in which a CT scan on March 11, 1987 showed a herniated disc at L5-S1 (Jt. Ex. 1, pp. 21-24). Claimant eventually remembered the event but not the herniation. Although at times it seemed unbelievable that claimant would forget certain injuries, it is noted that claimant had retrograde amnesia, as noted in the January 1979 medical record (Jt. Ex. 1, p. 219). Claimant said that when he returned to the fork lift light duty job on September 13, 1989, he was making $11.00 per hour and anticipated continuing that job to the current day if he had not been terminated due to his false application. At the time of his November 1988 injury, claimant was making $11.00 per hour. Page 4 Claimant acknowledged that defendants had Lorraine Hackett attempt to help him with a vocational rehabilitation plan, which he agreed to. He said he changed his plan because defendants were not paying his medical bills. He also related his wife did not want him to go to a woman vocational rehabilitation person. Jack Reynolds was then assigned to the case. Claimant's complaints basically are sore shoulders, left more than right, and the feeling gone in his two lower fingers of his left hand. Claimant acknowledged he did not check with defendant insurance company before he went to Dr. Jones. Lorraine Hackett, a rehabilitation consultant, testified her first contact with claimant was in September 1990. She related the history, records and test results she had. She said claimant had an excellent mechanical aptitude and good communication skills. She concluded and targeted the job areas for claimant which ranged from $7.00 up to $10.50 per hour. She gave claimant job leads and he was also to seek jobs on his own. She said claimant seemed enthusiastic and followed up. Her last contact with claimant was on November 5, 1990, and she understood claimant's wife objected to him working with a woman so his case was transferred to Jack Reynolds. Claimant was called on January 4, 1991, and he said he would not cooperate until his bills were paid. She said the state rehabilitation became involved but claimant did not keep his appointment. Ms. Hackett helped claimant with his resume but she did not recommend claimant become a mechanic due to his restrictions nor does she recommend painting due to working overhead or heavy lifting. Dr. Carlstrom had told him to avoid heights. Ms. Hackett said claimant could do the fork lift job today and that Dr. Carlstrom also said he could return to that job. Jack Reynolds' report of March 1, 1991 (Jt. Ex. 3), indicates claimant did not wish to accept any vocational rehabilitation services. Claimant complained of problems but it doesn't appear he was helping himself to the extent that he could (Jt. Ex. 3, p. 79). Joint Exhibit 4 reflects some of claimant's job search efforts. Joint Exhibit 6, page 13, is a letter from defendant employer's manager of the heavy duty tire building department regarding claimant's attendance record. Page 15 shows claimant as one of several persons on said exhibit who have injuries. It indicates these people would serve defendant employer in another capacity and add value to their products. Thomas A. Carlstrom, M.D., saw claimant on June 21, 1989, at which time claimant had symptoms of left L5 radiculopathy with pain in back and left leg radiating to the lateral portion of claimant's foot. He indicated this was similar to claimant's symptoms six to eight months ago and also two years ago. The doctor indicated claimant's CT scan in 1987 also shows a small herniated disc at L5-S1, but on the 1989 CT scan it was larger. A CT scan on April 1, 1983 shows the same thing as the 1987 CT scan (Jt. Ex. 1, p. Page 5 192). On July 21, 1989, claimant had a laminectomy for a herniated disc at L5-S1 left. A very large herniated disc was found at that level (Jt. Ex. 1, p. 43). On November 16, 1990, Dr. Carlstrom wrote a letter which is confusing in part, as he refers to an injury in the early part of 1989. Looking at all the evidence and taking Dr. Carlstrom's medical as a whole, it is concluded that the injury he was referring to was, in fact, on November 11, 1988, rather than an injury in the early part of 1989. There is no other evidence or record. Dr. Carlstrom referred to claimant as having an old history of a herniated lumbar disc and that he had some persistent symptoms throughout his history even though he was able to work. He then opined that approximately one-third of claimant's impairment should be referred back to his prior injury. As it is concluded, the doctor is referring to claimant's injury prior to November 1988, therefore, claimant would have an approximate eight percent impairment from his November 11, 1988 injury. There appears to be attached to this letter, and marked as Joint Exhibit 1, pages 3 and 4, the apparent restrictions that Dr. Carlstrom placed on claimant. There is no evidence that these were ever removed. Apparently, these restrictions, in part, are that claimant is limited to occasional lifting or carrying of 30 pounds and frequently 20 pounds, and restricted from heights. He indicated claimant could not return to his former job, but that he could return to other work with restrictions defined herein. It is apparent from the record and from the rehabilitation consultant that Dr. Carlstrom did approve of claimant returning to his lighter duty fork lift job that he was doing at the time he was terminated. On this same report, the doctor indicated claimant's total impairment was 12 percent. By reducing that one-third, he arrived at the eight percent referred to above. Claimant attended the Iowa Methodist Low Back Institute and received physical therapy there several days between September 20, 1990 and December 7, 1990. Upon his release, the institute's assessment of claimant was that they could see little benefit to claimant from pursuing additional physical therapy intervention and they found little improvement in function. A.B. Grundberg, M.D., on May 8, 1990, opined that claimant had a three percent permanent impairment of his left hand from claimant's left carpal tunnel syndrome and that the healing period ended on November 20, 1989 (Jt. Ex. 1, pp. 29 and 30). Claimant's medical indicates he was having problems with his left hand with pain in his shoulders. Dr. Grundberg diagnosed on September 15, 1988 that claimant had a left carpal tunnel syndrome and bursitis in his left shoulder (Jt. Ex. 1, p. 34). He later determined that claimant also had a narrowing between C6 and 7 (Jt. Ex. 1, p. 39). On May 6, 1988, claimant complained to defendant employer that his right shoulder was getting sore from Page 6 building tires on the B-3 tire machine (Jt. Ex. 1, p. 73). On May 13, 1988, claimant told defendant employer his left shoulder was bothering him from throwing stock while building tires on a B-3 tire machine (Jt. Ex. 1, p. 78). There is no dispute involving any injury herein as to the healing period. As mentioned earlier, and as discussed by the parties, the May 6, 1988 and September 5, 1988 alleged injuries involved one injury and the parties agreed that the September 5, 1988 injury is encompassed within the May 6, 1988 injury. For that reason, there will be no further reference to the September 5, 1988 injury, represented by file No. 923688, until the conclusion and order. Regarding the May 6, 1988 injury, the parties are basically arguing over whether this injury was to claimant's body as a whole or was solely a scheduled member injury to claimant's left hand. Although there is reference in the record as to claimant's shoulder bothering him, claimant has the burden of proof to show there is a permanent work-related injury to his shoulder which would involve his body as a whole. The greater weight of medical evidence does not show any permanent impairment or injury to claimant's shoulder or body as a whole as a result of a May 6, 1988 injury. Although there is some reference in the record as to claimant's right elbow, there likewise is no evidence of any permanent impairment or injury as a result of a May 6, 1988 injury. There is reference that claimant hurt his right elbow on January 7, 1989, at work (Jt. Ex. 1, p. 76). It is found that the claimant incurred, as found by Dr. Grundberg, a three percent permanent impairment to his left hand resulting from his carpal tunnel syndrome (Jt. Ex. 1, pp. 29 and 30). As to the other issue concerning this injury, defendants are questioning the causal connection of the injury to any permanent impairment. It would appear from the record and statements of counsel that the causal connection dispute is really regarding the causal connection of any permanency to the body as a whole or any greater permanency than the three percent found by Dr. Grundberg. It is found that there is no causal connection to claimant's alleged body as a whole injury to a May 6, 1988 injury nor any greater permanent impairment than three percent to his left hand. It is also found that there is a causal connection between claimant's three percent permanent impairment to his left hand and his May 6, 1988 injury. Therefore, claimant is entitled to 5.7 weeks of permanent partial disability benefits (190 x 3% = 5.7 weeks). As to claimant's November 11, 1988 injury, all the healing period has been paid so the only dispute is whether there is a causal connection to claimant's alleged permanent disability and the injury and if there is any permanent disability, the extent, thereof, if any. Claimant has had a history of back problems as reflected in the records of Dr. Brenton, neurologist, dated March 13, 1987, in which he refers to claimant's lumbar spine CT scan. It shows a Page 7 herniated disc at L5-S1 centrally and on the left (Jt. Ex. 1, p. 22). The department of radiology at the Iowa Methodist Medical Center, on March 11, 1987, refers to a "mild herniation or protrusion of disc material." (Jt. Ex. 1, p. 63) There is no evidence that claimant was unable to work or that his work was hampered by any herniated disc problem prior to his November 11, 1988 injury. Although the company doctors initially had claimant continue on with work and even though they attempted to accommodate claimant, the greater weight of medical evidence and other facts in this case show that claimant was bothered and hampered by a back condition after his November 11, 1988 injury, and that he had a laminectomy performed by Dr. Carlstrom in July 1989 at L5-S1 at which time it was found that the condition was much larger than the condition found in 1987. There is no indication of any surgery needed in 1987 to correct claimant's condition. Dr. Carlstrom opined that claimant had a 12 percent permanent impairment of which he relates 1/3 or 4 percent to claimant's preexisting situation or condition and eight percent to a subsequent injury. As referred to earlier, Dr. Carlstrom refers to an early 1989 injury and has no reference in any respect to a November 11, 1988 injury. It is found that the doctor was referring to the November 11, 1988 injury rather than an early 1989 injury. The greater weight of medical testimony shows that claimant's July 21, 1989 laminectomy was causally connected to claimant's November 11, 1988 injury and that claimant's impairment was causally connected to said November 11, 1988 injury. It is further found that claimant had a preexisting condition at L5-S1 which involved a mild herniated disc protrusion which had not prevented claimant from working and did not need surgical intervention. It is found that claimant's November 11, 1988 injury substantially and materially exacerbated and lighted up claimant's preexisting condition, resulting in claimant incurring the July 1989 surgery and additional eight percent permanent impairment. The undersigned finds that claimant has certain lifting and climbing restrictions all set out in Joint Exhibit 1, pages 3 and 4, and these are causally connected to claimant's November 11, 1988 injury. ***** ***** The rehabilitation consultant acknowledges that claimant could not return to the job he had on November 11, 1988, nor could he perform his painting jobs that he had performed during his earlier work history. Although claimant has a mechanical aptitude, it is obvious from the evidence that he picked this up by watching others and that with the modern day machinery and vehicles and computerization, claimant would be hampered by a lack of education in that area even though he possibly could learn it. A letter from the manager of the heavy duty tire building department indicates the manager believed that claimant could make a meaningful contribution to the Page 8 commercial tire business and add value to Firestone's products. This is evidenced by the October 20, 1988 letter which is an interdepartment correspondence (Jt. Ex. 6, p. 13). Claimant is 37 years old but has limited skills and permanent restrictions and his work history has basically been involving labor and heavier duty work. Taking into consideration claimant's age, education, work experience prior to the injury, transferable skills, his medical history prior to the November 11, 1988 injury and subsequent thereto, claimant's preexisting condition, the nature and location of his injury, the extent of his healing period, the functional impairment, the employer's refusal to continue claimant's employment and claimant's inability to find other suitable work after making some bona fide effort, it is concluded that claimant has a 30 percent industrial disability and that this disability was causally connected to his November 11, 1988 injury. The remaining issue is whether claimant is entitled to have his Mercy Hospital bill and Dr. Jones' bill paid. It appears the bills in dispute are the Mercy Hospital bill set out in Joint Exhibit 2, pages 1 through 7, and Dr. Jones' bill that has not been received yet but is anticipated to be in the amount of $144. It would appear that claimant was denied any further care for any permanency regarding his back injury of November 11, 1988, and that at the time these bills were incurred they were denying any further liability. They were, in fact, denying that Dr. Carlstrom's July 1989 surgery was causally connected. It is found that claimant was entitled to obtain this medical to help solve his problems and although there is not any evidence that he was helped, there is likewise no evidence that this care didn't help to determine if claimant could get additional recovery from his complaints and condition caused by the November 11, 1988 injury. Dr. Carlstrom was sent to Saudia Arabia and defendants should have made another doctor available. ***** conclusions of law The conclusions of law contained in the proposed agency decision filed May 6, 1991 are adopted as set forth below. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. The claimant has the burden of proving by a preponderance of the evidence that the injuries of November 11, 1988 and May 6, 1988 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Page 9 However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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 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. 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 v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 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, 253 Iowa 369, 112 N.W.2d 299; 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). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). If claimant has an impairment to the body as a whole, Page 10 an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). 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). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. Id. at 181. Apportionment of disability between a preexisting condition and an injury is proper only when there was some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984) ***** It is further concluded that: Regarding claimant's May 6, 1988 injury (file No. 936510), claimant incurred a work-related injury to his left hand which caused a three percent permanent partial impairment. Claimant's May 6, 1988 injury did not result in an injury to his shoulders or elbow, nor did it result in a body as a whole injury. Claimant is entitled to 5.70 weeks of permanent partial disability benefits as a result of his May 6, 1988 injury. Claimant's September 5, 1988 alleged injury (file No. 923688) is, in fact, the same and is encompassed in claimant's May 6, 1988 injury represented by file No. 936510. Claimant recovers nothing as a result of any separate September 5, 1988 injury. Regarding claimant's November 11, 1988 injury (file No. 912957), it is concluded that claimant incurred a work-related permanent impairment to his body as a whole as a result of a work-related November 11, 1988 injury to his low back involving the L5-S1 disc. Page 11 Claimant had a preexisting injury to his low back in the area of L5-S1 that resulted in a preexisting permanent impairment but that said preexisting injury was substantially and materially aggravated and lighted up by claimant's November 11, 1988 injury, thereby resulting in a greater impairment than was originally existing prior to that November 11, 1988 injury. Claimant incurred a July 21, 1989 laminectomy L5-S1 performed by Dr. Carlstrom, which surgery was the result of and caused by claimant's November 11, 1988 work-related injury. Claimant was working without problems affecting his job prior to his November 11, 1988 injury. ***** Claimant has work restrictions limiting him to certain weight and other restrictions as a result of his November 11, 1988 work injury. Claimant has incurred a loss of income and loss of earning capacity as a result of his November 11, 1988 injury. Defendants have proved that there should be an apportionment of disability between claimant's preexisting condition and the 12 percent permanent impairment found by Dr. Carlstrom. Eight percent is the result of claimant's November 11, 1988 injury, and that the other four percent was the result of a preexisting condition. Claimant is entitled to have his medical bills incurred with Mercy Hospital and Dr. Jones paid by defendants, as defendants were denying further medical care to claimant and denied that there was any permanent disability or impairment, and that claimant had a right to seek other medical help to alleviate his problems. Claimant incurred a work-related 30 percent industrial disability as a result of his November 11, 1988 injury after taking into consideration claimant's preexisting condition and deducting its effect to arrive at claimant's net industrial disability. [Claimant's discharge by his employer was based on a falsification of his employment application. There is insufficient evidence to establish that claimant's discharge was motivated by his work injury. There is no showing that only employees who have suffered an injury have been discharged under this policy, and therefore it must be presumed that even employees who have not been injured but who have falsified their employment applications are also discharged. Thus, although employer conduct such as discharging an employee because they have suffered an injury can be utilized as a factor in assessing industrial disability, there is an insufficient showing in this case that such circumstances exist. Claimant's discharge will not be considered in this de novo review. Page 12 Claimant's motivation to return to work is a relevant factor in industrial disability. Claimant terminated his vocational rehabilitation program, and failed to keep appointments with the state vocational rehabilitation office. Claimant asserts his time was occupied with the program of physical therapy he was engaged in. Claimant also offered as a reason for terminating the program that his medical bills were not being paid by defendants. Claimant has not shown good motivation to rehabilitate himself or to find alternative employment. However, the greater weight of the evidence shows that even a successful vocational rehabilitation program would still have resulted in a loss of earnings for claimant. The vocational rehabilitation counselor predicted that any jobs claimant might find would be from $.50 to $4 per hour less than claimant was making at the time of his injury.] WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, it is ordered: That in regards to the May 6, 1988 injury (file No. 936510), defendants shall pay unto claimant five point seventy (5.70) weeks of permanent partial disability benefits at the stipulated weekly rate of two hundred thirty-six and 83/100 dollars ($236.83), beginning on the stipulated date of September 13, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That regarding the November 11, 1988 injury (file No. 912957), defendants shall pay unto claimant one hundred fifty (150) weeks of permanent partial disability benefits at the stipulated rate of two hundred twenty-eight and 16/100 dollars ($228.16) per week, beginning on the stipulated date of September 13, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay claimant's Mercy Hospital bill and Dr. Jones' bill. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That as to the September 5, 1988 injury (file No. 923668), claimant takes nothing from that proceeding. That defendants shall pay the costs of these actions, Page 13 pursuant to rule 343 IAC 4.33. That defendants shall file an activity reports upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law West Towers Office 1200 35th St., Ste 500 W Des Moines, IA 50265 Mr. Jeff M. Margolin Attorney at Law Terrace Ctr, Ste 111 2700 Grand Ave Des Moines, IA 50312 Page 1 5-2206; 5-1108; 5-2503; 1803 5-1803.1; 5-1804; 5-1806 Filed February 26, 1993 Byron K. Orton BJO before the iowa industrial commissioner ____________________________________________________________ _____ : FLOYD J. ELLIOTT, : : Claimant, : : vs. : : File No. 912957 FIRESTONE TIRE & RUBBER CO., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1803 Claimant was discharged by his employer after suffering a back injury because he had falsely asserted in his employment application that he had not suffered a prior back injury. Claimant acknowledged he falsified the application in order to get the job. Held on appeal that, absent a showing that only employees that were injured were discharged under this policy, it must be presumed that the policy is also applied to workers who do not suffer injuries but are found to have falsified their applications. Since there is no showing the termination was based on the injury and not based on an evenly applied company policy, the termination was not a factor used in determining industrial disability. The deputy's award of industrial disability was unchanged on appeal. 5-1803.1 Found claimant entitled to 5.70 weeks of permanent partial disability benefits as a result of a work injury on May 6, 1988 to his left hand resulting in a three percent permanent impairment. This injury found not to involve claimant's body as a whole. Claimant took nothing from a September 5, 1988 injury. This alleged injury actually was encompassed in claimant's May 6, Page 2 1988 work injury. As to a November 11, 1988 injury: 5-1804 Claimant awarded 30 percent industrial disability. 5-1108 Found claimant incurred a work injury which resulted in claimant incurring a L5-S1 laminectomy, restrictions and an additional eight percent permanent impairment to claimant's preexisting four percent permanent back impairment. 5-2502 Claimant allowed additional medical defendants refused to pay. 5-2206; 5-1108; 5-2503 5-1803.1; 5-1804; 5-1806 1807 Filed May 6, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : FLOYD J. ELLIOTT, : : Claimant, : File Nos. 923668 : 936510 vs. : 912957 : FIRESTONE TIRE & RUBBER CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803.1 Found claimant entitled to 5.70 weeks of permanent partial disability benefits as a result of a work injury on May 6, 1988 to his left hand resulting in a 3 percent permanent impairment. This injury found not to involve claimant's body as a whole. Claimant took nothing from a September 5, 1988 injury. This alleged injury actually was encompassed in claimant's May 6, 1988 work injury. As to a November 11, 1988 injury: 5-1804 Claimant awarded 30 percent industrial disability. 5-1108 Found claimant incurred a work injury which resulted in claimant incurring a L5-S1 laminectomy, restrictions and an additional 8 percent permanent impairment to claimant's preexisting 4 percent permanent back impairment. 1807 Claimant was fired from his job eleven months after his November 11, 1988 work injury. Defendants contend it was because of his work application which was falsely filled out. Deputy found that this was not the sole reason for firing claimant and that claimant's work injury was the major reason claimant was fired. 5-2502 Claimant allowed additional medical defendants refused to pay. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ ROSA IBARRA, Claimant, vs. File Nos. 913028 1037262 H. J. HEINZ CO., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. _______________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration upon the petitions of claimant, Rosa Ibarra, against her employer, H. J. Heinz, Co., and its insurance carrier, Liberty Mutual Insurance Company, defendants. The files were consolidated for purposes of the hearing which took place on January 18, 1995, at the United States Courthouse in Davenport, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of Kendall Kelly, Human Resources Coordinator for defendant- employer. Additionally, the record is comprised of joint exhibits A-J, claimant's exhibit 1 and defendants' exhibit 1. The administrative file for file number 913028 indicates that claimant filed her petition before the Iowa Industrial Commissioner on March 29, 1993. On the face of the petition, claimant alleged that she had sustained a work-related injury on February 22, 1989. A first report of injury was properly filed by defendant-employer on September 13, 1993. The administrative file for file number 1037262 reveals that claimant filed her petition before the Iowa Industrial Commissioner on March 29, 1993. She alleged she sustained a work-related injury on October 20, 1991. The official file also indicates a first report of injury was filed on November 1, 1993. ISSUES The issues to be determined are: With respect to file number 913028: The sole issue is the nature and extent of any permanent partial disability benefits. With respect to file number 1037262 the issues are: 1) whether claimant sustained a work-related injury on October 20, 1991; 2) whether the alleged injury is the cause of temporary or permanent disability; 3) whether claimant is entitled to any permanent partial disability benefits, and if so, the extent of those benefits; and 4) whether claimant served timely notice of the alleged work injury on defendants pursuant to section 85.23, Iowa Code, as amended. FINDINGS OF FACT AND CONCLUSIONS OF LAW The deputy, having heard the testimony and considered all the evidence, makes the following findings of fact and conclusions of law: Claimant is a 37-year-old married worker. She is right hand dominant. Claimant completed the sixth grade in Mexico. She obtained her GED in 1976 through the Community College in Muscatine. Claimant has no formalized training beyond her GED. Claimant commenced her employment with the present defendant on January 17, 1977. Prior to her employment, she had engaged in no significant jobs, other than several weeks of employment with Louis Rich. Initially, claimant was hired to work as a packer in defendant's packaging plant. She was required to reach, to lift above her head, and to use her hands to pack, grab, lift and wrap. All of the duties were repetitive in nature, however, the job was rotated among several employees. Throughout the duration of her employment claimant held various positions within the plant. Many of the positions required the use of one or both of her upper extremities. Some of the positions included: label cage job, utility job, relief person, label inspector, fork lift truck driver, "feed packer," and "bright line packer." Claimant's personnel records were admitted as evidence in the case. According to exhibit A, claimant experienced a painful right shoulder as early as February 16, 1989 (Exhibit A-85). According to the nursing notes of the plant nurse, claimant complained of right shoulder pain after she engaged in pushing and packing boxes (Ex. A-22). The box pushing incident is the incident which the parties stipulated as the work injury which involved claimant's right shoulder. William Catalona, M.D., the plant physician, examined claimant for right shoulder complaints on February 28, 1989 (Ex. B-1). Dr. Catalona diagnosed claimant's condition as an overuse syndrome (Ex. B-1). He treated claimant conservatively by prescribing medication, rest, and physical therapy. Claimant's condition did not improve to the satisfaction of the plant physician and he referred claimant to Richard L. Kreiter, M.D. Dr. Kreiter examined claimant on March 20, 1989. He diagnosed claimant as having "[p]robable rotator cuff tendonitis with possible cuff injury vs biceps strain" (Ex. D-1). He ordered an arthrogram, which was normal (Ex. D-1). Dr. Kreiter ordered physical therapy and work hardening at the Work Fitness Center (Ex. C). Dr. Kreiter injected claimant's supraspinatous tendon with Aristospan and Xylocaine (Ex. D-2). He continued to follow claimant's progress. Nevertheless, claimant did not progress satisfactorily, and Dr. Kreiter recommended surgery on the right shoulder. On July 23, 1990, he did a resection of the lateral clavicle and anterior acromionectomy and release of the coracoacromial ligament (Ex. D-3). Postoperatively, claimant engaged in exercises and extensive physical therapy. Dr. Kreiter released claimant to return to work effective November 12, 1990, with restrictions of limited overhead work and no lifting in excess of 30 pounds with the right arm (Ex. D-6). On June 17, 1991, Dr. Kreiter examined claimant for purposes of rendering an impairment rating. In his report of June 21, 1991, Dr. Kreiter opined: I think she is getting along better. She has less pain than she did preoperatively. She continues to have symptoms. It is very difficult to know the extent of such. She rarely takes any analgesics for discomfort. She does have permanent disability in the shoulder as a result of the surgery and this would basically be a 5% physical impairment loss of physical function of the whole arm as result of resection of the distal clavicle. She certainly has reached her maximum healing, although, she believes that physical therapy as prescribed by Dr. Catalona continues to be helpful. I would believe she needs to stay away from overhead work or work that requires repeated pulling, pushing or polishing type activity. She should not have any problem lifting objects weighing up to 20 to 25 lb. (Ex. D-8) Several months later, Dr. Catalona medically qualified claimant to perform the "labeler" job. The company physician determined the job would be better suited to claimant due to her right shoulder pain (Ex. B-16). As a consequence, claimant returned to work as a grade 4 worker rather than to the previous job which was a grade 6 job. There was a difference in pay of less than $.50 per hour. Claimant began experiencing difficulties with her hands and wrists. In February of 1993, she sought chiropractic treatments for her hand pain. In the course of approximately one month, claimant visited M. R. Mally, D.C., on numerous occasions (Ex. G-5-6). Pursuant to a request by claimant, Robert J. Chesser, M.D., examined and evaluated claimant on October 1, 1991. The evaluating physician noted in his report of the same date: On examination, she presents in no acute distress. On inspection, cervical active range of motion is full, although she does complain of pain in the right upper trapezius with all movements. There are no specific radiating symptoms. When testing strength there is diffuse pain inhibition throughout the entire right upper extremity. It does not follow any specific distribution. She complains of pain in the shoulder joint with active abduction and external rotation. With elbow flexion and extension she also complains of right shoulder pain with forearm pronation and wrist extension she complains of right wrist pain. Her reflexes are symmetrical. Initially there was a question of a reduction of the right triceps reflex, but on further evaluation these were symmetrical. Pinprick sensation demonstrated a diffuse reduction to pinprick sensation in the right hand, but in no specific distribution. There was a positive Tinel sign over the right carpal tunnel. The following range of motion measurements were obtained using a goniometer with the patient in a seated position. Shoulder flexion 120o 4% impairment Shoulder abduction 110o 3% impairment External rotation 45o 1% impairment Internal rotation 45o 2% impairment Adduction 15o 1% impairment Extension 50o 0% impairment ASSESSMENT: At this time there are findings consistent with a residual right shoulder pain related to an impingement syndrome and the degenerative changes in the right shoulder. She is post surgical release. At this time I would agree that in regards to the shoulder she has reached maximal medical improvement, and I would have no recommendations for further treatment. Based on today's evaluation, in regards to the restricted range of motion of the right shoulder, there is an 11% impairment of the upper extremity based on restricted shoulder range of motion, and this would translate into a 7% whole person impairment. In addition, with the diffuseness of the pain of her right upper extremity, although this may represent an early reflex sympathetic dystrophy as a result of the shoulder pain, I do feel that further diagnostic evaluation would be in order, specifically an MRI of her cervical spine, as well as MEG and NCV studies to the right upper extremity. These tests would be ordered in order to investigate the possibility of a radiculitis or carpal tunnel entrapment producing the symptoms, which would not be attributed to the shoulder injury, per se. (Ex. F-2-3) In April of 1993, Dr. Chesser again evaluated claimant's right shoulder. He also examined and evaluated claimant's right and left hands for bilateral carpal tunnel syndrome. Dr. Chesser revised his previous evaluation because he noted improvement in claimant's right shoulder. In his report of April 7, 1993, Dr. Chesser opined: ASSESSMENT: Based on today's evaluation I continue to feel that Mrs. Ibarra will require permanent restrictions in regards to the right shoulder. I would recommend that she be limited to 15 to 20 lb. [sic] of weight and no repetitive overhead lifting or repetitive reaching. I would also suggest that she have a functional capacity evaluation performed to see whether we cannot get more specific details of what her physical capacity would be in regards to the right shoulder. It may be that the patient is capable of performing more or less than what I have indicated above, and this may help to give a better documentation of this. In regards to impairment rating, there is noted improvement in the range of motion of the shoulder. The impairment rating would equal an 8% impairment to the upper extremity compared to 11% when I saw her in October of 1991. In regards to her carpal tunnel entrapments, from a clinical standpoint she does appear to have findings consistent with carpal tunnel entrapment. I do not feel that it would be specifically related to the incident that she described where she was lifting the boxes and then developed pain in the volar aspect of the wrist. This may have produced some strain of the tendons, but there was a suspicion of carpal tunnel when I saw her October 1, 1991. I suspect that the development of bilateral carpal tunnel entrapments is work-related and is cumulative in nature due to the repetitive use of her hands throughout the years. I do not see any additional risk factors in regards to her past medical history or hobbies that would be contributing to her developing carpal tunnel entrapment. (Ex. F-5-6) Claimant continued to complain of bilateral hand pain. Defendants referred claimant to William R. Whitmore, M.D., (Ex. J-1). The initial examination occurred on April 13, 1994. Dr. Whitmore diagnosed claimant as having: "Symptoms compatible with carpal tunnel syndrome, bilateral, right worse than left" (Ex. J-1). He injected claimant with Lidocaine into the right carpal tunnel (Ex. J-1). The pain in her right hand lessened, but Dr. Whitmore noted claimant had a positive bilateral Phalen's test with numbness in the tips of the fingers (Ex. J-2). Dr. Whitmore ordered an EMG exam of both wrists. EMG studies of both hands were conducted in April of 1994. According to Stephen C. Rasmus, M.D., the studies demonstrated: IMPRESSION: This study shows mild to moderate axonal and demyelinating injury to the median nerve bilaterally. The site of the injury could not be determined, as nerve conductions through the carpal tunnel were normal. Symptoms were improved following Cortisone injection in the wrist, suggesting that that is the site of injury. No evidence of nerve entrapment in the forearm was found. Clinical correlation may be required. (Ex. I) Following the results of the EMG, Dr. Whitmore determined surgery was unnecessary. He recommended another intra-carpal tunnel injection in the left wrist but claimant declined (Ex. J-2). Dr. Chesser evaluated claimant for a third time on January 10, 1995. In a revised opinion, he opined: ASSESSMENT: Based on today's evaluation there is loss of range of motion in the right shoulder associated with the impingement and subsequent surgery. Based on today's evaluation there would be an 11% impairment due to loss of range of motion. In addition to the above, there are findings consistent with bilateral carpal tunnel entrapments. In regards to the left hand I do not see any specific impairment associated with this at this time. However, in the right there is a loss of grip strength associated with the carpal tunnel entrapment, and as such I feel would represent a 10% upper extremity impairment related to the carpal tunnel entrapment on the right. Combining the right carpal tunnel entrapment with the right shoulder impingement, there would be a total of a 20% impairment to the upper extremity. In regards to work activity I have not seen the physical capacity assessment. Based on her presentation today I feel that she is capable of full- time work. I would recommend that she be maintained on a 10 lb. weight limit, that she not do any repetitive forceful grasping, or flexion or extension of the wrists. (Ex. F-9) Kendall Kelly testified that at the time of the hearing, claimant performed light factory work which was a grade 2 position. He reported a wage level of $11.05 per hour. Claimant testified that had she remained in the same job which she held at the time of her shoulder injury, claimant would have been earning $11.99 per hour. The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding; "on the party who would suffer loss if the issue were not established. Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987). The primary purpose of workers' compensation statutes is to benefit workers and their dependents insofar as the statute permits, the statute should be interpreted with a view toward that objective. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506, (Iowa 1981). When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Comm'r Report 281 (App. 1982), a torn rotator cuff was found to cause disability to the body as a whole. In Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986), the Iowa Supreme Court determined that the Industrial Commissioner is not required to follow the permanent impairment evaluation guide published by the American Medical Association to determine whether an injury is a scheduled member injury or an injury to the body as a whole. In Lauhoff, the Court cited Professor Larson at 2 A. Larson, Workmen's Compensation Law 58.21, at 10-222 to 10-243 (1979). Professor Larson wrote: [t]he great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive. A common example of the kind of decision is that in which an amputation of a leg causes pain shooting into the rest of the body, general debility, stiffening of the hip socket or other extended effects resulting in greater interference with ability to work than would be expected from a simple and uncomplicated loss of the leg. An increasingly common application of this rule involves schedule-type injuries that produce mental and nervous injury, such as traumatic neurosis; these have generally been found to call for awards going beyond the schedule. . . . . Courts in several other jurisdictions have addressed the question of whether injuries to hips and shoulders are to be compensated solely as injuries to the leg or arm or as disabilities to the body as a whole. Most cases have resolved the question in favor of the whole- body compensation under statutes which are very similar to ours. . . . (citations omitted) Lauhoff at 838 In file number 913028, claimant's permanent injury is an injury to the body as a whole. Since it is an injury which affects the body as a whole, claimant is entitled to have the disability calculated by the industrial method. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Well respected surgeons have calculated claimant's permanent impairment rating in the 5 percent to 11 percent range. Claimant is restricted from engaging in overhead work. She is to watch repetitive pushing and pulling. She is not to lift more than 25 pounds. Her restrictions are severe and they will affect the types of jobs she can perform both in and outside the plant setting. Defendant-employer has accommodated claimant in the workplace. Nevertheless, claimant's actual earnings have been reduced as a result of this work injury. Claimant is now a grade 2 employee. At the time of her shoulder injury, claimant was a grade 6 employee. Effective September 1, 1993, claimant earned approximately $.85 per hour less than what she would have earned if she had stayed a grade 6 employee. Effective September 1, 1994, claimant earned $.94 per hour less than a grade 6 employee. Claimant has sustained an actual loss of earnings. In addition, claimant is no longer able to bid into higher paying jobs which are outside her work restrictions. Her earning capacity has been affected by her right shoulder injury. As was the situation in Thilges v. Snap-On Tools, 528 N.W.2d 614 (Iowa 1995), this claimant's loss of earning capacity must be viewed in terms of her present ability to earn in the competitive job market without regard to the accommodation furnished by her present employer. Id. at 617. An employer's accommodation for claimant's permanent impairments and restrictions will not necessarily transfer to the competitive labor market as a whole. Id. at 617. In the current competitive job market as a whole, claimant is not likely to find other employers in the competitive job market as understanding, cooperative and helpful as this employer has been. Claimant is entitled to an industrial disability allowance in excess of her permanent impairment ratings. Id. at 617. In light of the foregoing, it is the determination of the undersigned that claimant has sustained a 15 percent permanent partial disability. She is entitled to 75 weeks of permanent partial disability benefits at the stipulated rate of $224.34 per week and commencing from June 21, 1991. The remaining issues to address deal with file number 1037262. 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). Claimant has proven by a preponderance of the evidence that she has sustained a bilateral work-related injury to her hands. The date of the work injury is October 22, 1991. Claimant testified she experienced difficulties with her wrists in October of 1991. At the time, claimant was opening many cartons of gravy. Exhibit A-28 indicates claimant reported difficulties with one wrist on October 22, 1991. However, claimant testified she not only reported problems with both wrists but she was also prescribed wrist splints for each wrist. The nurse's note of December 18, 1991, corroborates claimant's testimony (Ex. A-28). Claimant's rendition of the events involving her wrists is credible. Claimant has sustained bilateral work-related injuries involving both wrists. The next issue to address is whether claimant has sustained any disability as a result of the work injury on October 22, 1991. The medical records indicate claimant received medical treatment for both hands. The treatment involved chiropractic manipulation, injections, and wrist splints. There is some objective test results to establish claimant's condition (Ex. I). It is the determination of the deputy that claimant has sustained a temporary disability as a result of the work injury of October 22, 1991. Claimant has made no request for temporary disability benefits. Consequently, no temporary disability benefits are awarded. Claimant requests permanent disability benefits for her injury of October 22, 1991. There is absolutely no medical evidence in the record which will support a conclusion that claimant's left hand/wrist condition is permanent in nature. The only physician who rated claimant's condition as permanent was Dr. Chesser, the evaluating physician. He noted a loss of grip strength and he rated claimant as having a 10 percent loss of the right upper extremity. The other two medical practitioners, who were treating claimant at some point, did not provide impairment ratings for claimant's right hand. They did not impose permanent work restrictions. At the time of the hearing, claimant was engaged in no active treatment. It is the determination of the undersigned that the greater weight of the evidence supports a conclusion that claimant did not suffer any permanent disability as a result of the work injury on October 22, 1991. Defendants did not provide evidence which would support the affirmative defense whether there was untimely notice under section 85.23 of the Iowa Code. Their defense is without merit. ORDER THEREFORE, IT IS ORDERED: With respect to file number 913028: Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated weekly benefit rate of two hundred twenty-four and 34/l00 dollars ($224.34) per week and commencing from June 21, 1991. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code as amended. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 4.33. With respect to file number 1037262: Claimant takes nothing further from these proceedings. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of June, 1995. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law 30 N LaSalle St Chicago IL 60602 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg 111 E Third St Davenport IA 52801-1596 5-1800 Filed June 21, 1995 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROSA IBARRA, Claimant, vs. File Nos. 913028 1037262 H. J. HEINZ CO., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. ____________________________________________________________ 5-1800 Claimant was awarded a 15% permanent partial disability benefit as a result of a work injury which involved her right shoulder. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : RONALD LEE MEYERS, : : Claimant, : : vs. : : File Nos. 881251 HOLIDAY EXPRESS CORPORATION, : 913213 & 913214 : Employer, : A P P E A L : and : D E C I S I O N : 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 September 30, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: In Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court Said: Section 85.30 expresses legislative intent that interest on unpaid compensation be computed from the date each payment comes due, starting with the eleventh day after the injury....Interest is therefore payable on such installment from that due date, and similarly with the following weekly payments. Interest is computed according to the longstanding rule that partial payments are applied first to accrued interest and the remainder to reduce the permanent partial disability award. McNeal v. Iowa Department of Transportation, Order Nunc Pro Tunc, May 31, 1990. Also see Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 540 (1985). The parties are directed to calculate interest on any weekly benefits not paid when due based on Iowa Code section 85.30 and the above cited authority. If a dispute exists between the parties on how the interest should be calculated, the parties can then bring the question before this agency for resolution. Claimant shall pay the costs of the appeal, including the Page 2 preparation of the hearing transcript. Signed and filed this ____ day of March, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Mark S. Soldat Attorney at Law 714 East State Street Algona, Iowa 50511 Mr. Tito Trevino Attorney at Law P.O. Box 1680 Fort Dodge, Iowa 50501 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TERRI L. WEST, : : Claimant, : : vs. : : File No. 913221 PIONEER HI-BRED INTERNATIONAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Terri L. West, claimant, against Pioneer Hi-Bred International, employer, hereinafter referred to as Pioneer, and the Hartford, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on June 25, 1987. On July 30, 1992, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of 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 prehearing report, the parties have stipulated to the following matters: 1. On June 25, 1987, claimant received an injury arising out of and in the course of her employment with Pioneer. 2. Claimant is not seeking additional temporary total or healing period benefits in this proceeding. 3. The injury is a cause of a permanent industrial disability to the body as a whole, the extent of which remains at issue. Permanent disability benefits are to begin as of August 8, 1990. 4. At the time of injury claimant's gross rate of weekly compensation was $450.00; she was single; and she was entitled to 2 exemptions. Therefore, claimant's weekly rate of compensation is $264.70 according to the Industrial Commissioner's published rate booklet. Page 2 5. With reference to the requested medical benefits, it was stipulated that the providers of the requested medical expenses would testify as to their reasonableness and defendants are not offering contrary evidence. It was also stipulated that all of the expenses are causally connected to the work injury. Only authorization is at issue. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to permanent disability benefits; and, 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 necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the reasons for leaving employment at Pioneer. From her demeanor while testifying, claimant is found credible. Claimant worked for Pioneer from July 1983 until March 1991. Although initially claimant was employed as an accounting clerk, she acquired computer skills over the years and was eventually promoted to a salaried position in which she provided computer hardware and software services to other Pioneer employees nation-wide. This job involved use of a computer terminal and keyboard for specialized programing and spread sheet development. Claimant conducted in-house training programs and worked to resolve hardware and software problems. To accomplish these tasks, she was required to travel 30-35 percent of the time to Pioneer production facilities located throughout the nation. Claimant earned approximately $30,000 annually when she resigned her position in March 1990. Claimant's work injury occurred during one of her trips to a Pioneer facility in the state of Indiana. Claimant hurt her neck and knee from whiplash when the vehicle in which she was riding was struck from the rear by another vehicle. Claimant initially had no symptoms but on the plane ride home she began to feel stiffness in the neck. The next day she began to experience extensive pain in the neck and shoulders with tingling and numbness in the hands. She first sought treatment from a family physician, C. Ganske, M.D., but soon thereafter began receiving chiropractic adjustments from Daniel Hannan, D.C. Defendants initially concurred and paid for these chiropractic treatments but then notified claimant that Page 3 further treatment should be transferred to Joseph Doro, D.O., a neurologist. Dr. Doro then treated claimant with medication upon a diagnosis of myofascial pain. He recommended a gradual resumption of activity. Scott Neff D.O., an orthopedic surgeon, evaluated claimant in November 1987 and found no evidence of disc problems. In February 1988, claimant was first evaluated by Thomas Carlstrom, M.D., a neurosurgeon. Dr. Carlstrom gave no treatment recommendations at the time and felt that the problem was myofascial and that she should steadily improve. He also felt at that time that any activity restrictions or permanent impairment would be mild. However, claimant continued to have problems during the balance of 1988. In February 1989, claimant sought and received treatment for chronic neck and shoulder pain at the Mercy Medical Center pain center. Although claimant states that this program was of some benefit in helping to live with her pain, the pain continued. In June 89, Dr. Doro concluded that claimant suffered a 15 percent permanent partial impairment to the whole body due to her continuing neck and shoulder problems. During the pain center treatment and for over a year thereafter, claimant received regular manipulative care from David Musgrave, D.O. Defendants refuse to pay for this care stating it was not authorized. Claimant testified that Dr. Blessman at the pain center referred her to Dr. Musgrave. A review of the pain center reports fails to show any record of such a referral. On the contrary, there is a reference in the discharge note by one of the pain center nurses (Joint Exhibit 12, page 22) that continued manipulations were not recommended. Consequently, it is concluded that claimant must have been mistaken as to the referral. Therefore, she has failed to show that the care of Dr. Musgrave was authorized. Claimant fell at home in March 1990. A month later she returned to Dr. Carlstrom with increased pain. He then performed an MRI test which revealed a herniated disc at one level of claimant's upper spine. This was treated surgically. Following recovery from surgery, Dr. Carlstrom opined that claimant suffered from a 7-10 percent permanent partial impairment to the body as a whole. In December 1990, Dr. Carlstrom found another herniated disc in claimant's cervical spine but this time he did not recommend surgery. Dr. Carlstrom believes that both herniations are largely due to the 1987 auto accident at Pioneer, although claimant had a previous neck injury in 1984 from an auto accident and the subsequent injury from the fall at home in March 1990. Despite the various forms of treatment since 1987, claimant continued to have chronic neck and shoulder pain and numbness in the hands in early 1991. Consequently, Dr. Carlstrom concluded that more severe restrictions on activity was needed and suggested a change in jobs. Specifically, in April 1991, the doctor recommended against repetitive work activity, especially with the hands and wrists; avoidance of prolonged sitting or standing; and, avoidance of activity requiring continuous turning of the head. In October 1991, claimant on her own and without Page 4 concurrence from defendants, sought another evaluation by another neurosurgeon, Scott Erwood, M.D. Dr. Erwood offered no further treatment recommendations and rated claimant's impairment at 11 percent. Based upon the views of treating physicians, the work injury of June 25, 1987 was a cause of a 10-15 percent permanent impairment to the body as a whole. However, work restrictions are more important to an industrial disability/loss of earning capacity analysis. It is found that the work restrictions imposed by Dr. Carlstrom are consistent with claimant's disability and her credible testimony. Claimant's medical condition before the work injury was good. Although she had a serious neck injury in 1984 requiring extensive treatment, claimant's testimony that she recovered is unrebutted. Whether or not she had occasional flareups of neck pain from this prior injury, it must be concluded that she had no functional impairments or ascertainable industrial disability before the work injury herein. Claimant was able to fully perform physical tasks involving continuous use of her hand in working with her computers. She was able to sit or stand for prolonged periods of time and fully engage in travel. She was able to lift computer equipment and handle luggage at the office and while on the road. Due to the activity restrictions now imposed by her physicians, claimant is unable to perform these tasks today. She was able to continue to work between 1987 and 1991 only with chronic pain and constant medical treatment and use of medications. Although accommodations were attempted, they failed to alleviate the problems. None of these accommodations satisfied the prohibition against repetitive use of her hands and continuous turning of the neck. Computer work using a keyboard requires repetitive hand work and turning of the neck regardless of the frequency of breaks. Finally, no other work was offered to claimant despite a wide variety of jobs at Pioneer. All of this is clear evidence that claimant has a serious disability. As a result of her inability to continue working at Pioneer, claimant has suffered a major loss of earnings. Claimant now has only a part-time job paying considerably less than her wages at Pioneer. In part, claimant has chosen to work only part-time so that she can attend school. She concludes, and rightly so, that retraining in education is her best alternative in an effort to minimize the economic effects of her disability. Although claimant is intelligent and has so far very good grades in school, it would be too speculative to conclude that claimant will successfully complete her training and obtain a job as a teacher. Even if she is able to keep up her grades, the cost of a college education today is enormous as shown by the evidence and claimant has very limited financial resources. Pioneer is not assisting in this retraining effort. If she is to continue in her education, she must receive full scholarships. It is pure speculation to believe today that claimant will receive adequate Page 5 scholarships over the next four to five years. Consequently, only claimant's current loss of earning capacity will be evaluated. Claimant is 38 years of age. Claimant's past employment consists primarily of computer work which she can no longer perform on a regular basis. Vocational consultants eliminate all but light duty work. Consultants even preclude sedentary work with her restrictions. According to one consultant, 78 percent of all jobs are closed to claimant. She today is able to only work in light duty jobs such as sales clerk that pay from minimum wage to 6.00/hour. She probably would have to begin part-time in any such light duty jobs according to the consultants. Absent successful retraining, claimant has, indeed, a very substantial loss of earnings potential with her current disability. From examination of all of the factors of industrial disability, it is found that the work injury of June 25, 1987 is a cause of a 50 percent loss of earning capacity. CONCLUSIONS OF LAW I. As the claimant has shown that the work injury was a cause a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). 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, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Defendants argue that it is likely that claimant's earning capacity will increase upon completion of this schooling. This agency has decided that an assessment of future success of retraining is improper in an industrial disability case. Except where clearly shown to the Page 6 contrary, such an assessment is too speculative. It is only claimant's present not future earning capacity which is to be measured in awarding permanent disability benefits. Stewart v. Crouse Cartage Co., file number 738644 (Appeal Decision filed February 20, 1987); Umphress v. Armstrong Rubber Co., file number 723184 (Appeal Decision filed August 27, 1987). Therefore, only claimant's present, not future, disability will be compensated in this proceeding. Certainly, if claimant's educational efforts are eventually successful, this agency is available upon proper application to review this award at a later time. In the case sub judice, it was found that claimant suffered a 50 percent loss of her earning capacity as a result of the work injury. Such a finding entitles claimant to 250 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 50 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, employers have the right to chose the care. If dissatisfied, claimant must first ask the employer for alternative care and if that is refused, file an application to change the care with this office. In the case at bar, liability was never at issue. Although claimant has every right to chose who furnishes care, such care is at claimant's own expense if defendants are providing care and refuse to authorize alternatives to this care. The medical claims are denied. Defendants were offering reasonable care and did not authorize the care obtained by claimant. ORDER 1. Defendants shall pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits at a rate of two hundred sixty-four and 70/100 ($264.70) per week from August 8, 1990. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1992. Page 7 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas P. Schlapkohl Attorney at Law 1906 Ingersoll Avenue Suite E Des Moines, Iowa 50309 Mr. George H. Capps Attorney at Law P O Box 971 Des Moines, Iowa 50304 5-1803 Filed September 21, 1992 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TERRI L. WEST, Claimant, vs. File No. 913221 PIONEER HI-BRED INTERNATIONAL, A R B I T R A T I O N Employer, D E C I S I O N and THE HARTFORD, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROBERT D. BEAMAN, Claimant, vs. File Nos. 913228/803576 THE ARMSTRONG RUBBER CO., A P P E A L Employer, D E C I S I O N and THE TRAVELERS 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 March 26, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. E. J. Kelly Mr. Gregory T. Racette Attorneys at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 Mr. Terry L. Monson Attorney at Law 100 Court Ave., Ste 600 Des Moines, Iowa 50309 9998 Filed September 29, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT D. BEAMAN, Claimant, vs. File Nos. 913228/803576 THE ARMSTRONG RUBBER CO., A P P E A L Employer, D E C I S I O N and THE TRAVELERS INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed March 26, 1991. 5-1803 Filed March 26, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : ROBERT D. BEAMAN, : : Claimant, : : vs. : : File Nos. 913228 & 803576 THE ARMSTRONG RUBBER CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Extent of permanent disability benefits.