Page 1 before the iowa industrial commissioner ____________________________________________________________ : DARLENE HUNT, : : Claimant, : : vs. : : File No. 921048 EVEREADY BATTERY CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Darlene Hunt, (claimant) commenced with the filing of a petition on October 9, 1989 against Eveready Battery Co., (employer) and Aetna Casualty & Surety Co.,(Aetna), (collectively defendants) Eveready's insurer for worker's compensation benefits as a result of an alleged injury to claimant's back occurring on January 19, 1989. On January 3, 1991, the matter came on for hearing in Council Bluffs, Iowa. The parties appeared as follows: the claimant in person and by her counsel Sheldon Gallner of Council Bluffs, Iowa and Eveready and Aetna by their counsel Thomas M. Plaza of Sioux City, Iowa. The record in this proceeding consisted of the following: 1. The testimony of the claimant, and the testimony of Tracy Kuhn on behalf of the claimant. Diane Bailey Weaver testified on behalf of Eveready. 2. Joint exhibits 1-80, 82-87 and claimant's exhibit 88. At the close of all evidence, the case was deemed fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and the employer at the time of the injury. That the claimant sustained an injury on January 19, 1989 which arose out of an in the course of employment. Page 2 The injury caused a temporary disability during the period of recovery. The claimant's time off work for which claimant now seeks either temporary total disability or healing period benefits is as follows: January 20, 1989, February 2, 1989, February 3, 1989 and February 6, 1989 to September 6, 1990. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. Claimant's rate of weekly compensation is stipulated to be $221.30. The claimant's gross weekly earnings are $365.20. Claimant is single. She is entitled to one exemption. The fees charged for medical services are fair and reasonable and the expenses were incurred for reasonable and necessary medical treatment. The amount of a credit for the payment of medical benefits under a non-occupational group plan is $858.60. That amount of credit for the benefits paid to claimant totals 100 1/7 weeks through December 28, 1990 plus benefits paid to the date of this decision. There are no bifurcated claims. issues 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed industrial disability and the nature and extent of any entitlement to benefits. 2. Whether claimant is entitled to medical benefits including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. 3. The extent and assessment of costs for the action. Preliminary Matters After the record was closed in this matter, claimant filed an application for a nunc pro tunc order to include another exhibit regarding a medical bill from Dr. Bowman in the amount of $1,027.60. No resistance to the application was filed by defendants. Rule 343 IAC 4.31 is unequivocal in its language. It provides that no evidence shall be taken after the hearing. Consequently, the evidence will not be received into evidence pursuant to rule 343 IAC 4.31 and the application is denied. Secondly, scattered throughout the medical evidence submitted in this matter, there are references to pain that Page 3 claimant was experiencing in her right wrist. The eventual diagnosis of claimant's discomfort was carpal tunnel syndrome. This injury is not part of the dispute in this case and any references made to the carpal tunnel condition in this decision have no bearing on any later claims the claimant may make in regard to this injury. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 46 years old, divorced mother of three grown children. Claimant left school after she completed the 9th grade. However, she obtained her GED in 1986 as part of a personal program to obtain further education. Claimant lives in Red Oak, Iowa. 2. After claimant left school, claimant got married and worked at the Gold Crown Inn for several years. While she raised her family, claimant and her former husband farmed. She assisted with the farm operation, tended a large vegetable garden, a rose garden and she raised chickens. After claimant was divorced, she accepted employment as a waitress at the local Holiday Inn. Eventually, claimant was promoted to Dining Room Manager and Sales Representative arranging parties and banquets. Claimant worked for Holiday Inn for 14 years. She left when the hotel came under new management. At the time she left in 1984, claimant was making approximately $200.00 per week. 3. Claimant's next employment was for the Sheraton Inn in Springfield, Missouri as the Banquet Director. Claimant was responsible for managing the food service and she was a bar tender. Claimant earned approximately $250.00 per week plus tips. In 1986, claimant decided to return to the Omaha area and she took a job with the Holiday Inn in Omaha. She was hired as the Dining Room Manager and Food Service Director. Her job duties were not substantially different from the duties she had while working in Springfield. She was responsible for planning, setting up and serving at banquets. Claimant's wage at the Holiday Inn was $225.00. She worked in this capacity for one year until she returned to Red Oak for personal reasons. 4. Upon her return to Red Oak, claimant was employed by Quality Furniture Store. Claimant's duties included appraising, buying, refinishing and selling both new and used furniture. Claimant was also responsible for payroll, doing basic bookkeeping and banking. Claimant was paid approximately $200.00 per week plus an occasional sales commission. 5. Claimant left her employment with Quality Furniture Store to accept employment with Eveready Battery Co. in July of 1988. Claimant was hired as a visual inspector. Claimant's job duties required her to inspect finished battery cases for imperfections and remove those cases which did not meet the production standards. This job, like the Page 4 jobs that claimant had held all her life was not physically strenuous. Additionally, claimant volunteered for overtime work which included painting and substituting for other workers on the production line. 6. Before claimant started with Eveready she had no relevant medical history to speak of. Claimant had no prior problems with her back and had never been treated for any back condition. 7. In December of 1988, Eveready eliminated claimant's position. Claimant was given the opportunity to bid onto a production line. Claimant bid onto the body maker line and became a body maker tender. Claimant was primarily responsible for lubricating, starting and operating the assigned machines during the shift, cleaning the machines and sweeping the area as required, clearing minor jams, feeding blanks into the assigned machines from trays or boxes, performing quality checks and recording data, supplying empty boxes, removing full boxes, buffing out burrs on tracks and rails that could cause scratches and emptying chip trays. Claimant's job required her to twist, bend, stoop, and pull either metal blanks, finished battery bodies or jammed blanks as these items went in and out of the bodymaker machines. Additionally, claimant was required to lift boxes of metal blanks weighing approximately 35 pounds. She lifted 5 of these boxes an hour to keep the machine supplied. Claimant's job required repetitive movements of her back. 8. On January 19, 1989, while at work, claimant bent down at her work station and felt a sharp pain in her back. Claimant finished her shift but then went to see her family doctor, Dr. Artherholt. Dr. Artherholt felt claimant had sprained her back. He referred claimant for physical therapy. He recommended that she return to her job for three days on light duty. Claimant returned to work in a light duty position on January 23, 1989. Dr. Artherholt continued to treat claimant for her back pain while she was assigned light duty work. After claimant had been on light duty, for about a week, a supervisor came to her and asked her to fill in on a production line. Claimant obliged and while on duty on February 1, 1989, she bent over to pick up a chunk of wax that weighed approximately 12 pounds and had a sudden onset of increased low back pain. Claimant left work on February 1, 1989 due to pain. Claimant saw the plant physician, Dr. Reagan, on February 3, 1989 and then saw Dr. Artherholt on February 6, 1989. Claimant had pain in the right lumbosacral area on the left, radiating to the right, posterior, upper thigh and a little bit to the right lower quadrant of the abdomen. Claimant was also continuing her physical therapy. She reported the reinjury to the therapist during the time period between February 3, 1989 and February 6, 1989. On February 6, 1989 claimant's physical therapy was discontinued. 9. On February 6, 1989, Eveready announced a reduction in force due to business conditions of approximately 18 employees. Claimant was among the group of employees subject to this layoff. In order to select the employees Page 5 that would be laid off, the employees with the same service dates drew cards. Claimant apparently drew the right card and remained employed but off work due to an injury. 10. On February 7, 1989, claimant had a lumbar CT scan that showed a mild accentuation of the lordotic lumbar curve, a mild bulging of the L5-S1 disc and an L5 pars defect. The CT scan was ordered by Dr. Reagan and Dr. Artherholt. 11. On February 13, 1989, Aetna advised claimant's counsel that it would authorize claimant to see Doctors Reagan, Artherholt, Estes, a neurosurgeon, Fruin, a neurosurgeon or Taylon for the treatment of her back. Aetna also advised that should claimant want to change medical providers, she needed to make the request in writing and Aetna would consider the request. Claimant was advised not to obtain medical care without Aetna's approval. 12. Dr. Estes examined claimant on February 21, 1989. He also found that she had a demonstrated pars defect. This structural anomaly accounts for the production and exacerbation of back pain subsequent to repetitive maneuvers which involve lifting. His diagnosis of her condition was musculoskeletal back pain with a coexistent spondylolisthesis of the pars innerartiuclar of the L5-S1 complex. The radiographic studies reviewed by Dr. Estes revealed that claimant had an old fracture that was most likely caused by degeneration of the joints connecting the fifth lumbar vertebra. Dr. Estes also concluded that claimant's condition predisposed claimant to mechanical back pain subsequent to strenuous physical activity such as repetitive lifting and bending. Claimant's current episode of pain was caused by claimant's work but did not cause the fracture to the nearby joints. Dr. Estes also determined that claimant's future employment should be tailored to her predisposition and the she should not lift anything heavier than 20 pounds in a repetitive fashion. She also needed to avoid stairs and prolonged sitting and standing for the near term. Thereafter, Dr. Estes recommended strict bed rest for three weeks and a course of medication. 13. Claimant's pain did not abate even though claimant apparently followed Dr. Estes's recommendations regarding bed rest and the medication he had prescribed. On March 16, 1989, claimant returned to see Dr. Estes and her pain had not improved. Dr. Estes next ordered an EMG study from Dr. Len Weber. The EMG study was normal for her back. Claimant was seen again by Dr. Estes and he prescribed physical therapy and a change in medication to Valium and Feldene. Claimant was also asked to obtain flexion and extension lumbar spine films. 14. At this juncture in her treatment, claimant was unhappy with her course of treatment from Dr. Estes. She believed that the bed rest he had prescribed was unnecessary and she refused to take the Valium. In a terse reply to claimant's counsel, Dr. Estes described the course of treatment that had been recommended to claimant. The response indicates that claimant was seeking more aggressive Page 6 and invasive testing than Dr. Estes felt was necessary to reduce claimant's symptoms. The debate appeared to center around whether claimant had a defined disc problem with resulting pressure on the nerves going into her legs or a problem with the bones in her back. Dr. Estes felt that the complaints of pain were not attributable to the bulging disc but rather stemmed from the pars defect aggravated by her work activities. Dr. Estes determined that claimant was suffering from spondylolisthesis and he suggested that he refer claimant on to an orthopedic surgeon for a second opinion since a bone abnormality falls within the specialty of an orthopedic surgeon rather than a neurological surgeon. 15. On May 2, 1989, Dr. Estes saw claimant for the last time. He examined her and noted that there had been no improvement. He concluded by indicating that he felt conservative treatment was the appropriate course of action to treat claimant's back. Dr. Estes then referred claimant to Dr. Bowman, an orthopedist, for further treatment. Eveready received a copy of these progress notes and had notice of the referral to Dr. Bowman. Additionally, Dr. Estes progress notes indicate that Dr. Bowman and Dr. Reagan received copies of this report. 16. On May 5, 1989, Aetna again advised claimant through her attorney that it would not pay for unauthorized care. Aetna further indicated that it felt that since there were other doctors available to claimant within the authorized group, she could continue to be treated by any of those doctors. 17. Claimant was seen by Dr. Bowman on May 15, 1989. At the conclusion of the examination, Dr. Bowman concluded that claimant was suffering from spondylolysis at L5 and chronic lumbar strain with radiculopathy. Dr. Bowman also recommended conservative treatment. He recommended an epidural steroid injection, an aerobic spine fitness program, medication and a fabricated lumbar support. He also recommended that claimant return to school. Dr. Bowman also provided claimant with a continuing restriction from work dependant upon claimant's response to the conservative treatment. 18. On June 16, 1989, Eveready announced another reduction in force. This time claimant was among the group of employees laid off. In the event of a recall, claimant would be the second person called back with her service date. 19. Throughout the summer, claimant followed the conservative course of treatment suggested by Dr. Bowman. On July 25, 1989, Dr. Bowman indicated that claimant's old job would not fit within her safe limitations. However, Dr. Bowman did indicate that factory work per se would not be excluded from claimant's safe zone. On August 8, 1989, claimant requested surgery. Dr. Bowman indicated that this was an elective procedure involving quality of life issues. The surgery was not necessary to correct a problem with claimant's spinal chord. There was no emergency associated with this surgery. Claimant felt that she had not benefited Page 7 from the conservative course of treatment. Dr. Bowman proposed a bone mass fusion with the attendant procedures to complete the fusion. 20. Dr. Bowman wrote to Aetna on August 8, 1989 to advise that claimant had requested surgery. Dr. Bowman reported that claimant had severe exacerbation of her symptoms when she tried to increase her level of activity. Dr. Bowman indicated that he would cooperate if Aetna wanted to get a second opinion. Additionally, he predicted that a vocational disposition could not be made until claimant was 6 months from the surgery date. 21. On August 21, 1989, Aetna wrote to claimant's counsel and indicated that it wanted claimant to be evaluated at Mayo Clinic in accordance with Dr. Bowman's suggestion that a second opinion be obtained. The evaluation at Mayo Clinic was scheduled for mid October. With this letter, Aetna advised claimant that since the surgery was elective it would not pay for the surgery that claimant had scheduled on September 5, 1989. 22. On August 26, 1989, Dr. Bowman indicated to Aetna that surgical intervention is warranted when a patient has a progressive slip or where the condition has not responded to a course of conservative treatment. Dr. Bowman indicated that the surgery was not mandatory but a legitimate option given claimant's current symptoms and treatment history. Finally, Dr. Bowman indicated that the cause of claimant's problem was linked to her job. Generally, a spondylolisthesis is totally asymtomatic and becomes disabling as a result of an injury which then results in chronic, intractable symptoms. While the defect was pre-existing, the disability that the claimant suffers from day to day was a result of the work injury. 23. On September 6, 1989, Dr. Bowman performed a Gill procedure, L-5, Edwards instrumentation,(spondylolisthesis), lateral mass fusion, bilateral, L5-S1 and insertion of bone stimulator on claimant. 24. In January of 1990, claimant began a course of daily physical reconditioning with Midwest Rehabilitation Services in Omaha. Additionally, Aetna retained Rehabilitation Professionals, Inc., to provided vocational services for the claimant and to coordinate medical services with Dr. Bowman's office and with Midwest Rehabilitation Clinic. The vocational rehabilitation specialist found claimant to be highly motivated and proud of her achievements. During the first part of January 1990, claimant began attending classes through the Iowa Southwest Community College Extension Campus at Red Oak. She intends to get an associate degree and would like to get a four year degree. After claimant finishes her schooling, she wants to get a job in sales or in public relations where she can use her skill in working with the public. As claimant began her rehabilitation, she was still in a lay off status with Eveready subject to recall. 25. Claimant attended the physical conditioning program Page 8 with Midwest Rehabilitation regularly until February 23, 1990. On that date she was given a functional capacity assessment. This assessment demonstrated that claimant was capable of light to sedentary work with a lifting restriction of around 22 pounds. The rehabilitation specialist felt that with further reconditioning, claimant's overall functioning would improve. At this juncture in her recovery, the vocational specialist recommended that claimant continue with the work hardening program at Midwest Rehabilitation and attend sessions twice a week. 26. After February 23, 1990, claimant did not return to Midwest Rehabilitation. She went to school and participated in a home exercise program that included a spa membership. In May of 1990, claimant expressed an interest in returning to Midwest Rehabilitation but she could not go unless she was reimbursed for mileage by Aetna. Even after the mileage reimbursements had been arranged, claimant did not return to Midwest Rehabilitation. 27. On May 25, 1990, claimant was seen by Dr. Len Weber, one of her initial treating physicians, for an independent medical evaluation. The examination and the report were very thorough. Dr. Weber found that claimant had bilateral spondylolysis of L5, with grade I spondylolisthesis at L5 on S1 becoming symptomatic with job activities around December of 1988. Additionally he found that the treatment of claimant's condition had been a surgical fusion at L5-S1. Lastly, in connection with claimant's back, Dr. Weber found that claimant still had persistent low back discomfort, a residual of the injury and the surgery. Dr. Weber recommended that claimant lift no more than 20 pounds frequently or 40 pounds occasionally, with all lifting done out of a squat rather than a bent forward position. Claimant must also avoid repetitive flexion or extension movements of the back as much as possible. Based upon Dr. Weber's findings and using the AMA Guides, third edition, he assigned a 12 percent whole person impairment to claimant. This rating was specifically for a fusion for spondylolysis and spondylolisthesis at a single level with residual symptoms of back discomfort. Dr. Weber also concluded that the surgical procedure used by Dr. Bowman was appropriate given claimant's failure to respond to conservative treatment over a nine month period and her subsequent(but partial) improvement after surgery. 28. On July 9, 1990, Dr. Bowman indicated that claimant had a 20 percent impairment of the body as a whole based on the AMA guides second edition. Dr. Bowman indicated that the Guide rates a Pars defect with a grade one slip as having a 20 percent impairment. In August, 1990, Dr. Bowman again felt that claimant had a 20 percent impairment and that her limitations and restrictions as outlined in the functional capacity evaluation performed in February was an accurate assessment of claimant's capacities and limitations. 29. Dr. Weber examined claimant again on November 2, 1990 for a follow up evaluation. Dr. Weber found that there had been no change in claimant's condition between the first Page 9 examination he performed on May 25, 1990 and the November examination. He also believed that claimant had reached maximum medical improvement at the time of the first examination, on May 25, 1990. Dr. Weber also reconfirmed his impairment rating of 12 percent based upon the AMA Guide, third edition and claimant's restrictions and residual symptoms. In connection with the rating he provided the following explanation: Please note that I used the current third edition, not the second edition of the AMA Guides. The impairment rating was revised downward from 20 percent whole person impairment in the second edition (see page 57, Table 53) for grade I or grade II traumatic spondylolysis and spondylolisthesis, to 8% whole person impairment in the third edition (see page 73, table 49) for grade I or grade II unoperated spondylolysis and spondylolisthesis or 12 percent whole person impairment for operated single level spondylolisthesis with residual symptoms. I believe that the third edition rating is more in line with what impairment ratings are given for other back conditions causing similar symptoms. Since Dr. Weber used the more current AMA Guides, his impairment rating will be adopted as the correct rating. Additionally, since the AMA Guides third edition adopt only an 8 percent impairment for an unoperated spondylolysis and spondylolisthesis this impairment rating will be adopted as the correct rating for this condition. 29. The date that claimant reached maximum medical improvement has been a moving target throughout claimant's recuperation period. Dr. Weber believed that claimant had reached maximum improvement in May of 1990. Dr. Bowman gave an impairment rating in July of 1990 and then agreed that claimant had reached maximum medical improvement by August of 1990. More significantly, Dr. Bowman's impairment rating did not change between July and August. A review ofóDr. Bowman's records indicates that while Dr. Bowman thought that maximum healing would be reached in August, there was no change or improvement noted in the claimant's condition between May 18, 1990 and July 31, 1990. Based on the date that Dr. Bowman gave claimant her impairment rating, claimant's healing period ended on July 9, 1990. 30. Eveready attempted to recall claimant from her lay off status beginning on September 14, 1990. Eveready had an increase in sales and needed to temporarily call back 13 people. Claimant could not be reached. However, on September 17, 1990, Eveready contacted claimant and advised her that it would need an additional 20 people next week for temporary assignments at the plant. Claimant was advised that if she wanted to return, Eveready would need a list of her restrictions. The list of restrictions was not provided by claimant. On September 28, 1990, claimant was again contacted about returning to Eveready. Diane Weaver described the jobs that she had open and described the lifting associated with each job. Claimant had asked Dr. Bowman for the restriction list and she had not received it yet. Claimant attempted contact with Dr. Bowman but to no Page 10 avail. Claimant was able to reach her attorney. Claimant told Diane Weaver that her attorney had a report from Dr. Bowman that said she could not lift and could do no factory work. No such report was admitted into evidence and the only reference to factory work restrictions is contained in a letter dated July 25, 1989 and the possibility of factory work is not ruled out. Additionally, the functional capacity evaluation adopted by Dr. Bowman contains no such restrictions. Claimant indicated that she would not take any of the offered jobs but that if there was an opening in the office to please let her know. 31. Claimant has made minimal effort to find other employment since the offer of employment was made by Eveready. Job leads were provided to claimant at the end of November 1990 and claimant did not follow up on these leads until the days before the hearing on this matter. Claimant does however, maintain her status as a student at Southwestern Community College. The job leads provided to claimant were for positions in Council Bluffs and Omaha. The job market in Red Oak is limited. The jobs available provided a wage base of approximately $5.00 to $7.00 per hour. If claimant's average wage at these jobs is $6.00 per hour she would earn approximately $240 per week. While at Eveready, claimant earned $9.13 per hour or about $365 per week. 32. Claimant is seeking payment of the following medical expenses: 9-5-89 to 9-23-89 Bergan Mercy $800.00 Claimant is seeking payment of the following costs: VENDOR ITEM COST Creighton U. Medical Information $50.00 Dr. Bowman Report $50.00 Dr. Weber Report $15.00 Dr. Bowman Report $50.00 Dr. Bowman Med. Information $50.00 Ind. Commr. Filing Fee $65.00 Dr. Bowman Report $50.00 PMS Med. Records $30.45 Dr. Bowman Report $50.00 TOTAL: $410.45 Conclusions of law 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed industrial disability and the nature and extent of any entitlement to benefits. The parties have agreed that the claimant's injury arose out of and in the course of her employment. Claimant must next demonstrate by a preponderance of the evidence that the work related aggravation of her pre-existing back condition on January 19, 1989 is causally related to the disability on which she now bases her claim. Bodish v. Page 11 Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. Finally, the Supreme Court has consistently held that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 254 N.W. 35,38 (Iowa 1934); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 737 (Iowa 1968); Barz v. Oler, 133 N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service Stores, 125 N.W.2d 251, 256 (Iowa 1963); Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 (Iowa 1960). In this instance the causal connection to claimant's current disability was established by claimant's doctor, Dr. Bowman and the defendants' doctor, Dr. Weber. There is no evidence in the record that suggests that claimant's aggravation of a previously asymptomatic condition was caused by anything but her activities at work. The work injury resulted in a permanent functional impairment for the claimant that is compensable. Consequently, claimant has carried her burden on this point. The more difficult question in this dispute is the question of the extent of benefits claimant is entitled to as a result of her injury. Claimant urges that she entitled to an odd-lot designation which results in a finding of permanent total disability. Defendants urge that claimant is not an odd-lot employee and that she is capable of returning to the competitive labor market. Claimant has failed to sustain her burden of going forward to show that she is an odd-lot employee. However, claimant has demonstrated that she has suffered a loss in earning capacity and will be compensated accordingly. In examining the odd-lot question, there are two cases that offer guidance. In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985) the Supreme Court adopted the odd-lot doctrine. Under this doctrine, the Court found that a worker becomes an odd-lot employee when an injury makes Page 12 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. In Hainey v. Protein Blender, 445 N.W.2d 398, 400 (Iowa App. 1989), the Court of Appeals provided some explanation of the Guyton decision. Among other things, the court concluded that if a person has no reasonable prospect of steady employment, that individual has no prospect of material earning capacity. Additionally, this standard contemplates that the injured worker will take some affirmative action to either find employment or take other steps to improve the prospects for reemployment. If the injured worker remains unemployable even after this effort, then an odd-lot designation can be made. Guyton, 373 N.W.2d at 105, Hainey, 445 N.W.2d at 400. Such steps can include vocational rehabilitation or making a reasonable effort to obtain further training. Pyle v. Carstensen Freight Lines, Inc., File No. 753661, (Iowa Ind. Comm'r Appeal July 24, 1987).(claimant attempted to go to school but his heart pain prevented him from pursuing this option. Otherwise, he was unemployable). Ultimately, the application of the odd-lot doctrine involves an allocation of the burden of production of evidence. The Supreme Court found that the burden of persuasion on the issue of industrial disability always remains with the worker. If the evidence of the degree of obvious physical impairment coupled with other factors such as claimant's mental capacity, education, training or age place claimant prima facie in the odd-lot category, the burden then shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Guyton, 373 N.W.2d at 105; Hainey, 445 N.W.2d at 400. In this case, claimant has failed to meet the prima facie threshold that triggers application of the odd-lot designation. An examination of claimant's abilities after her back fusion demonstrates that claimant is not an odd lot employee. Claimant is 46, literate, with a GED and some advanced education. Claimant has sufficient skills in reading, math and interpersonal relationships and dynamics to work with the public in a variety of jobs. Moreover, claimant's training and experience demonstrates that she is capable of organizing an event, giving attention to detail and supervising other workers. Claimant has experience in handling money and performing payroll duties and rudimentary bookkeeping functions. Claimant's physical impairment certainly limits claimant's choices of employment in a factory setting and otherwise. However, even claimant's doctor indicated that all factory work per se would not be excluded from her limitations. The undisputed evidence in the record indicates that claimant is capable of returning to a light sedentary position right now in the food service industry or in a sales position in Omaha, Council Bluffs or Red Oak at a wage level comparable to what she was earning prior to her Page 13 employment with Eveready. This prospect suggests that claimant has a loss in earning capacity, but her combination of physical impairment, education, age, and training do not make her unemployable in the competitive labor market. Claimant has not made a reasonable effort to look for work within her restrictions to determine whether she is incapable of obtaining employment in any well known branch of the labor market. Making a first contact with potential employers a week before the hearing when claimant had been provided with job leads at least a month earlier does not demonstrate that claimant is incapable of being employed in a well known branch of the labor market. Moreover, even though Eveready made overtures to discuss with claimant a return to work within her restrictions, in September of 1990, claimant declined to pursue this alternative. Claimant has chosen to pursue an educational option at this juncture. This choice is laudable and will presumably enhance the eventual employability of the claimant. But the choice of this option alone will not support a finding of odd-lot employee. However, this conclusion does not foreclose the possibility that sometime in the future, even with additional education, claimant may discover that her employment options are substantially limited or nonexistent as a result of her back injury. At that point, she may ask to have her industrial disability reconsidered. Claimant has suffered a functional impairment to the body as a whole. With 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., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within her restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christening v. Hague, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). 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 the total, motivation five percent of the total, work experience thirty percent of the total etc. Neither does a rating of functional impairment directly correlate to the 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 to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior Page 14 experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christening, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. Several factors are pertinent in claimant's circumstances. Claimant is no longer able to perform the type of work she was doing at Eveready at the time of her injury. Moreover, claimant is foreclosed from doing jobs that require frequent stooping, bending, and lifting. Claimant cannot lift amounts repetitively in excess of 20 pounds. Claimant was earning $9.13 per hour at the time of her injury. The jobs identified for claimant by the vocational rehabilitation specialist pay between $5.00 and $7.00 per hour. Claimant's pay differential is approximately $3.13 per hour. At claimant's age, in the mid-forties, claimant is at the peak of her earning capacity. This makes claimant's loss more severe than it would be for a younger or older worker. Becke v. Turner-Busch Inc., 34 Biennial Report 34, 36(Iowa Ind. Comm'r Appeal 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426, 429 (1981); McCoy v. Donaldson Company, Inc., File Nos. 752670, 805300, Slip op. at 6 (Iowa Ind. Comm'r Appeal April 28, 1989). There is however, an excellent chance that claimant will be retrained as she is vigorously pursuing an advanced degree with the help of the Iowa State Vocational Rehabilitation program. Claimant has declined to return to Eveready even though Eveready offered to work with claimant to determine if there were jobs available with Eveready within claimant's restrictions. Claimant has not seriously looked for other work. Finally, claimant did not complete her course of work hardening in Omaha to maximize her functional capacity. Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 30 percent industrial disability. Claimant is also entitled to healing period benefits. Healing period benefits may be characterized as that period during which there is a reasonable expectation of improvement of a disabling condition and ends when maximum medical improvement is reached. Armstrong Tire and Rubber Co. v. Kubli, 312 N.W.2d 60, (Iowa Ct. App., 1981). In discussing the concept of healing period as contemplated by Iowa Code Section 85.34(1) (1991) the Kubli Court observed that recuperation refers to that condition in which healing is complete and the extent of the disability can be determined. Kubli, 312 N.W.2d at 65. The healing period generally terminates at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Kubli, 312 N.W.2d at 65. When a permanent rating is given, it indicates that the physician does not expect the claimant to improve and this conclusion meets the criteria of Iowa Code Section Page 15 85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984). The fact that a person continues to receive medical care does not indicate that the healing period continues. Medical treatment which is maintenance in nature often continues beyond that point when maximum medical recuperation has been accomplished. Medical treatment that anticipates improvement does not necessarily extend healing period particularly when the treatment does not in fact improve the condition. Tallman v. American Can Co., 1 Iowa Industrial Commissioner Decisions No.4 1115, 1120 (Appeal 1985); Derochie v. City of Sioux City, II Iowa Industrial Commissioner Report 112, 114 (1982). Claimant's healing period ended on July 9, 1990. On this date, Dr. Bowman advised both Eveready and claimant that she had a 20 percent functional impairment. Even though Dr. Bowman used the second edition of the AMA Guides, he believed that claimant had a measurable impairment on that date. More significantly, claimant's rating did not change between the July date and the August date urged by claimant. Consequently, claimant is entitled to healing period benefits for the dates of January 20, 1989, February 2, 1989, February 3, 1989 and from February 6, 1989 to July 9, 1990. The defendants have already paid claimant 100 1/7 weeks of benefits through December 28, 1990. Additionally, defendants have paid claimant benefits from the date of the hearing to the date of this decision. Defendants shall have a credit against all amounts awarded herein. 2. Whether claimant is entitled to medical benefits including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. The next issue for resolution involves claimant's entitlement to medical expenses. Under Iowa Code section 85.27 (1991) an employer has the responsibility to provide an injured worker with reasonable medical care and has the right to select the care the worker will receive. In order for the employer to be held responsible for claimant's medical expenses, claimant must show that the treatment sought was either of an emergency nature or was authorized. Templeton v. Little Giant Crane & Shovel, 1 State of Iowa Industrial Commissioner Decisions No. 3, 702, 704 (Iowa Ind. Comm'r Appeal 1985). An employee may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion. 2 Larson's Workmen's Compensation Law Section 61.12(g) (1990). However, even if the treatment is unauthorized a claimant may still recover if the treatment improves the claimant's condition and the treatment ultimately mitigates defendants' liability. Thomas v. Broadlawns Medical Center, File No. 81240, Slip op. at pp. 6-8 (Iowa Ind. Comm'r October 31, 1990); Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (1983); Rittgers v. United Parcel Page 16 Service, III Iowa Industrial Commissioner Report 210 (1982). The claimant has the burden of demonstrating that the medical services obtained were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). Based upon the analysis above, it is clear that claimant has established that her injury is the cause of a permanent disability. As a consequence, the necessary nexus has been established and Eveready must provide medical benefits to claimant pursuant to Iowa Code section 85.27 (1991). The question that remains is whether the medical care received by the claimant was authorized by Eveready. Immediately after claimant suffered her injury and before claimant's petition was filed, Aetna was very aggressive in taking control of claimant's care from the beginning of the case. Aetna gave claimant a choice of doctors and advised claimant through correspondence with her attorney who the authorized doctors were. Claimant was not satisfied with the care she was receiving from doctors designated by Aetna. Claimant asked for a referral to Dr. Bowman. Dr. Estes, one of the authorized physicians obliged thus establishing the necessary link from one authorized physician to the next. Carnes v. Sheaffer Eaton, No. 836644, Slip op. at 6 (Iowa Ind. Comm'r Arb. February 7, 1991); Munden v. Iowa Steel & Wire, 33 Iowa Industrial Commissioner Biennial Report 99, 100 (Arb. 1979). Consequently, Dr. Bowman was an authorized physician after the referral by Dr. Estes. The fighting issue is the authorization for the surgery that claimant had on September 5, 1989. Section 85.27 provides that the employer is entitled to direct the medical care of the claimant. As part of this privilege, the Code requires the employer to supply prompt, reasonable care. In exercising the right to direct a worker's medical care, the agency has found that the employer's desire to obtain a second opinion is not an unreasonable request as long as the request is made in a timely fashion. See, Martin v. Armour Dial, 2 Iowa Industrial commissioner Decisions No. 1 253, 258 (1985); Hensley v. Swift Independent Packing Co. 1 Iowa Industrial Commissioner Decision No. 4, 881, 885 (Iowa 1981). It should be noted that in both of these cases, the request for a second opinion was found to be unreasonable because the request came either within one or two days prior to scheduled surgery. While this authority is not binding, it is persuasive authority. This writer is persuaded by this view that the request for a second opinion is reasonable as long as the claimant's course of treatment is not disrupted unnecessarily and the employer has offered an appropriate alternative. In this instance, the request for a second opinion was reasonable and timely made. There was no emergency. Dr. Bowman indicated that the proposed surgery, scheduled for September 6, 1989 was elective. Moreover, Dr. Bowman invited a second opinion regarding the proposed surgery. Page 17 There was no suggestion that there would be any disruption in claimant's treatment. After Aetna had correspondence with Dr. Bowman, it advised claimant by letter dated August 21, 1989 through her attorney, that prior to her surgery, it wanted claimant to obtain a second opinion from Mayo Clinic. Aetna had set up a tentative appointment for claimant for some time in mid October. Aetna also advised in the letter dated August 21, 1989 that it would not authorize surgery at this time and that if claimant proceeded she did so at her peril. Claimant went ahead with the surgery anyway. As a result, claimant's back surgery was unauthorized, and the defendants are not liable for those costs including the hosptial chagres owed to Bergan Mercy and any amounts owed to Dr. Bowman. Nor is claimant saved by the argument that the surgery improved her condition, thus mitigating the liability of the defendants. In an unoperated state, claimant's back injury resulted in a functional impairment of 8 percent to the body as a whole. After the operation, claimant's back fusion resulted in a functional impairment of 12 percent to the body as a whole. Claimant continues to have low back pain. This evidence indicates that the surgery did not improve claimant's condition. 3. The extent and assessment of costs for the action. The final issue for resolution involves the extent and assessment of costs in this matter. Claimant urges that all of the following items should be assessed as costs in this dispute: VENDOR ITEM COST Creighton U. Medical Information $50.00 Dr. Bowman Report $50.00 Dr. Weber Report $15.00 Dr. Bowman Report $50.00 Dr. Bowman Med. Information $50.00 Ind. Commr. Filing Fee $65.00 Dr. Bowman Report $50.00 PMS Med. Records $30.45 Dr. Bowman Report $50.00 TOTAL: $410.45 In connection with the report limit included in this rule, hospital records are treated as practioners reports. Diede v. Contemporary Industries Corp., 2 Iowa Industrial Commissioner Decisions 492, 495 (Arb. 1985). Clearly, rule 343 IAC 4.33 does not allow all of these items to be assessed as costs. Claimant may seek payment. Consequently the costs of this action will be as follows: Filing Fee $65.00 Creighton U. Medical Information $50.00 Dr. Bowman Report $50.00 TOTAL: $165.00 These costs shall be assessed against the defendant. Page 18 Order THEREFORE, it is ordered: 1. Eveready and Aetna shall pay to claimant healing period benefits for the dates of January 20, 1989, February 2, 1989, February 3, 1989 and from February 6, 1989 to July 9, 1990 at the rate of two hundred and twenty-six and 30/100 dollars ($221.30). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Eveready and Aetna shall pay to claimant permanent partial disability benefits in the amount of thirty percent (30%) with payment commencing on July 10, 1990. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 3. Eveready and Aetna shall have a credit in the amount of one hundred and one-sevenths weeks (100 1/7) to December 28, 1990 against any amounts owed. Eveready and Aetna shall have a credit for weekly benefits paid from December 29, 1990 to the date of this decision. Additionally, Eveready and Aetna shall have a credit for eight hundred fifty-eight and 60/100 dollars ($858.60) for a medical bill paid by them. 4. Eveready and Aetna shall not be liable for any expenses associated with claimant's surgery to her back. 5. The costs of this action totaling one hundred sixty-five dollars ($165.00) shall be assessed Eveready and Aetna pursuant to rule 343 IAC 4.33. 6. Eveready and Aetna shall file claim activity reports as required by rule 343 IAC 3.1. Page 19 Signed and filed this ____ day of April, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sheldon M Gallner Attorney at Law 803 Third Avenue PO Box 1588 Council Bluffs Iowa 51502 Mr Thomas M Plaza Attorney at Law 200 Home Federal Building PO Box 3086 Sioux City Iowa 51102 Page 1 5-1402.60; 5-1802; 5-1803 5-4100; 5-2907 Filed April 18, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : DARLENE HUNT, : : Claimant, : : vs. : : File No. 921048 EVEREADY BATTERY CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1402.60 Claimant was not authorized to have surgery for her back, when the insurance carrier asked her to obtain a second opinion at Mayo Clinic before she had surgery. The request for the second opinion was made well in advance of the surgery. Claimant went ahead with the surgery anyway. The treating physician had invited a second opinion prior to the surgery. Surgery did not improve claimant's condition in that claimant's condition in the unoperated state caused an 8 percent functional impairment and in the operated state caused a 12 percent functional impairment. After the surgery, claimant still suffered from persistent low back pain. 5-1802 Claimant's healing period ended when the treating physician gave a rating, even though he used the AMA Guides second edition instead of the AMA Guides third edition. Page 2 5-1803, 5-4100 Claimant, is 46 year old, literate, with readily transferrable skills to another job in the competitive labor market. Claimant failed to make a prima facie case for odd lot designation. Claimant did demonstrate a loss of earning capacity. Claimant is no longer able to perform the type of work she was doing at the time of her injury. Claimant is foreclosed from doing jobs that require frequent stooping, bending, and lifting. Claimant cannot lift amounts repetitively in excess of 20 pounds. Claimant was earning $9.13 per hour at the time of her injury. The jobs identified for claimant by the vocational rehabilitation specialist pay between $5.00 and $7.00 per hour. Claimant's pay differential is approximately $3.13 per hour. There is however, an excellent chance that claimant will be retrained as she is vigorously pursuing an advanced degree. An industrial disability of 30 percent was awarded. 5-2907 Claimant sought payment of costs for several doctors' reports and hospital records. In accordance with rule 343 IAC 4.33, the cost of two reports and the filing fee were allowed. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ THOMAS PLATT, Claimant, File No. 921051 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ STATEMENT OF THE CASE Defendant's appeal from an arbitration decision awarding claimant 18 percent permanent partial disability benefits. The record on appeal consists of the transcript of the arbitration hearing and of joint exhibits A through XX. Both parties filed briefs on appeal. ISSUES Defendant states the issues on appeal as: 1. Whether the deputy industrial commissioner's finding that claimant sustained a permanent injury is contrary to the record and the law; 2. Whether the deputy industrial commissioner's finding that the claimant is entitled to temporary partial benefits was contrary to the record and the facts presented; and 3. Whether the deputy industrial commissioner's order of healing period benefits for the time between November 11, 1988 and June 15, 1990 is contrary to the record and the law. FINDINGS OF FACT The arbitration decision adequately and accurately reflects the pertinent findings and will not be totally reiterated herein. The following exception and additions are made, however. Claimant graduated from high school in 1978. William Hamsa, Jr., M.D., an orthopedic specialist performed an independent medical examination of claimant at claimant's request. In a May 12, 1989 medical report, Dr. Hamsa stated his impression that claimant suffered from probable nonspecific tendinitis in both wrists and hands. Dr. Hamsa further opined: I think this gentlemen's problem is job-related and unfortunately this is one of those difficult Page 2 situations, that if he cannot put up with his symptoms and work by his pain tolerance, he probably is going to have to find something else to do. I think his doctor is on the right track in the way he is treating him and I often will use a cast for a short period of time to mobilize the wrist as this type of distress. It would appear that the patient's main disability are persistence of symptoms rather than a percentage of disability. John Walker, M.D., examined claimant on or about June 15, 1990. Dr. Walker found claimant had grip strength of 110 kiloponts on the right and 82 kiloponts on the left. Dr. Walker stated that claimant's grip was obviously "down bilaterally for a man of [the claimant's] muscle development." Dr. Walker made the following diagnoses: (1) Over use stress syndrome of the right upper extremity with stenosing tenosynovitis of the long flexor tendon of the ring finger. (2) Early low grade post-traumatic arthritis of the right wrist. (3) Over use stress syndrome involving the forearms, hands and fingers of the left, upper extremity. (4) Low grade, early, post-traumatic arthritis of the radial carpal joint on the left. (5) A stenosing tenosynovitis of the flexor tendons of the long finger, right hand. Claimant underwent a preemployment physical in 1982. Grip strength on testing then was 98 kilograms on the right and 75 kilograms on the left. J. Michael Donohue, M.D., performed an independent medical examination on January 29, 1991. Claimant's grip strength then measured, on three sequences, 95, 85, and 85, on the right and 80, 75, and 80, on the left. CONCLUSIONS OF LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence with the following additions: A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; his arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and Page 3 opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985). An expert's opinion based on an incomplete history is not necessarily binding on the commissioner but must be weighed with other facts and circumstances. Musselman v. Central Telephone Co., 261 Iowa 352, 360, 154 N.W.2d 128, 133 (1967). Under Iowa Code section 17A.14(5) this agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. The analyses of the evidence and the conclusions of law the deputy reached as regards the issues of whether claimant received an injury which arose out of and in course of claimant's employment; whether a causal relationship exists between claimant's injury and claimed disability; whether claimant is entitled to temporary partial disability benefits; and whether claimant is entitled to payment of certain medical costs under section 85.27 and section 85.39 are adopted and will not be reiterated herein. The deputy's decisions as to claimant's entitlement to healing period benefits and claimant's entitlement to permanent partial disability benefits are modified as follows: Under section 85.34(1) claimant is entitled to healing period benefits until the first to occur of three events, namely: 1) claimant has returned to work; 2) significant improvement from the injury is not anticipated; or 3) until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury. Claimant had returned to work prior to his July 1989 termination with employer. From the record as a whole it appears that his work return was intermittently part-time or light duty. Indeed, claimant's position when terminated was a light duty position. Given that the part-time and light duty positions may well have resulted in a lessor income than claimant would have received had he returned to his position at the time of the injury, those returns to work are, as the deputy concluded, best characterized as periods of temporary partial disability and not as a return to work for the purposes of section 85.34(1). Dr. Donohue, claimant's treating physician, on September 8, 1989 clearly opined that claimant had reached maximum medical improvement, however. Dr. Donohue also saw claimant on December 15, 1989 at which time the doctor essentially released claimant from the doctor's care stating that should claimant's symptoms change he would reevaluate claimant in the future. The evidence does not show that claimant received medical care from other physicians subsequent to either September 8, 1989 or December 15, 1989. Indeed, the evaluation of December 15, 1989 appears to have been a follow-up examination only and not an examination for Page 4 rendering of additional care. Given such, Dr. Donohue's opinion that claimant had reached maximum medical improvement as of September 8, 1989 is the best and most objective evidence relative to the appropriate termination point for claimant's healing period. Claimant is entitled to healing period benefits for those times actually off work from his date of injury through September 8, 1989. We consider the question of claimant's entitlement to permanent partial disability. As the deputy noted, Dr. Walker, who examined claimant at claimant's request, has given claimant impairment ratings of 24 percent of the right upper extremity and 21 percent of the left upper extremity. Twenty-four percent of the right upper extremity converts to 14 percent of the body as a whole. Twenty-one percent of the left upper extremity converts to 13 percent of the body as a whole. Under the combined values chart of the AMA Guides 14 and 13 percent body as a whole ratings convert to a 25 percent combined value body as a whole rating. Dr. Walker also restricted claimant from repetitive use of his hands, fingers, wrists, forearms and upper extremities bilaterally. Dr. Donohue, claimant's treating physician, stated that the objective findings did not support a rating of permanent partial impairment. Dr. Donohue did indicate that claimant should avoid repetitive use of his upper extremities with respect to wrist flexion and extension or gripping activities bilaterally. Dr. Hamsa, an orthopedic specialist who also examined claimant at claimant's request, opined that claimant's condition was more a matter of persistent symptoms than a matter of objectively rateable permanent partial impairment. Dr. Walker's permanency rating is suspect on a number of grounds. Initially, Dr. Walker's impairment rating with the impairment attributable to the work injury is based on an incomplete history. While it may be true that claimant's grip strength was less than the norm for an individual of claimant's muscle development, it appears that claimant's grip strength was at least as good or better on examination with Dr. Walker than claimant's grip strength had been on examination at the time of his pre-employment physical and at the time of Dr. Donohue's January 29, 1991 evaluation of claimant's grip strength where values obtained were consistent with values obtained in 1982. Hence, it cannot be said that claimant's work-related injury has contributed significantly, if at all, to any reduction to claimant's grip strength. To the extent that Dr. Walker's ratings of permanent partial impairment reflect Doctor's erroneous conclusions relative to claimant's grip strength, Dr. Walker's opinions must be discounted. Additionally, Dr. Walker had evaluated claimant's impairment as an impairment to the upper extremities and as fairly significant impairment to the upper extremities. The diagnoses which Dr. Walker provides, with the exceptions of his statement of overuse syndrome of the right and left Page 5 upper extremities and the left forearm is (sic) all involve claimant's fingers, wrists or hands. Given that claimant's diagnoses and symptoms are predominantly located in the wrist, hands and fingers the doctor's opinions as to impairment in the upper extremities overall appear significantly higher than impairments generally found with such conditions. Furthermore, both the treating physician, also a reputable orthopedic specialist who had much more sustained long-term contact with claimant, and claimant's own other evaluating physician, that is Dr. Hamsa, have opined that claimant's condition is not one where objective findings warrant assignation of percentage of permanent partial impairment. Given such, it is most curious that Dr. Walker's opinions as to percentage of permanent partial impairment in the upper extremities is so great. Indeed, Dr. Donhoue and Dr. Hamsa's statements and findings are such that this case appears analogous to that of a lower back injury where the evidence establishes some incident of injury and where pain has persisted for six months or longer without significant objective findings or need for surgical intervention. Under the AMA Guides, Third Edition, those conditions are considered to result in a five percent permanent partial impairment to the body as a whole. A like finding is appropriate in claimant's circumstance and is consistent with the intent of section 85.34(2)(s) that simultaneous injuries to two members be evaluated on a 500 week basis but without consideration of industrial disability. Claimant is found to have sustained a permanent partial disability of five percent of the body as a whole. WHEREFORE, the decision of the deputy is affirmed and modified. Page 6 ORDER THEREFORE, IT IS ORDERED: Defendant pay claimant permanent partial disability benefits for twenty-five (25) weeks at the rate of two hundred forty-eight and 47/100 dollars ($248.47) per week commencing September 9, 1989. Defendant pay claimant healing period benefits for the time claimant was actually off work from November 15, 1988 through September 8, 1989. Defendant pay claimant temporary partial disability benefits for the time he was required to work on a part-time or light duty basis from November 15, 1988 through July 11, 1989. Defendant pay medical benefits and transportation expenses pursuant to Iowa Code sections 85.27 and 85.39. Defendant pay accrued amounts in a lump sum. Defendant receive credit for weekly benefits previously paid. Defendant pay interest pursuant to Iowa Code section 85.30. Defendant pay costs of this appeal, including the costs of transcription of the arbitration hearing. Defendant file claim activity reports pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of April, 1993. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies to: Mr. Steve Hamilton Attorney at Law 606 Ontario Street PO Box 188 Storm Lake, IA 50588 Mr. John Comer Attorney at Law PO Box 515 Dakota City, NE 68731 Page 1 1801.1, 1802, 1803, 1808 Filed April 29, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ THOMAS PLATT, Claimant, File No. 921051 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ Decision of the deputy affirmed and modified. 1801.1 Held that, where claimant returned to light duty and part-time work or both with employer who subsequently terminated claimant, deputy properly concluded claimant was entitled to temporary partial disability during periods prior to claimant's termination in which claimant's wages were less than when injured because claimant was employed in a part-time or light duty status. 1802 Held that, claimant was entitled to healing period benefits for those times when claimant was actually off work on account of his injury from claimant's injury date to the date on which claimant's treating physician opined claimant had reached maximum medical improvement, a time approximately two months subsequent to the employer's termination of claimant. 1803; 1808 Treating orthopedic specialist and one of claimant's two examining orthopedic specialists opined claimant had no permanency rating. Claimant's second examining orthopedic specialist gave a significant rating to the upper extremities. That rating was based on an incomplete history. Claimant's restrictions were largely related to his forearms, wrists, hands and fingers. Claimant had a documented cumulative trauma involving overuse syndrome of the left forearm and of both wrists, hands and fingers. Claimant had persistent symptoms more than six months after the injury and a lack of objective findings. Claimant's circumstances were found similar to those of an individual with a documented back injury without objective findings and Page 2 with pain persisting for at least six months after the injury. Five percent permanent partial disability awarded under section 85.34(2)(s). Page 1 before the iowa industrial commissioner ____________________________________________________________ : THOMAS PLATT, : : Claimant, : File No. 921051 : vs. : A R B I T R A T I O N : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Thomas Platt against IBP, Inc., as employer and self-insured. Mr. Platt bases his claim upon an alleged injury occurring on November 15, 1988. In accordance with the prehearing report and hearing assignment order, the parties submit the following issues for resolution: 1. Whether claimant received an injury which arose out of and in the course of his employment; 2. Whether there is a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to temporary disability, healing period benefits or permanent partial or permanent total disability benefits; 4. Whether claimant is entitled to temporary partial disability benefits; and, 5. Whether claimant is entitled to reimbursement for an independent medical examination, pursuant to Iowa Code section 85.39. The case was heard and fully submitted at Storm Lake, Iowa on March 26, 1991. The record consists of testimony from Thomas Platt and Carol Sebben; and, joint exhibits A-XX. Page 2 findings of fact The undersigned deputy, having heard all of the testimony and having reviewed all of the evidence received, finds the following facts: Thomas Platt, claimant, was born on December 25, 1959. He graduated from Crestland High School in Early, Iowa in 1959. After graduation, he attended Black Hawk College, taking courses in heavy machinery and millwright work. After three months, claimant quit school and began employment as an electrician's helper for Platt Electric Company, his father's business. From July through August of 1978, claimant worked in the construction field. He then moved to Davenport and worked at Service Rubber in Rock Island, Illinois until May of 1982. Claimant returned to Early, Iowa and in August of 1982 began working for TASCO, a construction company from Texas hired to refurbish various packing plants for IBP. Claimant's position required him to help build walls and various other general construction duties. In September of 1982, claimant was hired to work for defendant IBP. In his more than seven years with the company, claimant has held a variety of positions for the IBP plant in Storm Lake, Iowa. In his first two years at IBP, claimant worked as a picnic skinner. This position required him to take the hide off of meat which was moved by a conveyor belt. Claimant stated he worked 10 hours per day for six days a week, and skinned between 400 and 500 pieces per hour. During this time, claimant had no absences or reported injuries. Claimant then tried to bid to another position called boning picnics. He performed this job for approximately six weeks, and did not qualify for the position. He was then sent back to the picnic skinner position, where he was frozen on the job for one year. In approximately 1985, claimant bid to a boxing job which required him to take meat from the line, place it in a box, weigh the box, and then put the box on a pallet. Claimant stated he made the boxes at the same time, which required him to place a plastic liner in the box prior to putting the meat into the box. Claimant stated that the boxes ordered were too big, and he was required to stretch the plastic over the box. At this point, claimant voiced initial complaints about thumb, wrist and hand pain. He continued on this job for approximately one year. Eventually, claimant was placed back on the picnic skinner job. He began to encounter more problems with his upper extremities, and sought treatment from R. A. Dierwechter. M.D. Although there are no records from Dr. Dierwechter which clearly identify that claimant was being treated for physical problems with his hands or upper Page 3 extremities, and claimant returned to his regular job duties. (Joint Exhibit TT, pp. 41-42; Joint Ex. P; Jt. Ex. Q) Claimant next bid on a box shop position as a loin tray former. This night shift position required claimant to load a hopper with cardboard boxes, wait until the machine had folded the boxes, and then claimant manually flipped the lid of the box to its specified position. He performed this job for two years, and then bid into a position as a floor janitor. This position required claimant to shovel and run a squeegee to pull fat across the floor. He was also required to unload tubs of fat. The evidence in the case indicates that claimant had complained of hand and finger pain as far back as June of 1984, and continuing through November of 1988, and he has alleged an injury of November 15, 1988. The medical records from the defendant employer reflect that claimant finally received medical care from the company doctor on November 10, 1988. (Jt. Ex. U, p. 8) Claimant was initially treated by S. Wulfekuher, M.D., on November 10, 1988. Dr. Wulfekuher's notes indicate that claimant complained of numbness in the hands. There was a loss of sensation over the palmar and dorsal surfaces of both hands. Nerve conduction studies were ordered. (Jt. Ex. II; Jt. Ex. GG) These tests were normal, with no evidence of carpal tunnel syndrome. (Jt. Ex. S) Claimant returned to Dr. Wulfekuher on December 8, 1988. On this visit, claimant was diagnosed as having mild lateral epicondylitis (tennis elbow), bilaterally. (Jt. Ex. II) Claimant was to return to work with avoidance of shoveling duties for 4-8 weeks. (Jt. Ex. JJ) The employer was aware of this restriction, however, claimant was returned to a job which required shoveling duties. (Jt. Ex. U, p. 9) Claimant continued to have problems, continued to work with the medical staff secured by IBP, and continued to have restrictions of no repetitive grasping or use of a shovel. (Jt. Ex. U, p. 10) Yet, claimant was continually placed upon his regular job which involved grasping the handle of a shovel or squeegee. Claimant was eventually referred to J. Michael Donohue, M.D. Dr. Donohue's notes indicate that claimant was evaluated for bilateral forearm discomfort and intermittent numbness in both hands on March 29, 1988. Dr. Donohue's assessment was probably posterior inner osseous nerve entrapment, more pronounced on the right than left. No objective or clinical findings were consistent with carpal tunnel syndrome. Dr. Donohue related the nerve entrapment to the forearm discomfort of claimant, and recommended rigid immobilization of the wrist with a cast on the right forearm. Claimant was to be re-evaluated in four weeks. Claimant was released to return to work on a job which Page 4 involved picking up pieces of fat from a belt and dropping them into a bucket. Claimant returned to Dr. Donohue on a April 26, 1989. Although the right forearm discomfort had resolved, claimant's left arm displayed moderate tenderness over the extensor muscular. Claimant was fitted with a short arm cast on the left upper extremity, and a bi-valved cast on the right arm to be used at work. He was to be re-evaluated in four weeks. Claimant returned to Dr. Donohue on May 24, 1989. At that time, his condition had improved, and Dr. Donohue released him to return to work on the line for two hours a day, with the remainder of his shift fulfilled with activities that avoided repetitive pushing, pulling or gripping activities with his upper extremities. Dr. Donohue progressively increased claimant's activities on the line, and beginning July 26, 1989, claimant was to work 8 hours per day on the line. (Jt. Ex. F, p. 5) Claimant was subsequently terminated on July 11, 1989. Claimant returned to Dr. Donohue in July and August of 1989, with complaints of upper extremity pain. He was diagnosed as having overuse syndrome to both upper extremities, however no objective findings pointed to permanent impairment. An EMG was ordered, although Dr. Donohue opined that if the results were negative, claimant could return to regular activities with no further medical intervention. His final diagnosis was that of bilateral upper extremity dysfunction, with subjective complaints out-weighing objective findings. (Jt. Ex. F, pp. 6-7) Claimant returned to Dr. Donohue in September and December of 1989, with negative results from the EMG and serological tests. Again, Dr. Donohue was of the opinion that claimant had bilateral upper extremity dysfunction. Dr. Donohue's final opinion came on January 29, 1991. His assessment remained the same, as he diagnosed claimant's problem as bilateral upper extremity dysfunction with objective findings including a nodularity in the flexion tendon of the right long finger, ring and small fingers. Additionally, there was a nodule on the ring and small finger on the left hand. Potential treatment included a release of the A1 pulley of the right long finger. Dr. Donohue was of the opinion that claimant had sustained no permanent injury. However, he imposed restrictions of avoiding repetitive use of the upper extremities with respect to wrist flexion and extension and gripping activities. (Jt. Ex. C) Prior to Dr. Donohue's final evaluation, claimant underwent an independent medical examination with John Walker, M.D, an orthopedic specialist. Dr. Walker also found overuse and stress syndrome of the forearms, hands and wrists, bilaterally. Based upon his evaluation and review of tests results, Dr. Walker made the following assessment with regards to claimant's impairment: Page 5 As far as the right, upper extremity is concerned, it is my opinion that he has a permanent, partial impairment amounting to 24% of the right, upper extremity. As far as the left upper extremity is concerned, it is my opinion that he has a permanent, partial impairment amounting to 21% of the left, upper extremity. (Jt. Ex. A, p. 6) analysis and conclusions of law The first issue to be addressed is whether claimant received an injury which arose out of and in the course of his employment with IBP, Inc. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 15, 1988 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 injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. The evidence suggests that claimant began complaining of pain in the finger, hands, wrists and forearms in 1984. The positions he has held while working for IBP have required him to use extensively and repetitively his arms and wrists. Each time claimant sought treatment from a company doctor, he related the pain to the duties he was performing. There is no evidence to indicate that claimant received an injury while off of the job. As a result, it is found that claimant received an injury which arose out of and in the course of his employment. The next issue to be addressed is whether there is a causal relationship between claimant's injury and his disability. Page 6 The claimant has the burden of proving by a preponderance of the evidence that the injury of November 15, 1988 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). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). From the evidence submitted, there appears to be no question that claimant's disability is related to his injury. Prior to his employment with IBP, claimant was required to undergo a company physical, and passed. There is no indication that he had suffered from any type of finger, hand, wrist or upper extremity medical conditions or problems prior to his employment with IBP. Dr. Wulfekuher related claimant's condition to his work, thereby restricting his capacity to perform required job functions at various times throughout his course of treatment. Dr. Donohue is silent on the causal connection, but Dr. Walker, the doctor who performed the independent medical examination, directly links claimant's disability with his work. As a result, it is found that claimant's disability is causally related to his injury. The next issue to be addressed is whether claimant is entitled to permanent partial disability. Claimant has been given impairment ratings from Dr. Page 7 Walker, as previously set out in this decision. The 24 percent permanent impairment assigned to the right upper extremity converts to a 13 percent body as a whole under the AMA Guide, 3rd Edition. The 21 percent permanent impairment assigned to the left upper extremity converts to a 13 percent body as a whole impairment pursuant to the Guide. Additionally, claimant was given permanent restrictions of no repetitive types of jobs involving the hands, fingers, wrists, forearms and upper extremities on either the right or the left side. Dr. Donohue, who treated claimant on approximately eight different occasions found no permanency, but proposed a permanent restriction of avoiding repetitive use of both upper extremities with respect to wrist flexion and extension or gripping activities. (Jt. Exs. F, E, D, & C) William Hamsa, Jr., M.D., is an orthopedic specialist who also performed an independent medical examination. He provided the following opinion: I think this gentleman's problem is job-related and unfortunately this is one of those difficult situations, that if he cannot put up with his symptoms and work by his pain tolerance, he probably is going to have to find something else to do. I think his doctor is on the right track in the way he is treating him and I often will use a cast for a short period of time to mobilize the wrist as this type of distress. It would appear that the patient's main disability are persistence of symptoms rather than a percentage of disability. (Jt. Ex. VV) It would be difficult for the undersigned to come to the conclusion that claimant has sustained no permanent disability, given the type of work he has done for more than seven years, and in light of the medical restrictions placed upon him. However, both impairments seem to be extreme, and it has been necessary to carefully review the functional limitations claimant exudes. Claimant's disability will fall under the guidelines of Iowa Code section 85.34(s), and will be based upon a body as a whole injury; however, an analysis of the litany of factors that comprise an industrial disability is not warranted. See, Simbro v. DeLong Sportswear, 332 N.W.2d 886 (1983) Claimant still suffers from bouts of swelling of his forearms; nodules on at least two of his fingers; some limitations on range of motion of his wrists; numbness and tingling in the right hand and all fingers; loss of grip in the left and right hands; and, pain. After considering all of these factors, as well as claimant's testimony detailing difficulties incurred in using the injured members, and all of the medical evidence regarding general loss of use, it is found that claimant has sustained a permanent partial disability of 18 percent of the body as a whole. Page 8 As claimant has sustained a permanent injury, he is entitled to healing period benefits for the amount of time he was totally off of work and receiving medical treatment. See, Iowa Code section 85.34(1). The next issue to be addressed is whether claimant is entitled to temporary partial disability benefits. Iowa Code section 85.33(2) provides, in pertinent part: "[T]emporarily, partially disabled" means the condition of an employee for whom it is medically indicated that the employee is not capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, but is able to perform other work consistent with the employee's disability. "Temporary partial benefits" means benefits payable, in lieu of temporary total disability and healing period benefits, to an employee because of the employee's temporary partial reduction in earning ability as a result of the employee's temporary partial disability . . . Between the date of injury and claimant's termination, he was placed on part-time and on light duty positions periodically. Claimant is entitled to tempoary partial disability payments on those days he worked in a light duty or part-time status. His rate for tempoary partial disability benefits is calculated under Iowa Code section 85.33(4): If an employee is entitled to temporary partial benefits . . . the employer for whom the employee was working at the time of injury shall pay to the employee weekly compensation benefits, . . . for and during the period of temporary partial disability. The temporary partial benefit shall be sixty-six and two-thirds percent of the difference between the employee's weekly earnings at the time of injury . . . and the employee's actual gross weekly income from employment during the period of temporary partial disability. The next issue to be addressed is whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. Defendant are disputing that the medical services rendered were fair and reasonable, and causally connected to the work injury. As previously laid out in the opinion, claimant did sustain an injury which arose out of and in the course of his employment. He is entitled to have all medical benefits provided for under the statute, and is to be reimbursed any and all transportation expenses incurred in receiving medical treatment. Dr. Walker's fee of $706.00 is also disputed as to being fair and reasonable. Claimant is entitled to an independent medical examination as provided for under Iowa Code section 85.39. Dr. Walker's fee is not unreasonable given the detailed examination given to claimant, and defendant is ordered to pay for the same. order Page 9 THEREFORE, it is ordered: That defendant shall pay claimant permanent partial disability benefits for ninety (90) weeks at the rate of two hundred forty-eight and 47/100 dollars ($248.47) per week commencing on June 15, 1990. That defendant shall pay claimant healing period benefits for the time he was off of work from November 15, 1988 through June 15, 1990. That defendant shall pay temporary partial disability benefits for the time he was required to work on part-time or light duty status. That defendant shall pay medical benefits, and transportation expenses pursuant to Iowa Code section 85.27 and Iowa Code section 85.39. That defendant shall pay accrued amounts in a lump sum and shall receive credit against the award for weekly previously paid. That defendant shall pay interest on benefits awarded herein as forth in Iowa Code section 85.30. That defendant shall pay the costs of this proceeding, pursuant to rule 343 IAC 4.33. That defendant shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of June, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Steve Hamilton Attorney at Law 606 Ontario Street PO Box 188 Storm Lake Iowa 50588 Ms Marie L Welsh Attorney at Law PO Box 515 Dept #41 Dakota City Nebraska 68731 5-1803.1 Filed June 21, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : THOMAS PLATT, : : Claimant, : File No. 921051 : vs. : A R B I T R A T I O N : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803.1 Claimant worked for defendant for seven years. He developed bilateral upper extremity overuse syndrome. Company physician rendered a zero percent permanent impairment rating, but imposed medical restrictions limiting claimant's use of both upper extremities. An IME was performed by John Walker, M.D., who rendered a left upper extremity impairment of 21 percent, and a right upper extremity impairment of 24 percent. Claimant was awarded 18 percent body as a whole disability, as guided by Iowa Code section 85.34(s).