Page 1 before the iowa industrial commissioner ____________________________________________________________ : KAREN BOTTS, : : Claimant, : : vs. : : File No. 914250 IOWA LUTHERAN HOSPITAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARM BUREAU MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Karen Botts, claimant, against Iowa Lutheran Hospital, employer, and Farm Bureau Mutual Insurance Company, insurance carrier. Claimant files her petition based on a work related injury which occurred on April 1, 1989. A hearing was held on February 21, 1991 at Des Moines, Iowa. The record consists of testimony from the claimant and Patricia McCollum, a vocational rehabilitation expert; and, joint exhibits 1, 3-11, 13 and 14. Pursuant to the prehearing report submitted and approved at the hearing, the sole issue to be determined is the extent of claimant's industrial disability. findings of fact The undersigned deputy, having reviewed all of the evidence offered and received, and having presided at the hearing, finds the following facts: At the time of the hearing, claimant was 29 years old. She is married, and has two (2) dependent children. Claimant is 5 feet 8 inches in height, and weighs 272 pounds. Claimant graduated from East High School, Des Moines, Iowa in 1980. She worked at Lutheran Hospital on a part-time basis during high school, and secured full-time employment after graduation. After several years, claimant attended one year of technical school at the Iowa Lakes Community College in Emmetsburg, Iowa. She earned a diploma as a licensed practical nurse (LPN). In so doing, claimant Page 2 took courses in English; math; growth, development and speech; nursing care; and, pharmacology. A clinical component was also a requirement of the program. Claimant has also taken general studies at Des Moines Area Community College as pre-requisites for an associate degree in nursing program. Claimant has a very stable work history. As noted above, she started working for Lutheran Hospital in Des Moines, Iowa in 1979 on a part-time basis while she was attending high school. After graduation, claimant began to work for the hospital on a full-time basis, and her duties included food preparation; washing dishes; and, working on the tray line to prepare patient meals. She described the position as requiring standing; bending; twisting; and, lifting of between 10-75 pounds. Upon completion of her LPN degree, claimant went to work for the Childrens' Rehabilitation Center in Johnston, Iowa. This facility is a group home for severely disabled and retarded individuals. Claimant described different levels of care provided at the center, including skilled cared for the severely handicapped patients, and an intermediate care component, which consisted of the higher functioning group of individuals who could not live in a home environment, but who did not need to be supervised on 24-hour a day basis. Claimant worked in the skilled care area of the center. Her duties included providing nursing services. Claimant did not incur any injuries while working in her position with the center. In April of 1986, claimant began to work for Luther Park Health Center, a nursing home, located in Des Moines, Iowa. She worked as a charge nurse in both the intermediate and skilled care areas. As such, claimant supervised and directed care given to the residents. Claimant offered that this position required the same amount of physical work as her previous job, as she participated in actual management of the patients. Again, claimant sustained no injuries while working for this employer. In November of 1987, claimant returned to Lutheran Hospital as a staff nurse. She was responsible for providing total care to between four to six patients. Her duties included bathing and feeding the patients; helping the patients get into and out of bed; administering medications; and, fulfilling other orders as directed in order to care for the patients. Claimant worked on the medical surgery neurology floor, which houses mostly geriatric patients who require acute care. She described the work as requiring more "hands on work", and she was required to lift heavy patients on a regular basis. The hospital employed nurse aides who were assigned to the floor, and who were available for helping the nurses when necessary. Page 3 Claimant described her work as physically demanding. On April 1, 1989, claimant and an orderly were helping a patient back to bed. The patient slipped, and claimant had to lift the patient onto the bed. She stated that she felt as if everything in her low back "pulled." Claimant continued working, and finished her shift. She told both the orderly and the charge nurse on duty, Sue Blife, that she had hurt her back while helping the patient back into the bed. Claimant stated that she felt some discomfort, but did not seek any medical treatment. Claimant returned to work the next day, and the following day was unable to get out of bed. She called her supervisor, Connie Ziller, and was referred to the emergency room at Lutheran Hospital. Claimant received treatment from Larry Baker, D.O. His examination noted muscular and ligamentus tenderness in the lumbar area of claimant's back, bilaterally. He prescribed physical therapy on a daily basis, as well as Motrin and Tylenol 3. Claimant was taken off of work. (Joint Exhibit 1, Page 75) Claimant returned to Dr. Baker on April 10, 1989, and was told to continue her physical therapy. (Jt. Ex. 1, P. 76) Although claimant was to return to work on April 10, 1989, the evidence suggests that claimant did not return to work until May 2, 1989. Claimant felt better after the physical therapy, but her return to work made her condition worse. Subsequently, claimant began to receive medical attention from Gerald Loos, M.D., who continued physical therapy and took claimant off of work. He also ordered a CT scan of the lumbar spine, which showed minimal diffuse bulging at the disc at L3-4, and a marked diffuse bulging of the disc at L4-5. He noted a moderate degree of central canalicular spinal stenosis at the L4-5 level. (Jt. Ex. 1, P. 79) Dr. Loos referred claimant to William Boulden, M.D. Dr. Boulden prescribed physical therapy with Thomas Wheatley, LPT, which consisted of a stabilization and isometric program. Next, claimant participated in a work hardening program under the direction of Thomas Bower, LPT. Both programs were instituted for physical conditioning in an effort to raise claimant's functional capacity. (Jt. Ex. 1, Pages 22-41) Claimant defined the program as effective, as it increased both her lifting and moving abilities. In August of 1989, claimant was returned to work by Dr. Boulden. He recommended that she not return to nursing, or at least a nursing position which would require extensive lifting, such as her position at Lutheran Hospital. He also restricted claimant's activities, and curtailed bending, twisting or lifting activities. (Jt. Ex. 1, P. 23; 29; 30). On October 16, 1989, Dr. Boulden rendered the following opinion regarding her permanent impairment: At the present time, Karen has a 10% disability of her back. Page 4 I feel that the amount of disability that is related to her work-related injury is 5.0% of the 10%. In other words, I feel that 5.0% is pre-existing, 5.0% was made more symptomatic because of the work-related injury. (Jt. Ex. 1, P. 22) And, the following restrictions were recommended by Mr. Bower and Dr. Boulden: In our last functional that was performed August 21, 1989, following completion of the work hardening program, Karen was lifting 55 pounds maximally from the floor to waist position. Knee to chest was measured at 40 pounds and overhead lift was 43 pounds. She was able to carry 52 pounds, push 35 pounds and pull 68 pounds. We felt this placed her in a medium work classification as defined as infrequently lifting 50 pounds with infrequently defined as every two hours, and frequently lifting 25 pounds, with frequently being defined as every 5-20 minutes. Also frequent carrying of objects weighing 25 pounds would be expected as well. (Jt. Ex. 1, P. 31) Claimant did not return to work at Lutheran Hospital after her release from Dr. Boulden, as the hospital had sent her a letter in July of 1989 stating it could no longer hold open her position because it was unclear as to when claimant could return to work. (Jt. Ex. 5, P. 150) Claimant began her job search, and quickly found employment with the Iowa Veterans Home in Marshalltown, Iowa. She worked in the skilled unit, and her duties included passing out medications to patients, and, preparing patients for bed, which included washing their faces, and brushing their teeth. These patients were ambulatory, and claimant described the position as more supervisory than laborer. Claimant earned $10.06 per hour. Claimant left the Iowa Veterans Home in October of 1989, after working for the facility for two months. She stated that she left because the position required a 50 mile drive from Des Moines, and she was unhappy with the type of work assignments she was given. Claimant continued to look for suitable employment in the nursing field, and between October of 1989 and December of 1989, claimant sought help from the state vocational rehabilitation center, and joined a job club which assisted her in finding job opportunities to fit within her disabilities. Claimant contacted 48 employers during this time period. Additionally, she contacted Iowa Lutheran Hospital once or twice a week for potential jobs within the hospital. She interviewed for two (2) positions: a psychiatric technician, and an admitting clerk position. Page 5 She did not receive either job, and it was claimant's understanding that the hospital thought claimant might be hurt if she had to restrain one of the patients in her position as a psychiatric technician, and she did not have the necessary skills to fulfill the admitting clerk duties. Claimant's back condition and restrictions hindered her success in securing employment. She was turned down by the following employers: Mercy Hospital, for a nursing position, a day care position, and a pediatrics position; Polk City Manor, for a nursing home position; and, Nurse Force, Inc., for a position as a home care attendant. Eventually, claimant secured employment at Dietz Clinic in Des Moines, Iowa. Dietz Clinic is a doctor's offices associated with the University of Osteopathic Medicine, and it is considered a family practice clinic. Claimant began to work for this employer on December 19, 1989. Claimant is responsible for taking patients to the examining rooms; taking vitals; drawing blood and other laboratory procedures; and, assisting the doctors with examinations. Claimant indicated that she was not required to perform any lifting in order to fulfill her job requirements. In her prior position with Iowa Lutheran Hospital, she was required to lift approximately 85 percent of the time. Claimant's physical condition began to deteriorate as she was having increased pain in her back and right leg, and difficulty in functioning at her job. Claimant returned to Dr. Boulden in December of 1990. He encouraged claimant to lose weight, but he was unable to provide any further treatment. Claimant sought treatment from her family physician, David McInnes, M.D., who referred her to Douglas Koontz, M.D., for a second opinion. (Jt. Ex. 1, P. 45) Claimant saw Dr. Koontz on February 21, 1990. He ordered x-rays; an MRI; performed a neurological examination; and, ordered a epidural injection at Mercy Hospital. He also recommended surgery, and performed a lumbar laminectomy at the L4-5 level on April 17, 1990. (Jt. Ex. 1, PP. 6-8) Dr. Koontz released claimant to return to work on July 9, 1990. His final assessment is dated July 3, 1990: I saw Ms. Botts back in the office today about 2 1/2 months or so post-op from her L4/5 decompressive laminectomy and microdisectomy. She is doing much better and basically states she is getting along quite nicely. She still has some stiffness in her lower back, primarily in the mornings, but this seems to resolve as she's been up and around. Occasionally she gets muscle spasms in the back still. She states that her legs feel good and she is up and around doing quite a bit around the house at this point. She still takes the Naprosyn twice a day. Page 6 At this point in time, I feel Ms. Botts can return to her job and she would like to do so as of 07-09-90. . . . I do feel she has a permanent partial impairment rating as a result of her back injury and surgery. She had combination problem of lumbar stenosis as well as disc rupture and, based on the AMA guides, I feel her impairment rating is 16% to the whole person (this is based on a combined value of 9% due to stenosis and 8% due to disc rupture with removal). (Jt. Ex. 1, P. 3) Claimant returned to her job with Dietz Clinic on July 9, 1990. Claimant testified that she still requires occasional medication and medical treatment for her low back presently. In February of 1991, claimant underwent pinpoint steroid injections on three (3) occasions. (Jt. Ex. 1, P. 1) Claimant also stated that she has restricted some of her activities, and finds it difficult to put her shoes on; sweeping and vacuuming; carry groceries; standing for long periods of time; sitting for long periods of time; riding in a car for trips requiring one (1) hour or more; and, sleeping. Claimant has expressed an interest in receiving an associate degree in nursing from DMACC. However, she has been unable to complete these schooling due to financial reasons, and she feels she can not complete clinical aspect of the program. Apparently the clinical component would require claimant to perform duties similar to the one she was performing at the time of her injuries in hospitals and nursing homes. Specifically, she would be required to assist patients in the shower and bathtub, as well as help people in and out of bed. It was noted that claimant had completed her application for the associate nursing program, but had not enrolled in the program. Claimant had not finished the core classes necessary to enable her to enroll in the associate nursing program, and had maintained a 2.077 grade point average. analysis and conclusion of law The sole issue to be addressed in the case is the extent of claimant's industrial disability. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of Page 7 earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant's medical condition prior to the injury is unremarkable. She had never experienced any medical problems with her back, although the evidence suggests that she had a preexisting congenital back disease, spinal stenosis. Immediately after the injury, claimant felt pain, although she continued to work and finished her shift for Page 8 the day. Claimant worked the next day, but the following day experienced pain that relegated her to unable to get out of bed and unable to work. She presented to the emergency room at Lutheran Hospital, and was off work for approximately three (3) weeks. Attempts at conservative treatment helped claimant only a temporary basis, and she eventually underwent a lumbar laminectomy at the L4-5 level. Presently, claimant still complains of periodic sharp pains in her lower back, but is able to function well within her medical restrictions. As noted, claimant sustained a low back injury which mandated surgical intervention. She endured a healing period of approximately nine (9) months. Claimant's work history reveals that she has always involved in the health care profession, and she has had the opportunity to not only gain experience but also education in her chosen field. Claimant is a licensed practical nurse, and, prior to the injury had aspirations to become a registered nurse. Claimant's prior work experience has been concentrated in skilled and intermediate care facilities which house both the severely retarded young adults, and geriatrics. This area of the health care profession mandates heavy lifting, as well as bending, stooping and twisting. Presently, claimant is working in a doctor's office, and although she does have some hands-on duties with patients in the area of preparing for the examination, the work is certainly lighter than that work which she had performed prior to the injury. By claimant's own admission, she enjoys the work, but it was clear that she would like to return to the types of positions she held prior to the injury. It is unfortunate that the defendant employer was unable to find suitable employment to offer the claimant. Claimant's potential for rehabilitation is good; she is young and has many years left to be a part of the work force. Claimant is highly motivated as shown by the number of employers she contacted when she was released to return to work by Dr. Boulden. Claimant has attended classes at Des Moines Area Community College, and has sustained between a 2.0 and 2.5 grade point average. Emotionally, claimant appeared to be very stable, and the evidence shows she has a positive attitude towards the rehabilitation process. Her physical status has improved dramatically since the operation, and has noted earlier she is able to function at her job within her restrictions. Claimant is overweight, and has been suggested by all physicians that she lose weight in order to further accommodate her physical status. Claimant has received two (2) functional impairment ratings as a result of the injury. Dr. Boulden indicated that she had a ten (10) percent disability of her back; he assessed five (5) percent to a preexisting condition, and Page 9 the remaining five (5) percent was due to the work-related injury. Additionally, he agreed with Tom Bowers assessment that claimant was restricted to infrequently lifting 50 pounds and frequently lifting 25 pounds. This placed her in the medium work classification. Dr. Koontz, the physician who performed the surgery, assessed claimant's overall physical impairment at a 16 percent impairment to the body as a whole. He assessed nine (9) percent to the congenital stenosis, and a remaining eight (8) percent due to the disc rupture and removal. At the time of the hearing, claimant was earning $7.92 per hour in her present job at the Dietz Clinic. At the time of the injury, she was earning $7.50 per hour. After consideration of all of the factors that determine an industrial disability, it is found that claimant has sustained a 35 percent loss of earning capacity. In so finding, it is noted that claimant is absolutely precluded from pursuing work that she performed prior to the injury. She has a significant functional impairment rating, and although a portion of each rating given to her was assessed to a preexisting congenital condition, there is no evidence that suggests she encountered any problems with the preexisting condition. order THEREFORE, it is ordered: That defendants shall pay claimant permanent partial disability payments totaling one hundred seventy-five (175) weeks at the stipulated rate of two hundred nineteen and 70/199 dollars ($219.70) beginning October 16, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall received credit against this 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 defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33. That defendant shall file an activity report upon payment of this award as required this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Page 10 Page 11 Copies To: Mr Channing L Dutton Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines Iowa 50265 Mr Gale E Juhl Ms Angela Althoff Swanson Attorneys at Law 5400 University Avenue West Des Moines Iowa 50265 5-1801 Filed May 15, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : KAREN BOTTS, : : Claimant, : : vs. : : File No. 914250 IOWA LUTHERAN HOSPITAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARM BUREAU MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant is a 29-year-old woman, high school graduate, with an LPN degree. She worked as a staff nurse at Iowa Lutheran and sustained an injury to her low back. She underwent a lumbar laminectomy, and received two impairment ratings: 10 percent and 16 percent. Each rating addressed claimant's preexisting congenital condition. Work restrictions included not more than 50-lb. lifting, and limited bending, twisting and stooping. Claimant was highly motivated, and secured employment with a doctor's clinic at an hourly wage higher than that which she made at the time she was injured. She is precluded from returning to skilled nursing employment, and the employer was unable to find suitable work for her. Claimant awarded 35 percent industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DUAYNE F. HAESSLER, : : File No. 914265 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N ALUMINUM COMPANY OF AMERICA, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Duayne F. Haessler, against his self-insured employer, Aluminum Company of America, defendant. The case was heard on February 20, 1992, at the Davenport Urban Center. The record consists of the testimony of claimant. The record also consists of the testimony of James Huffman, machinist; Fred Mussmann, unit supervisor in the machine shop; Kevin O'Brien, senior personnel administrator with labor and benefits; and Margaret Kundel, R.N., plant nurse. The record also consists of exhibits A-1 through A-4, C-1 and C-2, as well as defendant's exhibits 1-7 (includes pages 1-69). It is also noted that many of the medical records were difficult to follow, as the respective dates were often cut from the photostatic copies. issues The issues to be determined are: 1) whether there is a causal relationship between the injury and any permanent disabil ity; 2) whether claimant is entitled to healing period benefits; 3) whether defendant is entitled to a full credit for all sick and accident benefits paid to claimant; and 4) whether claimant is entitled to penalty benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant commenced his employment with defendant on April 2, 1984. He was hired as a machinist and his duties varied. In busy seasons, claimant worked in excess of 40 hours per week. Claimant also engaged in construction and remodeling projects on the side. He testified he finished drywall and Sheetrock, he filled the cracks and nail holes. Additionally, he performed many of the electrical duties. Whenever claimant built a new home he testified he completed 80 percent to 90 percent of the project by himself. Prior to January of 1989, claimant had com pleted construction on his sixth home. Page 2 In September and October of 1988, claimant experienced some problems with his back. He sought treatment from his physician, W. F. Ramsey, M.D., who, in turn, treated claimant conserva tively. Dr. Ramsey diagnosed claimant as having "[b]ack [p]ain with [r]adiculot [sic]." Claimant was restricted from lifting 50 pounds. Claimant also sought osteopathic care during the same time from Eugene J. Mehl, D.O. Dr. Mehl diagnosed claimant for: At the time of my exam, I found tenderness and some rigidity in L5-Sl left side with equivocal straight leg sign. Duayne was placed on Robaxin and Motrin and asked to bring in previous XRay [sic] films. At that time, my diagnosis was acute lumbo sacral [sic] strain and possible disc herniation L5-Sl or L4-5. Duayne returned 11-27-89 and stated that the pain was getting worse over the last 10 days - pain in his lower back and L leg. He had equivocal straight leg left with no back pain at this time. He was told to return to Dr [sic] Whitemore [sic] for a reassessment of his condi tion. My diagnosis at that time was to consider rup tured disc and spondylosis of L5-Sl. I feel that this injury has been work related and a gradual onset. On February 19, 1989, claimant, with the assistance of James Huffman, was trying to assemble shafts into certain wheels. The shafts were cumbersome, although their actual weight was unknown. Claimant had no problems holding the shafts in place. However, after the shafts were positioned properly, claimant had diffi culty straightening up and he was having trouble walking. Claimant testified he felt pain across his back at the belt line and that the pain was unlike any pain he had experienced previ ously. On the following day, claimant reported the injury to his then supervisor, Dave Mackin. He, in turn, sent claimant to the company medical department. There he was placed on medical restrictions. Claimant was instructed not to lift more than 35 pounds and to refrain from lifting, twisting, turning, bending, squatting, pushing and pulling per the instructions of S. Louis Casta, M.D., plant physician. Defendant, for purposes of work ers' compensation deemed the injury: "cause and effect relation ship established. "Aggravation" of underlying Back condition meets OSHA recordability requirements." Claimant was off work and receiving workers' compensation benefits for the period from February 24, 1989 through March 14, 1989. Also during that time period, claimant was examined by William R. Whitmore, M.D., an orthopedic specialist. The ortho pedic specialist diagnosed claimant as having bilateral spondy lolysis at L5-Sl. Dr. Whitmore prescribed bed rest, medication and physical therapy. On April 7, 1989, Dr. Whitmore discharged claimant from care as claimant was generally doing well. Records for defendant on that date show that: "Has been discharged from Dr. care. States he's been feeling fine and feels his back restriction could be lifted to a heavy #." Dr. Casta limited claimant to lifting 25-30 pounds and from Page 3 engaging in pulling and pushing and from working in a stooped position. The plant physician also restricted claimant to lim ited stooping, bending and squatting or twisting. Claimant appeared capable of handling his duties so long as he worked within his restrictions. Then in August of 1989, claimant sought treatment from personnel in the plant medical department because of pain in the lower left back area. The nurse's notes for August 2, 1989 reveal: States it started last ___. States has had back prob lems in past. Does not recall any injury to it "nothing unusual." States pulled on a jig boom yester day but doesn't feel it caused it. Also played tennis ball c his kids last ___. States may have ___ it them. States it hurt about 1/2 hrs after playing c his kids. States has been on Motrin & Robaxin before. Dispensed Motrin 400 mg Tab 12 Robaxin 750 mg Tabs 15 to take gid as directed. Rest. reviewed per Dr. Casta. Nurse's notes for October 24, 1989, states that: Back pain 7-10 days ago started up & persisted ___ - not severe until this AM in bed. Muscle spasms today & pain c movement. His [sic] been __ active home-working c ___ walk. Request ___ ___. Will dispense Robaxin & Motrin for today & he will see Whitmore. May become aggravation of preexisting condition & Alcoa injury. States feels he did not do any specific thing to injur [sic] his back. States has been hanging drywall @ home. Does not recall specific incident. States back has been bothering him 7-10 days. States yesterday AM - back had been worse. Had sharp pain L lower side. Claimant continued to experience back pain. He visited the company medical department over the course of several months. On December 4, 1989, claimant was seen by Dr. Whitmore. He ordered an MRI. The MRI revealed a large central disk herniation at L4-5. Dr. Whitmore performed a lumbar laminectomy L4-5 left with excision of large extruded fragment. Claimant was released to return to work as of March 19, 1990. However, claimant was restricted to working 40 hours per week and from lifting more than 50 pounds. Claimant returned to work on March 27, 1990, where he was assigned his former position at his same rate of pay. Claimant's restrictions were removed as of July 25, 1990. Since that period, claimant has been able to work in excess of 40 hours per week when overtime is available. Claimant has also been able to perform all duties assigned to him. conclusions of law The party who would suffer loss if an issue were not estab lished has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). Page 4 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. 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 circum stances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disabil ity 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, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (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 opin47 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is mate rially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Page 5 Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evi dence to establish a proper apportionment is absent, the defen dant is responsible for the entire disability that exists. Bearce, 465 N.W.2d 531; Sumner, 353 N.W.2d 407. There is no question that claimant has sustained a work-related injury on February 19, 1989. The parties have stipulated that the injury has occurred. However, what is at issue is whether the February 19, 1989 injury is causally connected to claimant's alleged condition, or whether claimant's condition is attributable to some other cause unrelated to claimant's work. It is the opinion of Dr. Whitmore that claimant's condition is related to his work injury of February 19, 1989. In his report of February 27, 1989, Dr. Whitmore writes: [T]he episode of 2-24-89 and the current surgery are related. In my opinion, they are related and a condi tion that he had then has simply gone on to a situation that demands surgery at this time. The opinion of Dr. Whitmore is accorded great weight. He is a specialist in orthopedics, as well as the treating surgeon. Dr. Whitmore has had ample opportunity to assess claimant's con dition. He had seen claimant as early as February 24, 1989, just five days after the work injury of February 19, 1989. Dr. Whitmore's opinion is corroborated by the opinion of Dr. Mehl. No other physician has disputed the opinions regarding claimant's back condition. While it is true claimant had admitted that he engaged in vigorous construction work outside of his employment, there is no physician who has determined that claimant's condi tion is caused by anything other than the work injury on February 19, 1989. Claimant has proven by a preponderance of the evidence the requisite causal connection. The next issue to discuss is the issue of permanent partial disability benefits. Claimant alleges he has sustained an indus trial disability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inabil ity to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). Page 6 A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. 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 proportion ally 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 qualifi cations 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 arriv ing 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, moti vation - 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 disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). 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. Dr. Whitmore has opined claimant has a functional impair ment. In his April 9, 1990 office notes, Dr. Whitmore writes: I feel that he has a 10% permanent physical impairment secondary to his intervertebral disc disease and in conjunction with that, a Grade 1 spondylolysis. I feel his permanent physical impairment based on the lst degree spondylolysis would be 4%. Giving a total per manent impairment of 14%. Defendant has not demonstrated that apportionment is proper Page 7 in this case. Claimant is a young man who has worked steadily as a machin ist since 1975. He has been employed by defendant for nearly eight years. Initially, when claimant returned to work on March 27, 1990, claimant was operating with restrictions, including no work in excess of 40 hours per week. Claimant vigorously lobbied his treating physician to lift the restrictions as claimant was most desirous of returning to overtime work. With the exception of the 50 pound weight restriction, the restrictions were ulti mately lifted on July 25, 1990. Before that date claimant was precluded from working overtime. Claimant estimated he lost $6,500.00 in lost overtime wages. Whether the figure is accurate is difficult for the undersigned to discern. It is clear, how ever, that claimant did lose some overtime pay because of his work injury. Currently, claimant's position is not in jeopardy because of his low back condition. His job is stable. Claimant's one job restriction is only moderate in nature. Defendant is willing to accommodate claimant. At the time of the hearing, claimant tes tified he was working in his same job classification and that he was able to perform his job duties. Therefore, it is the deter mination of the undersigned that claimant is entitled to a 10 percent permanent partial disability commencing on March 26, 1990, at the stipulated rate of $442.40 per week. The next issue to address is the issue of healing period benefits. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recov ery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The evidence supports healing period benefits for the following periods: 2-24-89 through 3-14-89 and 12-16-89 through 3-26-90 The period is comprised of 17.143 weeks of healing period benefits at the stipulated rate of $442.40 per week. Defendant has previously paid claimant 2.429 weeks of healing period bene fits at the stipulated rate. Defendant is allowed a credit for the amount paid. Page 8 Defendant has also paid $4,025.97 in sick and accident dis ability benefits. Defendant requests a credit pursuant to sec tion 85.38(2). Defendant is allowed a credit for the net amount. The amount of credit allowed to an employer for disability income payments made under a group plan is the net amount which the employee realizes after any income taxes attributable to the group disability income payments are deducted from the total amount of payments actually paid. See Beller v. Iowa State Penitentiary, File No. 799401 (Appeal Decision July 10, 1991). The final issue in this case is whether claimant is entitled to penalty benefits pursuant to section 86.13(4). Section 86.13 permits an award of up to 50 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendant's delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonably in denying payment. See Stanley v. Wilson Foods Corp., file number 753405 (Appeal Decision, August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, file number 818849 (Appeal Decision, November 1, 1989). With respect to the instant case, it was fairly debatable for defendant to deny the claim from December 16, 1989 until defendant received the report of Dr. Whitmore dated December 27, 1989. At that point defendant had medical information supporting a work-related injury or, in the least, an aggravation of a pre existing condition. Defendant should have completed its investi gation by January 8, 1990 and commenced payment of weekly bene fits. Fortunately for claimant he was at least paid his sick and accident benefits in lieu of weekly benefits. It is the determi nation of the undersigned that claimant is entitled to five weeks of penalty benefits pursuant to section 85.38(4) at the rate of $442.40. order THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant seventeen point one-four-three (17.143) weeks of healing period benefits at the stipulated rate of four hundred forty-two and 40/l00 dollars ($442.40) per week. Defendant is to also pay unto claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of four hundred forty-two and 40/l00 dollars ($442.40) per week com mencing on March 26, 1990. Defendant is to also pay unto claimant five (5) weeks of penalty benefits at the rate of four hundred forty-two and 40/l00 dollars ($442.40) per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pur suant to section 85.30, Iowa Code, as amended. Page 9 Defendant shall receive credit as aforementioned for sick and accident benefits paid to claimant pursuant to section 85.38(2) of the Iowa Code, as amended. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1992. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Building Davenport, Iowa 52801 Mr. Michael W. Liebbe Attorney at Law 116 E 6th Street P O Box 339 Davenport, Iowa 52805 1803; 5-4000 Filed March 16, 1992 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : DUAYNE F. HAESSLER, : : File No. 914265 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N ALUMINUM COMPANY OF AMERICA, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1803 Claimant is awarded a 10 percent permanent partial disability for a work-related back injury which he sustained on February 19, 1989. Claimant is industrially disabled. Claimant is a young man who has worked steadily as a machin ist since 1975. He has been employed by defendant for nearly eight years. Initially, when claimant returned to work on March 27, 1990, claimant was operating with restrictions, including no work in excess of 40 hours per week. Claimant vigorously lobbied his treating physician to lift the restrictions as claimant was most desirous of returning to overtime work. With the exception of the 50 pound weight restriction, the restrictions were ulti mately lifted on July 25, 1990. Before that date claimant was precluded from working overtime. Claimant estimated he lost $6,500.00 in lost overtime wages. Whether the figure is accurate is difficult for the undersigned to discern. It is clear, how ever, that claimant did lose some overtime pay because of his work injury. Currently, claimant's position is not in jeopardy because of his low back condition. His job is stable. Claimant's one job restriction is only moderate in nature. Defendant is willing to accommodate claimant. At the time of the hearing, claimant tes tified he was working in his same job classification and that he was able to perform his job duties. 5-4000 Claimant is awarded penalty benefits pursuant to section 86.13 in the amount of five weeks. Page 1 before the iowa industrial commissioner ____________________________________________________________ : THOMAS D. BANNISTER, : : Claimant, : : vs. : : File No. 914298 EXECUTIVE CONCRETE : CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : INTEGRITY MUTUAL INSURANCE: CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA,: : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on September 6, 1991, in Mason City, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury on August 1, 1989. Defendant employer, Exectuive Concrete Construction, settled and this case proceeded with the Second Injury Fund of Iowa being the only defendant. The record in the proceeding consists of the testimony of claimant and Loren Aukes; joint exhibits 1 through 14; and claimant's exhibits 16 and 17. The exhibits 1 through 14 have been marked as claimant's exhibits but, in fact, were agreed to be evidence as joint exhibits. ISSUES The issues for resolution are: 1. Whether claimant's injury on August 1, 1989, arose out of and in the course of his employment; 2. Whether there is causal connection as to claimant's permanent disability; and 3. The nature and extent of claimant's permanent disability and entitlement to disability benefits, and the commencement date of any payments if there is an award. The defendants asserted the issue occupational disease, chapter 85A. The undersigned ruled at the beginning of the hearing that since this was not set out as an issue on the Page 2 prehearing report, it would not be an issue in this hearing. Notwithstanding this, the undersigned does not adhere to the theory that carpal tunnel injuries are an occupational disease. Also, costs are set out as an issue but claimant's exhibit 15 was withdrawn which referred to any costs in dispute. Therefore, it would appear that costs are no longer an issue. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 37-year-old who dropped out of the eleventh grade at mid-term, but he eventually received his GED in 1979. Claimant related the various community colleges he attended and the courses he took. These courses involved mechanics, automotive technology, etc. Except for an army mechanic diploma, claimant never finished these courses nor did he receive a degree from any of the community colleges. Claimant failed to complete the course requirements. Claimant described his work history which was interrupted by four years in the U.S. Army. This experience was in the vehicle mechanical area involving light to heavy work. Claimant described his 1979 motorcycle accident in which he injured his left arm and wrist. This led to a permanent impairment. Claimant described his work history and nature of his work after his 1979 motorcycle injury. He said his work involved light to medium weight work. His wages were $4 to $10 per hour. Some of these jobs involved mechanical work, the heaviest involving putting in vehicle rearends and transmissions. Claimant said he began working for defendant employer on March 31, 1989, as a concrete finisher. He testified he had no tingling or problems with his hands prior to March 31, 1989, but he did have only a 25 percent of normal strength in his left arm due to his 1979 accident. Claimant contends he used his left arm in all of these other jobs since 1979 but not as much. He said his leaving these other jobs is not because of his left arm injury. Claimant said he has never recovered from his November 1979 left arm injury up this date. He cannot use his left as well as his right. Claimant contends he got his carpal tunnel from pulling 10 to 24 inch steel pins (stakes) that were in the clay ground holding the concrete forms. Claimant said that after four or five weeks, he developed numbness and pain in both wrists but mostly in the right. Claimant contends he never had numbness in his left hand before the spring of 1989 and that he could hardly bend his left hand after the August 1989 injury. Claimant indicated that James M. Caterine, M.D., suggested surgey but claimant did not have surgery because the insurance company denied liability and would not pay for it. As shown by the records, it is apparent that claimant did not want surgeyr and that surgery was not eventually recommended. Page 3 Claimant said Dale M. Grunewald, D.O., took him off the job on August 1, 1989. From March 31, 1989 to August 1, 1989, claimant had consistently worked. Claimant said he had no restrictions prior to August 1, 1989. Claimant indicated Thomas F. DeBartolo, M.D., released him to work in December 1989 but claimant was not to do repetitive work or use a sledgehammer. Claimant indicated that after defendant employer and Dr. DeBartolo told him to get work, claimant got a spray painting job around July 22 to July 28, 1990, and worked for another employer from July 29, 1990 to August 4, 1990. Claimant then worked a couple of weeks for Aukes Lawn and Pest Control Company around October 1990. Claimant quit these jobs mainly because he thought he was unable to do the work or he did not want to be around chemicals. Claimant indicated that other than these jobs, he had no other jobs from August 1, 1990 to December 1, 1990. Claimant is now working for a Chevrolet dealership, having begun in April 1991, at $4.60 per hour. Claimant's job involves lubricating, oil changing, etc. Claimant indicated he had looked at mechanic jobs at all the auto dealerships in the area and found none. Claimant said his current job is also repetitive work. He believes he would not have his current job if the employer knew of his restrictions of no repetitious work. Claimant indicated his carpal tunnel condition is getting worse but he hasn't been back for medical care. Claimant testified the State Rehabilitation Department has not sent him to any employers. He said they told him to go back to school and get some grants. Claimant indicated he applied too late for grants. Claimant isn't sure whether he wants to go back to school or not. It is obvious claimant is putting this off. He indicated he is getting pressure from his girlfriend, the mother of his child. It appears this pressure is for financial support. Claimant plans to continue his current job with the Chevrolet dealership, but is thinking of going to work as a mechanic in Minnesota for his sister's boyfriend. He emphasized this is still up in the air as to his plans. On cross-examination, claimant was referred to interrogatory 13, which was answered on November 13, 1989, before the Second Injury Fund was a party to this action. At that time, claimant said his broken left wrist healed completely (Joint Exhibit 13, page 15). Claimant was questioned as to his direct testimony that he had no symptoms as to bilateral carpal tunnel prior to beginning work with defendant employer. The attorney referred claimant to joint exhibit A, where the doctor referred to claimant's confused history. Claimant acknowledged it is his bilateral carpal tunnel that prevents him from working nothwithstanding his left wrist injury. It appears surgery is not now recommended. Claimant indicated he has put in over 100 applications for various jobs. Claimant did not bring any of these with him. He said they were at home. Claimant appears to not realize Page 4 he has the burden of proof. Claimant's demeanor was questionable when he gave his answer. Claimant said he could do the pin pulling job if he had a pin puller. He said he is now making per hour close to what he was making with defendant employer but the dealership is not seasonal work. Claimant is making on a full-time basis now more than what he was making with defendant employer as seasonal work. Claimant said he never took a day off as a result of his left wrist 1979 motorcycle injury. Claimant contends he did not see a doctor for his left wrist problem after 1979 because he had no insurance and no money. He then contends he never complained about his left hand problems because he wouldn't have a job. It appears claimant does not have his story in sync. Claimant was questioned again as to his efforts to seek a job and was referred to joint exhibit 14 in which the doctor indicated claimant had not made a significant effort in seeking vocational counseling and making an effort to get into the type of work for which he is trained and more able to tolerate. Claimant basically had no response. Loren Aukes, owner of Aukes Lawn and Pest Control, knows claimant. He indicated claimant worked for him approximately two months in the fall of 1990 (September to October). Claimant was not required to fill out an application and he did not relate any wrist or physical problems with his arm or shoulder. He said the 30 pound bags of fertilizer claimant said he lifted were 50 pound bags. Aukes worked side by side with claimant and claimant would throw 8 to 10 bags of the fertilizer onto the truck and then he would lift and take them to the spreader. Aukes indicated the spreader holds 100 pounds and claimant would push the spreader. He said claimant never complained. Aukes said claimant told him he had a lawsuit against a construction company and if it gets settled, claimant will not have to work anymore. Claimant indicated in his rebuttal testimony that he did not believe he said this. He did not deny saying it. He also was not saying that Aukes lied. Claimant then confusingly said he did not say it and then again didn't remember saying it. Aukes acknowledged that claimant indicated to him that he was quitting the job because he was scared of the chemicals. On cross-examination, Mr. Aukes, after looking at claimant's W2's acknowledged that claimant worked for him for two weeks rather than two months. The medical evidence shows that claimant had a bilateral carpal tunnel syndrome. Claimant contends this condition all began with his employment with defendant employer. The facts appear to indicate that claimant had the beginning of carpal tunnel prior to his employment, but it appears that this condition materially and substantially ripened and was aggravated after claimant began working for defendant employer (Jt. Ex. 8) and the undersigned so finds. Claimant alleges a first injury on November 26, 1979, in Page 5 which claimant injured his left arm and incurred a 24 percent permanent impairment rating with A. J. Wolbrink, M.D. (Jt. Ex. 17, p. 34). The greater weight and credible evidence indicates claimant was still having problems with his left arm as of August 1, 1989 even though he was able to do the jobs. The undersigned finds claimant has a permanent loss of the use of his left arm as a result of the November 26, 1979 motorcycle injury and that 24 percent permanent partial impairment still exists (Jt. Ex. 10). Claimant testified as to his first injury and the current effect on him. Claimant vacillates on this point and doesn't seem consistent. (Also see Jt. Ex. 3, 5, 8 and 9.) It appears early in the game surgery was recommended (Jt. Ex. 5, 6 and 9). It later appears that surgery was not recommended (Jt. Ex. 8). Claimant seemed not to desire surgery and this may also have had some effect on the ultimate decision as the doctors could not guarantee perfect or better results on the condition that exists prior to any surgery. On January 29, 1990, Thomas F. DeBartolo, M.D., indicated claimant is not going to be able to return to the type of work he was doing with defendant employer. Claimant testified he could do the work if he had a pin puller (Jt. Ex. 8). On May 12, 1990, Dr. DeBartolo was urging claimant to complete his efforts to either finish his schooling or look for appropriate work (Jt. Exs. 11, 12, 13 and 14). It appears to the undersigned that claimant is not motivated and has other things in his life that interfere with what he should do. The undersigned believes the records support the fact that claimant most likely told Mr. Aukes, the lawn company owner and former employer, that if he won, he would not have to work anymore. This decision hopefully will set the claimant on a course of seeking stable employment and not expect a weekly check to be mailed to him for an indefinite period of time. On December 31, 1990, Dr. DeBartolo indicated claimant has not made any significant effort to find work or seek vocational counseling in an effort to get the type of work for which claimant is trained and appears to be more able to tolerate. On this date, the doctor said claimant has a significant residual impairment from his motorcycle injury (1979) to his left wrist, but separate therefrom and in addition thereto, he proposed a 5 percent impairment to each of claimant's upper extremities secondary to the bilateral carpal tunnel syndrome (Jt. Ex. 14). It appears claimant's restrictions are to avoid work where he would be doing a repetitive task in less than five minute intervals throughout the day. It would also be important to avoid the amount of force the patient has to use bilaterally in terms of generating forces in the range of 50 pounds intermit tently with his hands perhaps once an hour. A great majority of the force should be kept below those perimeters. Page 6 The medical evidence supports a finding that claimant in curred a simultaneous bilateral carpal tunnel injury that arose out of and in the course of claimant's employment on August 1, 1989. The symptoms claimant developed came about progressively and cumulatively from the time claimant began work with defendant employer on or about March 31, 1989. The undersigned finds that claimant incurred a 5 percent permanent impairment each to his right and left arms as a result of his August 1, 1988 cumulative injury. Since these injuries happened simultaneously, and under the provisions of 85.34(2)(s), these convert to 3 percent of the body as a whole impairments to the left and the right, which under the combined charts result in a 6 percent impairment to claimant's body as whole, thereby entitling claimant to 30 weeks of permanent partial disablity benefits. The undersigned finds that claimant had on August 1, 1989, a 24 percent permenent impairment to his left arm as a result of a 1979 injury. A 24 percent impairment to an arm amounts to 60 weeks that would be attributable to the 1979 injury. Claimant desires additional benefits from the Second Injury Fund and contends he has industrial disability resulting from the first injury and second injury which should entitle claimant to benefits over and above benefits he is entitled to from defendant employer as a result of the August 1, 1989 injury. Claimant is 37 years old and has had considerable experience with community colleges even though he has failed to continue the courses. Evidence indicates claimant is a suitable candidate for training or schooling. It would appear that claimant has considerable knowledge in the mechanical field. Claimant has not had a good work history. At the time of his injury his job was seasonal. He now has a job which pays about as much but is not seasonal. It seems to be more in his field as far as mechanics. Clainant indicated he could, in fact, do his old job as a pin puller to take the stakes out of the forms used for concrete work. This seems contrary to the doctor's restrictions and yet it is obvious claimant knows better. Claimant is not motivated. The undersigned seriously questions the extent that claimant has searched for work. Claimant incurred a serious impairment from a 1979 injury and worked through it. It appears claimant could do the same as a result of the August 1989 injury and the disposition of this case may help him have that incentive. Claimant has a minor loss of earning capacity and with effort the undersigned believes claimant could do more than he presently contends. The doctor's restrictions are not as clear as they could be. The undersigned believes the claimant can do more than he presently is attempting to do or feels he can do. Taking into consideration all those criteria in determining industrial disability, the undersigned finds that claimant has currently a 15 percent industrial disability as a result of his first and second injuries. This would entitle claimant to 75 weeks of permanent partial disability Page 7 benefits. After allowing a credit for the 60 weeks resulting from claimant's first injury which resulted in a 24 percent permanent partial impairment that still exists, and claimant's 30 weeks of permanent partial disability benefits as a result of his simultaneous bilateral carpal tunnel injury on August 1, 1989, both totaling 90 weeks, claimant is entitled to no more permanent partial disability benefits from the Second Injury Fund. The Second Injury Fund, therefore, is not liable to claimant for any more benefits. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 1, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of August 1, 1989, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that a disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in a gradual injury case is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincides with the time claimant was finally compelled to give up his job. This date was then utilized in determining rate and the timeliness of the claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. Before the second injury fund is triggered three require ments must be met. First, the employee must have lost or lost the use of a hand, foot, leg or eye. Second, the employee must sustain another loss or loss of use of another member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and second injury. See Allen v. The Second Injury Fund, State of Iowa, Thirty-Fourth Biennial Report, Iowa Industrial Commissioner 15 (1980); Ross v. Service Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa Indus. Comm'r 273 (1979). The fund is responsible for the difference between total disability and disability for which the employer at the time Page 8 of the second injury is responsible. Section 85.64. Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second Injury Fund v. John Deere Component Works, Iowa Supreme Court Case No. 88-399, filed February 22, 1989. Iowa Code section 85.34(2)(2) provides, in part: "The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such." Workers' compensation benefits for permanent partial disability of two members caused bvy a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s) and that the degree of impairment caused by a partial loss must be computed on the basis of functional, rather than industrial disability. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Page 9 It is further concluded that: Claimant lost the partial use of his left arm as a result of a November 1979 motorcycle injury which resulted in a 24 percent permanent impairment and that said permanency exists as of August 1, 1989. Claimant incurred a simultaneous bilateal carpal tunnel syndrome injury to his left and right arms that arose out of and in the course of his employment through a cumulative injury on August 1, 1989, which work injury resulted in claimant incurring an additional 5 percent permanent partial impairment to his left arm and a 5 percent permanent partial impairment to his right arm. As a result of claimant's simulaneous bilateral carpal tunnel syndrome injury on August 1, 1989, claimant incurred a combined body as a whole injury of 6 percent, entitling him under 85.34(2)(s) to 30 weeks of permanent partial disability benefits. As a result of claimant's first and second injury, he in curred an industrial disability of 15 percent and that this industrial disability was caused by claimant incurring an additional second injury on August 1, 1989. Because claimant's first injury involving 60 weeks and his second injury involving 30 weeks, totaling 90 weeks, is mor than the 15 percent industrial disability (75 weeks) that was incurred as a result of claimant's first and second injuries, claimant is entitled to no benefits from the Second Injury Fund. order THEREFORE, it is ordered: That claimant takes nothing further from these proceedings. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of October, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert S Kinsey Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr Dean A Lerner Assistant Attorney General Tort Claims Hoover Building LOCAL Page 10 5-1100; 5-1108 5-1803; 5-3200 Filed October 10, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : THOMAS D. BANNISTER, : : Claimant, : : vs. : : File No. 914298 EXECUTIVE CONCRETE : CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : INTEGRITY MUTUAL INSURANCE: CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA,: : Defendants. : ___________________________________________________________ 5-1100; 5-1108; 5-1803; 5-3200 Found claimant had a 15% industrial disability, but after offsetting first injury permanent impairment and the second injury scheduled member impairment (90 weeks total), claimant was not entitled to anything additional from Second Injury Fund. The employer had settled prior to the hearing.