BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JIMMIE LEE KING, Claimant, vs. File No. 917366 UNIVERSITY OF NORTHERN IOWA, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, : 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, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Jay P. Roberts Attorney at Law P.O. Box 178 Waterloo, Iowa 50704 Mr. Stephen Moline Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 1802; 1803; 4100; 4000.2 Filed September 21, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JIMMIE LEE KING, Claimant, vs. File No. 917366 UNIVERSITY OF NORTHERN IOWA, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ 1802 Claimant's healing period found to end on date claimant's treating physician released to return to return to work without restrictions even though claimant subsequently was unable to return to work. Medical records indicated that claimant did not progress in terms of healing beyond the point of the original full release to return to work. 1803; 4100 Forty four year old female, high school graduate who could not return to former work as a custodian awarded 40 percent permanent partial disability benefits. Claimant who had numerous non-work related health problems not found to be an odd-lot employee. Record established that claimant potentially had some transferable skills. Claimant had not meaningfully sought work since her inability to return to employment with employer, however. 4000.2 Claimant not found entitled to additional benefits for unreasonable delay in commencement or unreasonable termination of benefits. Physician released claimant to return to work without restrictions. Claimant underwent hysterectomy subsequent to the work release and prior to attempting a work return. Claimant attempted a work return and self assessed as unable to perform the work. Held that under the circumstances presented, claim was fairly debatable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JIMMIE LEE KING, : : Claimant, : : vs. : : File No. 917366 UNIVERSITY OF NORTHERN IOWA, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Jimmie Lee King, against her self-insured employer, the University of Northern Iowa, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on April 26, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Waterloo, Iowa on August 26, 1992. A first report of injury has been filed. The record consists of the testimony of claimant, Roger Marquart, Claratine Jackson and Rayford Bagsby, Sr., as well of claimant's exhibits 1-6 and defendants' exhibits A-F. ISSUES Pursuant to the hearing assignment order, the hearing report and the oral stipulations of the parties, the parties have stipulated to the following: 1. That claimant's gross weekly wage was $295.00 and that she was married and entitled to six exemptions at the time of her injury resulting in a weekly rate of compensation of $208.94; 2. That claimant did receive an injury arising out of and in the course of her employment on April 26, 1989; and 3. That a causal relationship exists between a period of temporary total or healing period disability and that defendants have paid claimant 12.2 weeks of temporary total or healing period disability at the appropriate rate. Page 2 Issues remaining to be decided are: 1. Whether a causal relationship exists between claimant's injury and claimed disability; 2. Whether claimant is an odd-lot worker under Guyton doctrine; 3. The nature and extent of claimant's disability; 4. Whether claimant is entitled to additional benefits under section 86.13, unnumbered paragraph 4, for unreasonable delay in commencement of benefits or unreasonable denial of benefits; and, 5. Whether defendants are entitled to a credit for long-term disability payments made to claimant from September 7, 1989 through April 29, 1991. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence finds: Claimant is a 44-year old married lady who has worked primarily as a custodian. She has had work experience as a commercial sewing machine operator and sewing inspector, however. Claimant worked as a custodian at the University of Northern Iowa from 1978 to her April 1989 injury. Her duties involved vacuuming, sweeping, cleaning bathrooms, washing windows, stripping floors, mopping and waxing. Additionally claimant would on occasion have to pick up objects weighing 60-80 pounds, move furniture and lift bags of trash weighing from 20-30 pounds into outside commercial dumpsters up to 100 feet away from her work site. Eighty pound barrels of trash also had to be lifted into the dumpsters on occasions. Claimant injured her right hip with a strained rectus femoralis muscle on approximately May 29, 1984. Jitu D. Kothari, M.D., treated her for that injury. On November 6, 1986, claimant experienced acute back pain when she tried to pick up a container and throw its contents into a dumpster. Dr. Kothari noted that she was tender throughout the left lower spine and had restricted range of motion particularly as to regards forward and right and lateral bending. Claimant's pain then decreased with complete bed rest. She was returned to light duty work with restrictions on bending, twisting, and lifting with the low back. She was not to lift greater than 20 pounds. As of November 20, 1986, claimant was doing her regular job. Dr. Kothari had prescribed a back brace which claimant used intermittently from November 1986 until her April 29, 1989 injury. On April 29, 1989, claimant experienced "pins and needles" in the back and leg as she tried to lift an 80 pound barrel of trash into a dumpster. She immediately saw H. N. Basu, M.D., who placed her off work for one week with bed rest. When claimant did not improve, Dr. Basu hospitalized her at Allen Memorial Hospital. Claimant then Page 3 had complaints of low back pain with radiation into the right leg. Right leg raising was positive. Claimant had no sensory or motor defects of the lower extremity. X-rays and CAT scan of lumbar spine of May 9, 1989 were interpreted as within normal limits although claimant had minimal central bulging at L5-S1 considered of no significance and spina bifida at L5-S1. A subsequent MRI of December 31, 1991, was interpreted as showing posterior bulging of the L4 disc with dehydration. Dr. Kothari saw claimant on May 19, 1989. He then released claimant for light duty work as of May 22, 1989, with restrictions of no lifting of greater than 20 pounds and no frequent bending, twisting or turning with the low back. On July 20, 1989, Dr. Kothari released claimant to regular duty work as of July 24, 1989. Claimant underwent a hysterectomy on July 27, 1989. The hysterectomy and period of recovery subsequent to the hysterectomy resulted in an inability to work unrelated to claimant's back injury. On October 17, 1989, Dr. Kothari reported that claimant had attempted to return to work but had not tolerated work on account of her back pain. He then reported that her long-term prognosis for a return to gainful employment was not good. On January 20, 1990, Dr. Kothari reported restrictions of no lifting of more than 20 pounds and no repetitive bending and twisting and turning of her lower back. Claimant was to do no prolonged sitting, standing or walking. Dr. Kothari reported that she was not able to work as a custodian. On January 25, 1991, Dr. Kothari decreased claimant's restrictions to no lifting of greater than 10-15 pounds, no frequent back bending, twisting or turning and no prolonged periods of sitting, standing and walking. He again reported that her prognosis for gainful employment was not good. On July 30, 1991, Dr. Kothari assigned claimant a six percent permanent partial impairment and diagnosed chronic recurrent lumbosacral strain related to her work injury and also chronic neck pain. Per Dr. Basu's notes, claimant has had migraine headaches since she was approximately 12 years old and as of July 15, 1991, was having headaches two or three times per week with two to three severe episodes in that past year. Claimant received long-term disability benefits from the Principal from September 7, 1989 through April 29, 1991. During that period she underwent vocational assessment with Dawn L. Palma and Lois Sanchez, M.A., C.I.R.S. of The Principal. Palma and Sanchez reported that claimant had maximum low back lifting of 20 pounds and maximum repetitive lifting of 10 pounds placing her in a light work category. They believed that claimant could perform the jobs of telephone answering service operator, customer service clerk, cashier, food and beverage checker, alternations tailor, salesclerk and teacher aide. Palma and Sanchez conducted a labor market survey which indicated that such jobs are available in the Waterloo, Iowa area. Claimant apparently attempted a return to work subsequent to her injury. She reported that her manager sent her home as she had a 20 pound lifting restriction and Page 4 he did not wish her to work with less than a 25 pound lifting capacity. In the course of the Principal vocational assessment, claimant applied for a job with Goodwill Industries. She did not pass the required math test in that she did not complete the math portion of the test. She was also unable to lift 40 pounds and reported her back injury. Claimant reported she was not hired for the cash register job. Claimant reported that she sought employment as a sitter with the elderly but was unable to secure that position in that it involved bending and lifting. Claimant has not sought employment since April 1991. Claimant reported that she is never pain free and that both her upper and lower back and her legs and arms hurt continuously. She has been treated for depression. Beyond her loss of income, claimant has had marital problems and a series of family deaths as life stressors. Vocational rehabilitation specialist Roger Marquart also assessed claimant vocationally. He reported that claimant was not of an advanced age and, therefore, is was not unrealistic for her to switch occupations. He indicated that as she has a high school education but no further training it is questionable if she could return to school given her extended time away from school. Marquart agreed that claimant could not return to her past relevant work as it involved unskilled labor with lifting of 50 to 100 pounds. He described claimant as motivated but having no transferable skills. Marquart questioned whether claimant could do light duty work given her restrictions on prolonged sitting, standing and body movement. Marquart opined it was unrealistic to believe claimant could be placed in the jobs listed in the Principal's vocational assessment. He opined it is very difficult to secure full time competitive employment for individuals like claimant. He agreed, however, the jobs exist that claimant could do although it is extremely questionable that those jobs are available to claimant. He stated one would only know if one knocked on employers' doors to see if the job was out there. It is expressly found that the labor market survey conducted by vocational specialists Palma and Sanchez indicated jobs are available that might be within claimant's physical capacities. It is further found that claimant's failure to seek such jobs makes it impossible to assess whether such jobs are available to claimant within the Waterloo, Iowa area. CONCLUSIONS OF LAW Our first concern is whether a causal relationship exists between claimant's claimed disability and her work injury. 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 5 other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Dr. Kothari has related claimant's chronic recurrent lumbosacral strain to her work injury. There is little question that claimant was in a healing period until July 24, 1989, which healing period directly related to April 29, 1989 work injury. A more difficult question exists as to whether claimant remained in a healing period directly related to her work injury after Dr. Kothari's regular duty release of July 24, 1989. The record reflects that claimant underwent a hysterectomy in this period. It also reflects that she attempted a regular duty return to work and was not able to tolerate it. As of January 20, 1990, Dr. Kothari had placed work restrictions on claimant and indicated she would not be able to work as a custodian. He decreased her lifting restriction as of January 25, 1991. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). All the above suggests that claimant's condition did not improve significantly after July 24, 1989, and that there was no reasonable expectation of improvement subsequent to that date. Claimant is found to have established a causal relationship between her work injury and a period of healing period disability running from her date of injury on April 29, 1989 to July 24, 1989. We reach the question of the nature and extent of claimant's permanent disability entitlement including the question of whether claimant is an odd-lot worker under the Guyton doctrine. In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. The burden of persuasion on the issue of industrial disability always remains with the worker. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence Page 6 of suitable employment shifts to the employer, however. If the employer fails to produce such evidence and if the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. We are not persuaded that claimant is totally disabled under the odd-lot doctrine. Vocational specialists Palma and Sanchez identified employment for which claimant may be suited. Vocational specialist Marquart, while opining that it likely would be very difficult to secure full time competitive employment for claimant, indicated that the only way to know if jobs were available for claimant would be to knock on potential employers' doors to see if the jobs were available. The Principal vocational specialists did perform a labor market survey and informed claimant of a number of available jobs. The evidence shows that claimant did not avail herself to seek the great majority of those jobs. Without some meaningful effort on claimant's part to secure employment and the subsequent failure to secure employment after a meaningful effort, it cannot be said that claimant is totally disabled on account of her work injury and her work related impairment and restrictions. The work injury and related restrictions place claimant in the light work Page 7 category only. They do not preclude claimant from employment. Likewise, claimant has a high school education. Correspondence of claimant to the Principal in evidence suggests that claimant would not have a problem educationally in functioning in a number of jobs within the light category. Likewise, claimant has past relevant work experience as an industrial machine sewer. It has not been shown that claimant's physical limitations and work related disability would preclude her seeking and finding employment utilizing those skills. Hence, it cannot be said that claimant is a worker who can perform only services that are so limited in quality, dependability or quantity that no reasonably stable market for them exists. We consider the nature and extent of claimant's permanent partial disability entitlement. Claimant has a variety of disabling conditions not related to her work injury. These include her right torsal tunnel entrapment, her migraine headaches, her depression, and symptomatic sequalae of her hysterectomy. While these may well impact on claimant's current employability, they cannot be said to be conditions for which defendants bear liability. On the other hand, claimant does have severe limitations on lifting, bending, twisting, stooping and on prolonged standing, sitting and walking which relate to her work injury and which preclude her returning to work in her previous job. Additionally, the employer did not accommodate claimant in providing her with work within her restrictions. Indeed, the employer has refused to give claimant any work subsequent to her injury. Claimant is at an age where retraining may be possible but is not as probable to be successful as retraining might well be for a younger worker of similar education and intelligence. Claimant's motivation is somewhat questionable. Claimant's unfortunate perception of herself as wholly disabled appears to have prevented her from taking reasonable and appropriate steps towards rehabilitation. As noted above claimant's failure to attempt either wholehearted rehabilitation or wholehearted jobseeking makes assessment of what work may be available to claimant difficult. It appears, however, that jobs identified which might be available to claimant and which claimant potentially could perform would be jobs paying at or slightly better than minimum wage. Claimant was earning $295.00 per week at the time of her injury. That amount appears fairly reflective of her earnings capacity at the time of the injury. Under the scenario currently presented, claimant has sustained a loss of earnings capacity related to her work injury of approximately 40 percent for which she is entitled to permanent partial disability benefits of 40 percent of the body as a whole equaling 200 weeks of benefits. As claimant appears to have reached maximum medical improvement as of July 23, 1989, such benefits shall commence on July 24, 1989. We reach the question of claimant's entitlement to Page 8 penalty benefits. 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 defendants' 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 No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). As noted the standard is whether the claim can be fairly debated. In this instance, claimant's treating physician had released claimant to work without restrictions in July 1989. Claimant on her work return subjectively assess as unable to perform the work and was subsequently off work with intermittent medical follow-up. Given the earlier full release, defendants could reasonably question whether claimant's then reported difficulties related to the work injury. Likewise, given claimant's other medical problems including her intervening non-work related hysterectomy, defendants could reasonably question whether claimant's inability to work related to the work injury. Given such, it must be said that claimant's claim to permanent benefit entitlement was fairly debatable such that defendants did not act unreasonably in denying payment. Claimant has not shown an entitlement to additional benefits under section 86.13, unnumbered paragraph 4 We reach the question of entitlement of credit for long-term disability benefits defendants have paid claimant. Pursuant to section 85.38(2), defendants are entitled to a credit for such benefits if the benefits would not have been paid or would not have been payable if rights for recovery existed under the workers' compensation law. A review of the Principal file in evidence demonstrates that the long-term disability benefits are paid for non-occupational conditions and not for work related conditions. Hence, defendants are entitled to a credit for amounts paid under the long-term disability plan for the times stipulated to by the parties, that is, from September 7, 1989 through April 29, 1991. Page 9 ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for two hundred (200) weeks at the rate of two hundred eight and 94/100 dollars ($208.94) with those benefits to commence on July 24, 1989. Defendants pay claimant healing period benefits at the rate of two hundred eight and 94/100 dollars ($208.94) from her injury date through July 23, 1989. Defendants receive credit for long-term disability benefits paid claimant from September 7, 1989 through April 29, 1991. Defendants receive credit for any workers' compensation benefits previously paid. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to Iowa Code section 85.30 as amended. Defendants pay costs pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as ordered by the agency. Signed and filed this ____ day of September, 1992. ________________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Jay P Roberts Attorney at Law 620 Lafayette Street PO Box 178 Waterloo Iowa 50704 Mr Stephen Moline Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 1802; 1803; 4100; 4000.2 Filed September 30, 1992 HELENJEAN M. WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JIMMIE LEE KING, Claimant, vs. File No. 917366 UNIVERSITY OF NORTHERN IOWA, A R B I T R A T I O N Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ___________________________________________________________ 1802 Claimant's healing period found to end on date claimant's treating physician released to return to return to work without restrictions even though claimant subsequently was unable to return to work. Medical records indicated that claimant did not progress in terms of healing beyond the point of the original full release to return to work. 1803; 4100 Forty four year old female, high school graduate who could not return to former work as a custodian awarded 40 percent permanent partial disability benefits. Claimant who had numerous non-work related health problems not found to be an odd-lot employee. Record established that claimant potentially had some transferable skills. Claimant had not meaningfully sought work since her inability to return to employment with employer, however. 4000.2 Claimant not found entitled to additional benefits for unreasonable delay in commencement or unreasonable termination of benefits. Physician released claimant to return to work without restrictions. Claimant underwent hysterectomy subsequent to the work release and prior to attempting a work return. Claimant attempted a work return and self assessed as unable to perform the work. Held that under the circumstances presented, claim was fairly debatable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHARLES E. JIMMERSON, : : Claimant, : : vs. : File No. 917653 : ACRO MANUFACTURING CORP., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : UNITED FIRE & CASUALTY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Charles E. Jimmerson, against his employer, Acro Manufacturing Corporation, and its insurance carrier, United Fire & Casualty, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on April 28, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Cedar Rapids, Iowa, on May 21, 1992. A first report of injury has been filed. The record consists of the testimony of claimant and of Shawn M. Tigert as well as of joint exhibits 1 through 5 and claimant's exhibits A through D. ISSUES Pursuant to the hearing assignment order, the prehearing report and the oral stipulations of the parties, the parties have stipulated to the following: 1. That claimant did receive an injury which arose out of and in the course of his employment on April 28, 1989; 2. That a causal relationship exists between claimant's injury and claimed healing period or temporary total disability; 3. That defendants have paid claimant five weeks and six days of healing period or temporary total disability benefits entitling defendants to a credit in the amount of $890.73; and, 4. That claimant's rate of weekly compensation is $152.08 based on a gross weekly wage of $220.00 for a Page 2 married individual entitled to three exemptions. Issues remaining to be decided are: 1. Whether a causal relationship exists between claimant's work injury and claimed permanent disability; 2. The nature and extent of any benefit entitlement for both permanent and healing period or temporary total disability; and, 3. Whether claimant is entitled to payment of certain medical costs. As to medical costs, it is disputed that the fees charged for medical services or supplies were reasonable; that the expenses incurred were reasonable and necessary medical treatment; that the expenses were causally connected to the work injury; and, that defendants authorized the expenses. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 41-year-old gentleman who is 5 feet, 8 inches tall and weighs approximately 103 pounds. Claimant has completed eighth grade, obtained a GED in 1972, and has attended various community college programs obtaining a diploma in business development from Kirkwood Community College in 1991. Claimant has had work experience as a janitor, deck hand, interior and exterior painter and machine operator. He currently works as a security guard. His current position involves minimal lifting and help is available should claimant need assistance in lifting. Claimant began work at Acro Manufacturing as a band saw operator in approximately February 1989. He described that job as involving a lot of manual work. A band saw operator placed raw stock consisting of 15'-20' steel or iron on a metal band cutter using either an overhead hoist or a forklift. On his injury date, claimant was loading steel stock approximately 20 feet long and 3 1/2 inches in diameter from the forklift to the band saw conveyor belt. As claimant was manually pushing the stock onto the belt, an end fell off. Claimant pulled the end of the stock in an attempt to get it back on the rollers. Claimant felt immediate pain in the shoulder area. Subsequent to the April 28, 1989, work incident, claimant revisited Leland G. Hawkins, M.D., with whom he had begun treating on April 13, 1989. On May 15, 1989, Dr. Hawkins released claimant to return to work with a cervical Page 3 collar. After two and one-half days of work, claimant had an aggravation of symptoms and was again off work. Claimant was again released to return to work on approximately May 30, 1989, with a 20-pound lifting restriction. On his work return, claimant's employer advised claimant that no light-duty work was available and that his production was down. The employer then terminated claimant. It is expressly found that claimant's inability to physically perform his job played a role in his employment termination. Subsequent to his work release, claimant attempted job retraining in wastewater management. While claimant performed well in his classroom work, claimant had an aggravation of his physical symptoms while attempting to physically perform his practicum. His vocational rehabilitation counselors then advised him to pursue less strenuous training. Claimant then enrolled in and completed his business development curriculum. With assistance from his vocational rehabilitation counselors, claimant was able to obtain his current employment with Merrill Security in June 1991. Claimant there had a beginning salary of $4.75 per hour and now earns $4.85 per hour. In summer of 1991, claimant was able to obtain significant overtime hours at Merrill. Claimant's current employer considers him a good employee, although not having as much overall experience as some of its other guards. It appears that claimant's job with Merrill is as secure as that of any at-will employee provided Cargill continues to renew Merrill's contract to provide Cargill with security services. In late July 1989, claimant was attempting to remove and then install a starter in his car. Claimant began to experience neck pain while working under the car holding the starter. The started subsequently fell on claimant's face causing an abrasion and additional symptom aggravation. Claimant describes his post-injury symptoms as pain in both shoulders, pain in the neck radiating into his right arm and headaches differently located than were headaches prior to his April 28, 1989, work incident. Medical evidence in the record does not support claimant's testimony, however. Specifically: On March 9, 1988, R. Reider, M.D., noted that claimant had a five-year history of posterior neck headaches which often radiated to the right side of the head into the top of the head over the right eye. The headaches lasted 1-2 hours and occurred 3-4 times per week. On June 26, 1988, a Dr. Eilers indicated that claimant had a long history of neck pain and headaches of questionable etiology with the headaches being in any area of the head and producing a throbbing pressure feeling and nausea. On July 1, 1988, neurologist O. Anchetta, M.D., opined Page 4 claimant had persistent muscle contraction headaches which started in the back of his neck, came over the head in a band-like formation and affected the temples bilaterally. On July 18, 1988, these were noted to last all day approximately five days per week. On August 15, 1988, MRI of the cervical spine revealed mild degenerative changes but was otherwise unremarkable without evidence of disc herniation. On April 13, 1989, Dr. Hawkins noted that claimant was complaining of increasing pain in the cervical spine over two years' duration. The pain was noted to radiate into the occipital area with pain on extremes of flexion and hyperextension. Claimant was then tender on the C7 interspinous ligament. Conservative care with a cervical pillow, ice, heat and physical therapy and exercise were prescribed. An April 14, 1989, note of D. Griffith, licensed physical therapist, notes that claimant had a history of complaints in the cervicothoracic area over 4-5 years. The assessment was of chronic neck sprain of the cervicothoracic region with tightness through the back and neck. On May 1, 1989, Dr. Hawkins noted a history of claimant pulling on steel on April 28, 1989, and experiencing increasing pain in the cervical spine in the posterior aspect "where he had his pain before." On June 19, 1989, Dr. Hawkins indicated that claimant had an increase in mobility in the cervical spine and was capable of increasing his activity. Dr. Hawkins then released claimant to return to work without restrictions. A note of July 26, 1989, indicates that claimant's neck was better until he irritated it a couple of weeks previously for about five days with headaches when he helped make a picnic table. The note further states that claimant took a starter out of a car which irritated his neck for a few days. A history of August 9, 1989, indicates that, on July 30, 1989, claimant was putting a starter in a car when his left arm went numb and he dropped the starter on his head and face. A note of January 17, 1990, indicates that claimant had put a bed together on a previous Saturday and subsequently experienced pain. On February 27, 1991, it is noted that claimant had had car problems on the previous day and, while working on his car, had pain in the cervicothoracic and upper trapezius area. On November 15, 1989, Earl Bickel, M.D., noted that claimant had complaints of neck swelling, headaches, stinging sensation and mild muscle spasm. On examination, claimant had mild tenderness along the foraminal neck area with good range of motion and was neurologically intact. X-rays were interpreted as relatively normal with well-maintained disc spaces, no degenerative changes, and no anterior posterior spurring. Foramina were open and facets were not involved. On December 14, 1989, Dr. Bickel apparently for vocational rehabilitation restricted claimant from lifting more than 20 pounds and from repetitive hand motion, gripping, arm movement and pushing and pulling. Page 5 An MRI of the cervical spine of December 6, 1989, revealed a very slight, probably insignificant bulging intervertebral disc at C4-5 which disc did not result in significant effacement of the anterior portion of the subarachnoid space. The disc had not resulted in displacement of the spinal cord nor resulted in significant nerve root compression. On May 3, 1990, P. Murray, M.D., and R. L. Henderson, M.D., of the Orthopaedic Surgery Department of the University of Iowa Hospitals and Clinics, reported that claimant had a five-year history of neck pain first coming on in 1984 when he was doing a lot of desk work. Pursuant to the history, claimant initially had headache with a subsequent decrease in his headaches and an increase in his neck pain. The history further recites that claimant stated he reinjured his neck at work without a specific incident, although his work required lifting of approximately 140-pound objects. An x-ray of May 3, 1990, revealed minimal degenerative disc disease with marginal osteophyte formation at C5-6. On May 31, 1990, Marty Schwendinger, R.N., of the Mercy Medical Center Pain Management Center, reported on a nursing evaluation that claimant had a history of headaches and neck pain since 1984. Nurse Schwendinger indicated that, at that time, the headaches were almost daily and originated at the base of the skull and radiated to various regions of the head. Schwendinger indicated that claimant's current headaches originate at the base of the skull and radiate generally to the occipital region but vary in location as to the entire head or the left or right side of the head. Frequency of headaches on May 31, 1990, was three or four times per week. Schwendinger reported claimant's giving a history of a neck injury at work in April 1989 with neck pain intensified and left shoulder and arm intermittently involved since then. In a Pain Management Center biogenic evaluation of June 6, 1990, C. Sparks noted claimant had complaints of neck pain over the previous five and one-half years of uncertain origin with neck and shoulder tension headaches. On March 2, 1992, claimant was noted to have continued neck discomfort with muscle spasm on both sides of the neck and shoulder blades. Claimant was also reported as having occasional numbness in the thumb with radiation to both index fingers, more on the left when driving. Claimant had bilateral pain in the foraminal area at apparently C4, 5 and 6 and had normal motor and sensory exams. A small mass was noted on the supraspinous fossa. A repeat MRI of March 5, 1992, showed slight bulging of the C4-5 disc essentially unchanged from previous study. It was further interpreted on March 17, 1992, as showing marginal osteophytes of the vertebral bodies at C4-5, C5-6 and C7-T1. Claimant was not considered a surgical candidate and symptoms were described as of myositis or inflammation of the muscular layers with muscle spasms. Page 6 On May 7, 1991, Dr. Hawkins opined that claimant was disabled from April 28, 1989, through June 15, 1989, as a result of the April 28, 1989, incident. Dr. Hawkins indicated there were no x-ray changes as a result of the April 28, 1989, work injury and that claimant had no permanent injury as the result of that injury. Dr. Hawkins further opined that claimant's starter incident recorded in his August 1, 1989, notes was the beginning of another injury to claimant's cervical spine. On September 5, 1991, R. F. Neiman, M.D., opined that, although claimant had had preexisting cervical spine problems, the "density of the discomfort has certainly been aggravated by the action which occurred in April of 1989." Dr. Neiman opined that claimant had a 14.4 percent body as a whole disability of which 4 percent related to his preexisting condition and 11.4 percent related to the April 28, 1989, work injury. Dr. Neiman opined that claimant was capable of light-duty work without prolonged sitting or standing and without extensive neck mobility. He opined claimant should avoid long motor rides, should lift no more than 15-20 pounds on a repetitive basis but could lift up to 35 pounds no more than 4 times per hour. Claimant was also advised to avoid sudden temperature changes. Dr. Hawkins' opinion testimony that no permanent injury resulted from claimant's April 28, 1989, work incident is accepted over Dr. Neiman's opinion that the April work incident aggravated claimant's preexisting condition. Dr. Hawkins was claimant's primary treating physician for his cervical spine complaints both before and after the work incident until Dr. Hawkins' demise. Dr. Neiman was an evaluating physician only. Dr. Hawkins, therefore, was in a better position to judge the actual impact of claimant's April 28, 1989, work incident on claimant's overall functional well being. Additionally, Dr. Hawkins' testimony is substantiated by other medical evidence in the record in that the medical evidence both prior to and subsequent to claimant's work injury shows that radiologic findings and physical examination findings are substantially similar during both those periods. It is expressly found that claimant has not established any permanent functional impairment causally related to his April 28, 1989, work incident. In that Dr. Hawkins has opined that claimant was temporarily totally disabled from the April 28, 1989, work incident through June 15, 1989, claimant is found to be entitled to temporary total disability benefits for that period less those two days when claimant was actually working for defendant employer. Defendants have paid claimant weekly compensation at the appropriate rate for five weeks and six days. Claimant is entitled to seven weeks of benefits, less two days, or six weeks and five days of benefits. Since defendants receive credit for the five weeks and six days of benefits previously paid, defendants are found liable to claimant for .857 weeks of temporary total disability benefits. Page 7 Claimant is not found to have sustained any permanent disability entitling him to permanent partial disability benefits on account of loss of earning capacity. Claimant has not been found to have a permanent partial functional impairment on account of his April 28, 1989, work incident. Claimant's employer dismissed claimant subsequent to his work injury. That dismissal pointedly related to claimant's inability to physically perform his job. The record reflects that claimant was having difficulties similar to those brought to the fore by his April 28, 1989, work incident both immediately and substantially prior to that work incident. The record also reflects that claimant had similar difficulties as well brought on by several other incidents subsequent to his work incident. Claimant does have restrictions on account of his physical condition. His physical condition remains that condition which claimant brought to his work, however. The condition, and presumably appropriate restrictions on account of that condition, have not changed substantially on account of the April 28, 1989, work incident. Claimant's April 28, 1989, work incident was not a substantial aggravation of his preexisting condition. Indeed, claimant's April 28, 1989, work incident can best be described as bringing to light claimant's preexisting physical condition and his preexisting inability to perform the work of band saw operator without physical difficulties rather than having lit up an otherwise dormant physical condition. Hence, claimant's dismissal for inability to physical perform the work of band saw operator subsequent to the April 28, 1989, work incident is found related to claimant's preexisting physical difficulties which prohibited him from successfully performing the job of band saw operator and not related to the April 28, 1989, incident of itself. Hence, claimant's dismissal without more and in the absence of any functional permanent impairment related to the April 28, 1989, work incident does not form the basis for an industrial disability award. While claimant seeks payment of medical costs, no medical bills are in evidence. Claimant reported that $180 remains outstanding for his evaluation at the Mercy Medical Center Pain Management Center. That bill was submitted to a collection agency and claimant has made $20 in payments on the bill. No copy of the bill was available. Without more, claimant's testimony regarding the bill would not be sufficient for payment. Additionally, medical evidence suggests that claimant's need for evaluation at the Mercy Medical Center Pain Management Center related to claimant's preexisting condition and not to his temporary work injury. Therefore, it is expressly found that claimant's evaluation at the Mercy Medical Center Pain Management Center did not relate to his temporary work injury and medical costs relative to that evaluation are not costs for which defendants are liable. CONCLUSIONS OF LAW As to the issue of whether a causal relationship exists Page 8 between claimant's April 28, 1989, injury and claimed permanent disability: 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially 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 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). For reasons stated in the above Findings of Fact, claimant has not established a causal relationship between his April 28, 1989, injury and claimed permanent disability. Claimant further has not established that his April 28, 1989, injury resulted in a material aggravation or lighting up of his preexisting condition of cervical spine, neck, shoulder and headache pain. As to the issue of claimant's entitlement to temporary total disability, section 85.33(1) provides that an employee is entitled to temporary total disability weekly 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 the injury, whichever occurs first. In this instance, claimant returned to work on or about May 26, 1989, at which time he was dismissed. Claimant was released for work without restrictions on June 19, 1989. Dr. Hawkins has Page 9 opined that claimant was no longer temporarily totally disabled on account of his April 28, 1989, work incident as of June 16, 1989. It is determined that that is the date on which claimant was medically capable of returning to employment substantially similar to any employment in which he could have engaged without aggravating his preexisting condition at the time of his injury. In that claimant never returned to work, the "medically capable of returning" test as set forth here is adopted and claimant has established entitlement to temporary total disability benefits through June 15, 1989. As to the question of industrial disability entitlement: 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 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 Page 10 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. As recited in the above Findings of Fact, claimant has not established functional impairment on account of his work injury. Likewise, claimant has not established that the employer terminated him from employment for which he would otherwise have been fitted on account of his work injury. Therefore, claimant has not established an entitlement to industrial disability on account of a loss of earning capacity on account of his work injury. As regards the issue of payment of certain medical costs pursuant to section 85.27: The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). In that it has been found that claimant's evaluation at the Mercy Medical Center Pain Management Center related to claimant's underlying preexisting condition and not to his work injury, claimant has not established entitlement to payment of that medical cost. Page 11 ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant point eight five seven (.857) weeks of temporary total disability benefits at the rate of one hundred fifty-two and 08/100 dollars ($152.08) per week. Defendants pay interest pursuant to Iowa Code section 85.30, as amended. Claimant and defendants share equally in payment of the costs of this action pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Mr. Matthew J. Nagle Attorneys at Law 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. John M. Bickel Attorney at Law 500 Firstar Bank Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 1801; 1803; 1807 Filed July 15, 1992 HELENJEAN M. WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHARLES E. JIMMERSON, Claimant, vs. File No. 917653 ACRO MANUFACTURING CORP., A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE & CASUALTY, Insurance Carrier, Defendants. ____________________________________________________________ 1801; 1803; 1807 Claimant claimed injury and subsequent disability as a result of a work incident. Medical evidence established claimant had had similar complaints both prior to the injury and following nonwork-related incidents occuring subsequent to the claimed work injury. Treating physician's opinion of temporary aggravation of preexisting condition without work-related permanent disability accepted. Employer terminated 5'8", 103-pound claimant for inability to perform band saw operating job on release for work with restrictions after work incident. Termination did not result in industrial disability in that termination related to claimant's preexisting inability to perform job as manifested in the work incident and did not relate to disability the work incident produced. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHRIS CRABLE, : : Claimant, : : vs. : : File No. 917787 MODERN WELDING CO., INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION (AGI), : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Chris Crable, against his employer, Modern Welding Co., Inc., and its insurance carrier, National Union Fire Insurance, defendants. The case was heard on January 10, 1994 at the Des Moines County courthouse in Burlington, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of Pamela Crable, spouse; Robert E. Taeger, plant superintendent; and Keith A. Tager, plant manager. Finally, the record is comprised of claimant's exhibits 1-46 and defendants' exhibits A-D. ISSUE The sole issue to determine is the nature and extent of any permanent partial disability benefits. FINDINGS OF FACT Claimant is the 36-year-old married father of two small children. He is a 1977 graduate of Burlington High School. As a student, claimant enrolled in courses which involved the building trades and other shop courses. He indicated he was a C student. Claimant commenced his employment with the present defendant-employer while he was in high school. He received on-the-job training in the use of grinders; buffers; drills; drill presses; band saws; sandblasters; and he learned how to weld. His duties included working in the test area; reading blue prints; and patching tanks and air testing them. He was not required to draft written reports. On May 24, 1989 claimant was assisting in the installation of a fuse box which was located under a work bench. According to claimant, he was having a difficult time installing the box; he Page 2 was pushing on it; and at some point there was a flash of orange-yellow light and an intense heat. There was a loud pop like the sound of an explosion. Then claimant was pushed six feet across the floor and in the opposite direction from the work bench. Claimant had sustained burns on his face, neck and arms. A co-employee made a telephone call to the 911 telephone dispatcher. Claimant was rushed to the Burlington Medical Center and then later the same day, he was transported to the burn unit at the University of Iowa. In the burn unit, Gerald P. Kealey, M.D., treated claimant. The hospital records indicate claimant was burned on 13 percent - 14 percent of his body. The physician's clinical note of May 31, 1989 summarized some of the treatments which claimant had to endure. Dr. Kealey indicated: Laboratory studies are now within normal limits except for hemoglobin 8.0 gm/dl and hematocrit 24%. This individual involved himself in an electrical contact flash injury seven days ago. He was immediately brought to the Burn Treatment Center and resuscitated. He had an obvious full thickness burn wound over the proximal hand and flexor retinaculum of the left wrist. Because of this he was seen in consultation with the Plastic and Reconstructive Surgery Service. The partial thickness and full thickness injuries on the right and left forearm were also accounted for. He was taken to the operating room on 5-30-89 at which time under general anesthesia tangential excision and grafting of the right forearm and small areas of the right hand were performed. Tangential excision and grafting of the left forearm was performed. Dr. Cram of the Plastic and Reconstructive Surgery Division fashioned a radial forearm flap to cover the flexor retinaculum and flexor tendons of the left forearm. This procedure went in a satisfactory manner. Today the flap is pink. The skin grafts are in good position and his donor sites are in reasonable condition. Situation: stable. Prognosis: good. (Exhibit 4) In 1991, Dr. Kealey evaluated claimant for purposes of rendering a permanent partial impairment. He noted the following in relevant portion: Initially I will address the problems associated with your skin graft and radial forearm free-flap which were necessary for the coverage of your burn wounds on your upper extremities. At this time your symptoms have been stable for the last year. You state that you have bothered by [sic] cold exposure, especially over the left radial forearm free-flap, and you say you must protect both your forearms and your donor site on your left thigh from direct sunlight as they sunburn very Page 3 easily, and they will not pigment properly. You state that you have poor sensation of your wounds, and you have suffered injury which you were unaware of until you noticed the bleeding rather than having protective sensation of the areas that were grafted on your forearms. This is important as you are on Coumadin for the rest of your life, and this anti-coagulation has decreased the ability of your blood to clot and it can become quite troublesome when you have an accidental injury which you are unaware of. You also state that exposure of the grafted areas to harsh soaps, chemicals and petroleum product solvents result in irritation, dryness and flaking necessitating the use of skin emollients or lotions frequently and protection clothing during the hot and cold weather months. On physical examination you have decreased sensation over the grafted areas on the right forearm, and over the left forearm (especially the left radial forearm free-flap) You have full range of motion, with good grasp, strength and function of the hands, wrists, elbows, and shoulders of the upper extremities. Your dexterity using the Nine Hole Peg Test and the Minnesota Rate of Manipulation Test is within normal limits. In short, you have a well-healed injury of which the symptoms cannot be expected to improve over change [sic] over time. Your complaints of decreased sensitivity and sensation, and casual injury due to unnoticed trauma are quite consistent with your type of injury and grafting that was necessary to repair them. The following test was used to establish your whole man disability. It is: Guides to the Evaluation of Permanent Impairment, 3rd Edition, revised. The Committee on Medical Rating of Physical Impairment, The Board of Trustees of the American Medical Association, 1984. I would place you in Class One impairment of your skin. A patient belongs in Class One when signs and symptoms of a skin disorder are present, and with treatment there is no limitation or minimal limitation in the performance of the activities of daily living although exposure to certain physical or chemical agents may increase limitations temporarily. I would assign you a 5% wholeman [sic] disability on the basis of your skin problems. You have chronic ongoing needs for protection from chemicals, trauma and sunlight. You have decreased sensation and you are susceptible to injury. You need to have protective clothing, protecting sun block and skin emollients for the rest of your life. (Exs. 16 & 17) While claimant was in the burn unit, he began to experience difficulties with blood clots in his lower extremities. His legs Page 4 had been the donor sites for his skin grafts. He developed right calf deep venous thrombosis. He had had a previous history of deep venous thrombosis. The patient was treated with 2.5 mgs. of Coumadin and then he was discharged from the University of Iowa Hospitals. Claimant returned to Burlington. However, he developed a swollen left calf and difficulties breathing. He sought treatment at the Burlington Medical Center. He was diagnosed as having: DISCHARGE DIAGNOSIS: 1. Deep venous thrombosis, left leg. 2. Large pulmonary embolus to the right lung. 3. Status post burn wounds to the upper extremities. 4. Depression, secondary to physical disorder. (Ex. 11) Because of his serious condition, he was transferred to the University of Iowa. He was treated for deep venous thrombosis. Coumadin was continued. Then claimant developed adrenal hemorrhages because of ongoing anticoagulation with Coumadin and because of intercurrent stress. Claimant developed Addison's disease. John H. MacIndoe, M.D., began to treat claimant. The physician opined the following relative to claimant's condition: As you know, he suffers from permanent and total adrenal insufficiency as a result of a bilateral adrenal hemorrhage that occurred in conjunction with his electrical accident and subsequent deep vein thromboses. The proper treatment of this disorder is associated with a normal life span. Furthermore, it should not limit his ability to under [sic] physical or emotional stress. He does seem to have an acute awareness of his body and minor changes that he is concerned might be due to his glucocorticoid therapy. I am happy to reassure him when these issues arise, but I can't help wondering whether his concerns are some type of reaction to his rather serious and prolonged medical problems. He should continue taking daily doses of hydrocortisone and mineralocorticoid (Florinef). He knows to increase the doses of the glucocorticoid preparation during periods of physical and emotional stress. I will continue to follow him as long as he wishes for this disorder and I have been quite pleased at his progress to date. (Ex. A, attachment page 8) In his deposition, Dr. MacIndoe described Addison's disease as: A. Addison's disease refers to the complete loss of adrenal gland tissue. Resulting impairment is a loss Page 5 of the ability to make several hormones, the most important of which is something called cortisol, frequently referred to in the lay terms as cortisone. Q. When an individual has the complete loss of their adrenal glands, what are the effects that one could experience? A. In the absence of replacing those hormones, death is almost inevitable. Q. Would it be fair to state there are different levels of complications that can result from the loss of the adrenal glands as a result of Addison's disease? A. With the complete loss and the complete lack of replacement, there may be several intervening stages between the incident and death, but death again is inevitable. I can't think of a protracted illness that goes on indefinitely that doesn't result in death, unless there is some adrenal tissue present. Another way of saying it, is cortisone is an essential for life. Q. And in terms of intervention in order to compensate for Addison's disease, what is the course of treatment that is followed? A. Course of treatment is usually the replacement of the cortisone by mouth or with an oral tablet and usually the replacement is given in two different doses; a dose twice as strong in the morning -- it is given twice a day, the morning dose being twice as strong as the evening dose. A total amount of cortisone given by mouth is approximately equal by that made by the adrenal glands each day in a nonstress condition. (Ex. A, p. 4, line 12 - p. 5, line 17) Since the onset of his Addison's disease, claimant has engaged in hormone therapy. He is required to take hydracortisone two times daily as well as florinef once per day. Dr. MacIndoe has indicated the hormone therapy will be for the duration of claimant's life or else claimant will die. Claimant is not restricted from engaging in welding activities so long as he does not work under undue stress. He is to avoid the increased risk of falling, bruising, or breaking bones (Ex. A, p. 16). There are no physical limitations (Ex. A, p. 16). However, claimant, as of 1992, is restricted from welding in confined spaces (Ex. A, attachment p. 21). The rationale for restricting claimant from working in confined spaces is that exposure to high levels of toxins can upset the balance the medication has established (Ex. A, p. 22). Dr. MacIndoe has also advised claimant to avoid situations which produce chronic anxiety (Ex. A, attachment p. 22). Following his work injury, claimant also treated with several other specialists. He sought treatment from Mark L. Page 6 Woodard, D.O., a cardiologist. Dr. Woodard made several recommendations relative to claimant's employment. He recommended: I note that you have received a letter from Dr. McFarlane from Hematology/Oncology at University Hospitals. They recommended in March of 1991 that the patient should seek employment that does not include prolonged standing. In talking to the patient, it sounds like he could do his current job if he could just sit down for the majority of the time, while he does his job; he thinks he could probably work that out with your cooperation. I think at this point that it would be a very worthwhile decision. It might prevent a lot of problems in the long run. Regarding the immediate concern, we will start him on a local anti-infective agent and will give him a brief course of antibiotics. If you have any questions, please let me know. I think that things could be worked out with the patient to the benefit of both you and him, in terms of his long--term productivity. (Ex. 19) Claimant treated with John D. Corson, M.D., Chief of Vascular Surgery at the University of Iowa Hospitals and Clinics. Dr. Corson prescribed compression stockings for claimant. Claimant is to wear these at all times (Ex. 20). Claimant is to elevate his legs whenever possible (Ex. 21). Dr. MacIndoe has testified there is no impairment based upon physical criteria (Ex. A, p. 22). However, the endocrinologist has provided an impairment rating relative to claimant's condition. In his report of March 13, 1991, Dr. MacIndoe opined: We have overwhelming evidence that Mr. Crable's primary adrenal insufficiency is the result of bilateral adrenal hemorrhage which, in turn, resulted from a combined state of stress and anti-coagulation. The anti-coagulation was begun subsequent to a deep vein thrombosis which appeared to result from a rather prolonged surgery to repair electrical burns sustained during an accident at work. The patient has absolutely no adrenocortical function and his continued health depends upon him receiving adequate daily doses of glucocorticoid and mineralocorticoid. Although the dosage of both of these medications is fairly constant under normal conditions of work, physical health, and emotional stress, major changes in physical or emotional stress can lead to substantial changes in his medication requirements. A failure to meet those requirements is likely to produce symptoms of severe adrenal crisis associated with potentially life-threatening hyponatremia, hyperkalemia, and shock. Excessive therapy will result in the signs and symptoms of hyper-gluococorticoidism characterized by weight gain, hypertension, poor wound healing, and severe Page 7 progressive osteoporosis. The potential life-threatening complications of this disorder and the need to maintain a delicate balance between excessive and deficient hormone replacement, I would estimate his percent impairment at approximately 65% [in reaching this assessment I have utilized the tabulated criteria for hypoadrenacorticoidism found on page 217 of Guides to the Evaluation of Permanent Impairment, 3rd Edition (revised), 1971]. In order to maintain appropriate monitoring and therapy of his adrenocorticoid insufficiency, Mr. Crable should be followed by a board certified endocrinologist with experience in adrenal diseases, will require daily oral cortisone and mineralocorticoid (Florin-f) therapy, and frequent laboratory testing of serum electrolyte values. It is likely that he will suffer multiple episodes of adrenocorticoid insufficiency due to unexpected trauma, illness, or other types of stress. These will require emergency treatment facilities and medications. Mr. Crable has also sustained at least two major episodes of lower extremity deep vein thrombosis. Each episode was associated with the life-threatening complication of pulmonary embolism. Although a single episode of this may be managed with temporary anticoagulant (Coumadin) therapy. A recurrence dictates that he be maintained on anticoagulant therapy for life. Again, the dosage of Coumadin necessary to achieve this is likely to vary over time and with changing conditions of health. Even with careful monitoring there is a 8-10% annual incidence of complication due strictly to the use of this medication. Thus, given his normal life expectancy, there is a significant risk of unwanted bleeding from this medication. Given these circumstances I would estimate the life-long impairment due to this problem is approximately 10%. In order to maintain adequate levels of anticoagulation the patient will require oral Coumadin on a daily or every-other-day basis for the rest of his life, frequent (at least monthly) laboratory tests of blood coagulation, and liver function. The patient will also require the use of thigh high antiembolism stockings to minimize furthering his chances of recurrent deep vein thrombosis. In the event of an unexpected episode of bleeding, the patient will need access to emergency treatment facilities, a variety of medical testing procedures, and possibly parenteral fluids including blood products. Unexpected hemorrhages into vital organs and/or joints can result in further permanent medical disabilities depending on the site and severity of the problem. (Ex. A, attachments 10 & 11) At the time of the hearing claimant was working for this Page 8 defendant. Since his return to work he has been working in the special shop area where he is often asked to perform precision welding. He wears personal protective equipment including glasses; a hard hat; ear plugs; and safety shoes. In addition to precision welding, claimant is also asked to perform some janitorial functions and to assist in the supply room. Claimant testified that after prolonged standing, his legs swell and then they ache. Claimant indicated he develops ulcers on his feet as a result of his circulatory problems. Every day he wears his compression stockings to work. He remarked to this deputy that he is able to stand for one hour and then he must sit and rest. Claimant testified there are jobs within the shop where he is required to stand in order to complete the assigned tasks. He indicated there are jobs which cannot be performed in the sitting position. He reported he does the best job he can do, but he is fearful he will re-injure himself. He is fearful he will lose this job, although there is no factual basis in the record to support his fear. Claimant works 40 hours per week but if over time is offered, he generally takes it. He earns slightly more now than he did on the date of the work injury. At the time of the hearing, claimant was earning approximately $11.15 per hour. CONCLUSIONS OF LAW The burden of proof is on the party asserting the affirmative of an issue on an administrative proceeding; "on the party who would suffer a loss if the issues were not established." Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norlan v. Ides, 412 N.W.2d 904 (Iowa 1987). 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 Page 9 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. Even though claimant's actual earnings have not been diminished, he has sustained a loss of earning capacity. A showing that there has been no loss of actual earnings does not preclude a finding of industrial disability. Michael v. Harrison County, 34th Biennial Report of the Iowa Industrial Commissioner 218 (1979). However, industrial disability does not equal or exceed the physical impairment ratings which are offered as evidence. Impairment ratings are only one factor in determining industrial disability. Collier v. Sioux City Community School District, File No. 953453, (App. Dec., February 25, 1994). There are several factors in the present case which show claimant has an industrial disability. There are restrictions which have been imposed upon claimant. He is no longer allowed to weld within confined spaces. Such an environment places undue stress on him. Claimant must alternate standing and sitting. Prolonged standing negatively impacts upon claimant's physical condition. He is required to wear compression stockings at all times. He has been besieged by ulcers on his feet. Despite the presence of the ulcers, claimant has been able to work his regular schedule. Claimant is currently a welder. Many welding jobs require the worker to stand in order to complete the task. Since claimant is to refrain from prolonged standing, he is precluded from performing many welding tasks. This, in turn, makes Page 10 claimant less marketable. He is not now as attractive an employee as he once was. His capacity for earnings has been reduced. Claimant is fortunate his employer has accommodated him in the workplace. It is doubtful whether another employer would make as many accommodations as this employer has done. Defendant-employer is to be commended for the excellent job the company officials have done in placing claimant back into the workplace. The defendants are to be commended. This deputy was impressed with their efforts. Claimant is also to avoid chemicals and solvents in the workplace. These too may place undue stress on him and result in adrenal crisis. He must be selective in choosing an environment which will not aggravate his breathing, upset his hormonal balance or place him in adrenal crisis. Certain work environments are now unavailable to him. Claimant is to use the utmost care when monitoring his hydrocortisone. He will remain on this external medication for the duration of his life. The necessity of continued use of hormones exposes claimant to potential problems such as diabetes or loss of bone. It is important for him to strike a balance in his hormonal levels. Likewise, the necessity of continued use of Coumadin also exposes claimant to increased likelihood of ancillary problems. Claimant must avoid situations where he will cut or bruise himself. He is precluded from taking another type of welding job. Therefore, after reviewing all of the evidence; after having heard the testimony; and after having observed the witnesses, it is the determination of the undersigned deputy industrial commissioner that claimant is entitled to a 50 percent permanent partial disability. Claimant is entitled to 250 weeks of permanent partial disability benefits at the stipulated rate of $284.00 per week commencing on January 2, 1990. Page 11 ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the stipulated rate of two hundred eighty-four and no/l00 dollars ($284.00) per week commencing on January 2, 1990. Defendants shall take credit for all permanent partial disability benefits previously paid to claimant. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year. 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 3.1. Signed and filed this ____ day of July, 1994. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven J. Crowley Attorney at Law PO Box 945 6th Flr Burlington Bldg Burlington IA 52601 Mr. John E. Swanson Attorney at Law 8th Flr Fleming Bldg 218 6th Ave Des Moines IA 50309 1800 Filed July 29, 1994 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHRIS CRABLE, Claimant, vs. File No. 917787 MODERN WELDING CO., INC., A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION (AGI), Insurance Carrier, Defendants. ___________________________________________________________ 1800 Claimant was awarded a 50 percent permanent partial disability as a result of an electrical burn which he sustained while he was working. Claimant received burns on his forearms, neck, and face. Claimant received treatment from the burn unit at the University of Iowa Hospitals and Clinics. The surgeons performed skin grafts from claimant's thighs to his forearms. While claimant was in the hospital, he developed certain blood clots in his legs. He was placed on Coumadin. Also while he remained in the hospital, claimant developed adrenal crisis. His adrenal gland was destroyed as a result of the shock of the injury and as a result of the continued use of Coumadin. Certain external medications were prescribed for claimant for the duration of his life. The endocrinologist testified that if claimant failed to take the requisite hormonal medication, death was imminent. Claimant eventually returned to work at defendant's welding shop where he had been employed as a welder. Defendant-employer was engaged in the manufacture of underground storage tanks. Claimant was precluded from welding in confined spaces. He was also advised to alternate sitting with standing, as standing aggravated claimant's vascular condition. Claimant was required to wear compression stockings at all times. Claimant had been working with ulcers on his feet. He was precluded from working near chemicals and solvents. His physician opined that solvents and chemicals could place undue stress on claimant and he could develop adrenal crisis. Claimant sustained no actual loss of earnings. However, he had sustained a loss of his earning capacity since many welding jobs were no longer available to him. Held: Claimant was awarded a 50 percent permanent partial disability.