Page 1 before the iowa industrial commissioner ____________________________________________________________ : DAVID A. SPARKS, : : Claimant, : : vs. : : File No. 921128 E.J. BRACH CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ZURICH-AMERICAN INSURANCE, : INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on November 17, 1992, in Davenport, Iowa. This is a proceeding in arbitration wherein claimant seeks permanent partial disability benefits as a result of an alleged injury occurring on May 30, 1989. The record in the proceeding consists of the testimony of the claimant; claimant's wife, Nancy Sparks; Richard Harper; Clark Williams; and, joint exhibits 1 through 23. issues The issues for resolution are: 1. The extent of claimant's permanent disability and entitlement to disability benefits; and, 2. Whether there is a causal connection as to claimant's May 30, 1989 work injury and claimant's alleged permanent disability. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified in person and through his deposition taken August 16, 1991, represented by joint exhibit 16. Claimant is a 36-year-old who finished the eighth grade and then went back to a community college in 1983 to get his GED. He has no other education, although he started attending Black Hawk College and signed up for two courses. He indicated there were not enough students and the counselor indicated he could go part-time but claimant would have to pay for it as the grant would not cover part-time. Claimant indicated he sought this schooling voluntarily while his workers' compensation claim was pending. Claimant Page 2 desired to further his education so he could learn a new trade and get on with his life. Claimant related his work history prior to beginning employment with defendant employer on March 15, 1982. This work history included working approximately 17 to 19 years for his father in the siding construction business. This work was manual labor and involved loading equipment, setting up equipment and scaffolding, cutting siding, cleaning yards, loading the truck, etc. Claimant stopped this job because he got a job with defendant employer. Claimant also related his work history prior to working for his father which involved manual labor. Claimant worked for defendant employer until he was terminated on June 6, 1992. He indicated he received a letter in the mail from defendant employer. The letter terminated claimant for the reason that claimant had been laid off for a year and lost his rights to be called back. Claimant said defendant employer refused to rehire him even though he thought there would be a job for him after having worked ten years for defendant employer. Claimant indicated that in the past before a new company took over defendant employer, they would have had a place in the plant for him. Claimant said Clark Williams, the rehabilitation consultant, tried to get the defendant employer to hire him back. Claimant indicated that he also called the company. He said he would like to get his job back. Claimant did acknowledge that he declined to be a packer because of what he thought were his restrictions at the time. Claimant indicated he checked back and that in May of 1991, he was told there was a packer job available but claimant said he couldn't take it because of restrictions. Claimant related it was his undestanding that his restrictions were no lifting, twisting, bending or standing on his feet for a long period of time. When claimant told the plant manager about these restrictions, the plant manager told him there was no job available for him. This conversation occurred around May 2, 1991. Claimant contends that prior to this date he asked defendant employer once a month if there was a job available. He did this at the recommendation of Clark Williams, the rehabilitation consultant, who also told him he should also write a letter to the employer once a month. Claimant also acknowledged that two jobs were offered to him in August of 1990 by defendant employer which were allegedly light duty work but claimant contends that the nature of the job would be in violation of his restrictions. Claimant described the nature of these jobs and what he would have to do and explained how they would be violating his restrictions. Claimant testified to various periods of time wherein he went back to work and had to take off work again and described the various jobs and titles of the work he did up to June 6, 1992, when he was terminated. The undersigned does not believe it is necessary to set out the particular periods and the particular jobs claimant attempted to do, and which jobs he indicates he was not able Page 3 to do after a while as the parties have stipulated to three different periods of time in which claimant was legitimately off work and entitled to temporary total disability or healing period benefits. These periods of time are May 31, 1989 through July 18, 1989; January 27, 1990 through August 4, 1990; and, October 24, 1990 through May 2, 1991. The undersigned might note that the presentation of claimant's testimony was very hard to follow as far as the sequence and chronological order. Claimant described how he was injured on May 30, 1989. Basically, claimant indicated he was packing a box of candy that weighed about 35 pounds. As he was stepping off a skid, his foot got stuck on two boards of the skid and as he was falling he caught himself. He indicated he had pain in his back. Claimant testified as to his medical condition and the pain he said results from his May 30, 1989 injury. Claimant said the work hardening program he went through did not do him any good and that he was still in pain. This apparently went on for sixteen weeks and then it was decided it wouldn't help him anymore. Claimant contends he still continues to have pain and a TENS unit was recommended but never provided. Claimant related the various jobs for which he filled out applications. Claimant said he found a job with Precision Auto Repair through his brother-in-law. He indicated a friend referred him to this job. Claimant indicated this job encompassed washing and waxing cars, cleaning tires, cleaning the inside of cars, and hosing down motors. He said he began this job on July 22, 1992 and worked until August 24, 1992. Claimant contends he lost his job because a customer complained he had put scratches in the seat leather. Also, his brother-in-law's boss felt he was too slow and also had to redo certain jobs. Claimant indicated he was paid on an average of $5 per hour. In many instances, he indicated that it actually amounted to $4.25 per hour if you considered the amount he was paid and the excess hours it took to do the job. Claimant indicated that he was never told not to work at this particular type of job. It was at this particular job that a surveillance tape was taken by defendants and is represented by joint exhibit 15. This tape was taken beginning July 29, 1992, around 9:45 a.m. Claimant testified that he is not working now and the only job since his termination from defendant employer in June 1992 was the Precision Auto Repair job with his brother-in-law. Claimant indicated he would like to return to school and take accounting as he likes working with numbers. Claimant related that he was making $8.89 per hour at defendant employer's at the time of his termination. On cross-examination, claimant was asked about or referred to various exhibits from various doctors. He was referred to the fact that surgery was not recommended and a bone scan was negative, a CAT scan and myelogram were negative, and that an EMG and an MRI were negative. An August 29, 1990 note from Daniel B. Johnson, M.D., indicates Page 4 he released claimant to work up to six hours per day with a weight restriction of 25 pounds (Jt. Ex. 4, p. 57). The physical therapist on August 31, 1990 also released claimant with the same restriction and light duty (Jt. Ex. 6, p. 83). Claimant was then asked about the February 20, 1991 report of J.R. Lee, M.D., in which he indicated claimant's restriction of frequent lifting no more than 25 pounds in order that he not aggravate his preexisting degenerative disc disease (Jt. Ex. 3, p. 48). In October of 1991, claimant was referred for a functional capacity test in which the evaluation results indicate claimant's ability to lift 20 pounds on an occasional basis and 10 pounds on a frequent basis (Jt. Ex. 2, p. 36). It appeared from claimant's testimony that when he had a conversation with his employer in May of 1991 and was relating his restrictions and determining what he could and couldn't do, he was referring to or relying on Dr. Johnson's April 12, 1991 report setting out restrictions in which the doctor had the impression that claimant was unable to work in any capacity that required standing, twisting, bending or lifting. At that time, he gave claimant an impairment rating of 10 percent of the total body (Jt. Ex. 4, p. 53). Claimant acknowledged that he never mentioned Dr. Lee or Charles Cassel, M.D., when he told the company about his restrictions. He indicated he only knew or related Dr. Johnson's restrictions. Nancy Sparks, claimant's wife, testified that claimant obtained his job with Precision Auto Repair through her brother-in-law as they were not doing well financially. She indicated that claimant could not get a job before this one because of his pain. She indicated she had to help him through the door. She indicated she put hot packs on his legs and back. Richard Harper testified that he has been the plant manager for defendant employer since March 17, 1990, and prior to that time was superintendent at Andy's Candies. He indicated he oversees the well-being of the plant, purchases supplies, handles personnel, etc. He is familiar with claimant. He recalled a conversation on May 2, 1991 with claimant. He indicated that claimant said he was able to return to work so he indicated that claimant should report on May 3, 1990. He indicated that claimant said he couldn't do the work due to his restrictions. Mr. Harper then told the claimant to report to the licorice department and claimant indicated this was beyond his restrictions. He then suggested claimant pick up the scrap at the end of the conveyor and pick up papers off the line as claimant could then sit or stand during this particular job. He said claimant contended he had done that job before and could not do it. He then indicated he didn't have another job for claimant. Mr. Harper went over the various jobs within the packing department and related the type of work involved and Page 5 any weight involved. He indicated that the packer job or department includes different facets such as an inspection job and licorice job. Mr. Harper indicated that he felt these jobs would be within claimant's restrictions. He indicated that if there was one particular item that wasn't within claimant's restrictions, he could get help. He cited one example that claimant raised in the inspection part - if a piece of candy got stuck, claimant would have to use more effort to get it loose. Mr. Harper indicated that there would be help to do that and claimant wouldn't have to do it. Mr. Harper indicated that claimant's pay of approximately $8.69 per hour would have stayed the same in any of these other particular jobs. Mr. Harper then went over the provisions in the union contract which indicates that if one is off work for twelve months, then the person is considered a voluntary termination. Claimant was sent a letter as to this fact. Mr. Harper's letter is indicated by joint exhibit 22, page 239, said letter being dated May 18, 1991. Mr. Harper acknowledged that he did not explain the contract provision to the claimant but said claimant had a copy of the contract. Mr. Harper said that as far as he knows the claimant never did call the company regarding coming back to work between May of 1991 and May of 1992. Mr. Harper again emphasized that the scrap job at defendant employer is still a light job and requires lifting about a 10 gram piece of candy. Mr. Harper again emphasized that the inspection packer job complies with claimant's restrictions. Mr. Harper referred to a letter written July 30, 1992 (Jt. Ex. 22, pp. 234 and 235) which not only explains some of the things to which Mr. Harper has testified but also indicated to claimant that they were going to be hiring some more temporary and full-time employees and told claimant what he could do if he was interested in the job. Mr. Harper said claimant never applied. He indicated the company was hiring about 80 to 90 more people within the two months after that time. Mr. Harper indicated the jobs that were being offered to claimant were full-time jobs and not made up jobs. On cross-examination, Mr. Harper was asked when he referred to a packer why he didn't specifically mention the inspection or licorice job. Mr. Harper indicated that under the contract all of these are considered packer jobs. He again referred to his letter of July 30, 1992 (Jt. Ex. 22, pp. 234 and 235). Mr. Harper indicated that 75 percent of those 80 or 90 people they were hiring were for packer jobs. Clark Williams, a rehabilitation consultant, testified that he was assigned to claimant's case in 1992 and that his job was to get claimant back to work. He indicated he was not aware at the time that claimant was a voluntary quit. Mr. Williams' first meeting with claimant was May 14, 1992, when he took a history, etc. Mr. Williams indicated that the medical restrictions seemed to have considerable Page 6 diversity. He said Dr. Johnson's was fairly restrictive and Dr. Lee's was fairly unrestricted and had only a 25 pound weight limit. Mr. Williams stated at the time of his contact with claimant, claimant was home caring for the children as claimant's wife had returned to work and he needed to care for his children. He indicated he saw claimant a total of three times and that he liked claimant but thought claimant was very much caught up with Dr. Johnson's restrictions. Mr. Williams said that after he saw the video tape (Jt. Ex. 15), he concluded that claimant is capable of doing more than he understood previously. Mr. Williams commented that he thought claimant was more interested in caring for his children than looking for work. Daniel B. Johnson, M.D., a neurologist, testified through his deposition on September 17, 1992. He indicated he first saw claimant on February 26, 1990 upon referral from Dr. Cassel. The doctor indicated that on taking the history he felt claimant had a good history for bilateral lumbar radiculopathy. After two visits to him and since his examination was normal, the CT scan, myelogram and EMG were normal, the MRI scan and his lumbar spine were essentially normal, he could not find a specific reason why claimant was in pain, but he was treating him as a chronic pain syndrome and he put him on medication. The doctor indicated that his 10 percent impairment rating of claimant was due to claimant's work injury. He was unable to state claimant's prognosis because he had not seen him for a year and a half and he didn't know his current status. The doctor was asked about his February 12, 1991 letter (Dep. Ex. 2; Jt. Ex. 4, p. 54). The doctor indicated that since claimant was still having pain, he suggested a psychological approach to chronic pain management but the workers' compensation carrier denied this being done. On cross-examination, the doctor acknowledged that his rating and any restrictions he gave concerning claimant was based on his last examination of claimant in April of 1991, which was approximately a year and a half ago. The doctor also acknowledged that claimant has undergone two or three MRI's, some EMG's and nerve conduction studies and that those objectively speaking showed nothing wrong with claimant. He also did not notice any disc herniation or protrusion of any discs in claimant's spine (Jt. Ex. 17, p. 19). The doctor did not see any evidence of a pinched nerve (Jt. Ex. 17, p. 20). The doctor was asked whether he remembered running claimant through any particular test to measure the exact amount of claimant's decreased range of motion and the doctor replied that he did not measure direct amounts. It was a visual inspection (Jt. Ex. 17, p. 22). Charles Cassel, M.D., orthopedic surgeon, testified through his deposition taken on November 2, 1992. He testified claimant came in to see him on June 14, 1989. He related the history claimant gave him and the nature of the examination. He stated that claimant seemed to be in some discomfort but his incongruently test at the time was Page 7 negative, his reflexes were present and symmetrical, he had slight weakness of the right foot, his great toe extensor, otherwise muscle strength appeared to be intact, etc. The doctor related his initial impression but proceeded with a myelogram, CT and EMG to further see what may or may not be the problem. He related that these tests were essentially negative and he didn't see any need for surgery. He indicated that he wrote out a prescription for his physical therapy, a lumbar support and a TENS unit for claimant. The doctor did not know whether the TENS unit was ever provided for the claimant. The doctor indicated that when he saw claimant on June 16, 1992 at the request of the insurance carrier and employer, he did not nor was he asked to give an impairment rating. There was then questioning concerning the surveillance tape that was taken in late July 19, 1992. The doctor obviously did not see the tape and, in fact, indicated that he does not look at or review such type of tapes as he is not a detective and his records indicate that his secretary passed that information on to the defendants' attorney. The doctor again emphasized that it has been his practice not to view any video tapes in this type of proceeding. Claimant's attorney continued over the objection of defendants' attorney to ask the doctor some questions that would pertain to what claimant allegedly did in the video. The undersigned finds said objection is sustained because it is hard to answer questions of that nature and with the importance that goes with it without the doctor actually seeing what the claimant is doing rather than allegedly having him, in general, be told what supposedly is in the tape. The undersigned finds that the nature of claimant's attorney's question does not truly reflect what was seen by the undersigned on the tape. The doctor did say that any activity claimant would do should be applauded and that he advised claimant to try to do things he thought he could do and that claimant needed to control his pain. The undersigned might note that this didn't actually answer the question that was asked, but it shows all the more the importance of the doctor viewing the tape if he is going to try to address the question because the claimant has taken the basic position from his testimony that he is unable to work and basically is attempting to leave the impression that he is totally disabled. It is not clear whether he tried to leave that impression with the doctor but again the doctor is not apprised obviously of claimant's total picture or contentions from the litigation standpoint (Jt. Ex. 18, p. 27). The doctor kept his 10 percent impairment opinion that he had issued approximately three years earlier in 1989, and did put claimant through a few motion tests. When asked as far as claimant's long time problem with his back, the doctor did indicate that it would be difficult to assign his entire 10 percent rating to one incident in May of 1989 due to claimant's prior back history (Jt. Ex. 18, p. 30). Page 8 The doctor acknowledged that he heavily relies on the claimant's subjective complaints of pain in trying to assess and determine what his restrictions are. He presumes that claimant is telling him things correctly. He also relies on the physical exam. He further indicated, and it would be obvious, that if the subjective complaints are not accurate then, of course, it would affect any conclusion and opinion. Again, there were several additional questions by both attorneys as to Dr. Cassel's 10 percent impairment rating. It is obvious that the doctor was unable to determine what percent of that 10 percent existed before or after claimant's May 30, 1989 injury (Jt. Ex. 18, pp. 38-41). There was considerable deposition testimony in this case and the doctors in their depositions either referred to or testified as to contents of their reports or records that are also written exhibits in this case. The undersigned finds no necessity to duplicate or further set any more than may be necessary regarding the various reports of the doctors or the rehabilitation consultant. Joint exhibit 3, page 44, is a September 22, 1992 letter from Dr. Lee after which he had an opportunity to view the video tape, at least in the abridged form. Previously in the record Dr. Lee had issued some restrictions which were different than other doctors. It is obvious from his September 22, 1992 letter, in viewing the video tape he would change his prior evaluation. He opined, therefore, that claimant is capable of working as a packer within the defined functional capacity. The undersigned might note from the evidence presented that he agrees with Dr. Lee as to the fact that it would appear in viewing the video tape himself, claimant would be able to do those jobs or at least make a good sincere effort to try the job offers in the packer department, which includes sub departments or various classifications. Dr. Lee still maintained his position that pain management with a TENS unit is probably a prudent way to manage claimant's present condition. It appears the insurance company had never provided this (Jt. Ex. 3, pp. 44 and 46). Joint exhibit 4, page 52, is a letter from Dr. Johnson dated October 15, 1992, in which he had a chance to view the video tape which is referred to as joint exhibit 15. Pursuant to seeing this tape, the doctor noted that claimant repeatedly bends at the waist, twists and leans one side to the other, and that there was no evidence of any pain behavior and the tape would suggest to him that the claimant's back was not causing him significant pain during vigorous mobility maneuvers. The doctor concluded it would appear that since his last examination of the claimant in April of 1991, claimant's back has improved considerably and that the 10 percent rating he gave him at that time would be less. As far as work restrictions, he would lift the bending, squatting, twisting and turning but thought there still should be a lifting restriction but he didn't say to what extent the lifting restriction should be. Joint Page 9 exhibit 4, page 53, is the April 12, 1991 report of the doctor in which he opined a 10 percent impairment rating of claimant's body as a whole. Joint exhibit 6, beginning at page 82, is the progress report of the Bettendorf Physical Therapy Center dated August 31, 1990. This report reflects that claimant has been participating in the Back In Balance program since July 12, 1990, and has attended at that time 33 of the 35 scheduled sessions. The report notes that claimant was making progress but that when his workers' compensation checks are not on time, it is the industrial rehabilitation team's opinion that due to this emotional upset of receiving his check that this in itself impedes progress somewhat (Jt. Ex. 4, p. 84). Under the rehabilitation plan of said report, this problem is repeated and further states that claimant's progress towards his goal of returning to work full-time without restrictions is anticipated except due to this added stress. The undersigned might note that even though 86.13(4) is not an issue herein, this type of conduct, if it occurred, is irresponsible and can only lead to more expense to the defendants. At least this independent organization concluded that claimant's rehabilitation has been somewhat thwarted, delayed or affected by the defendant insurance company's action. It would appear that payments were being made and that the insurance company felt they were due and, therefore, such conduct on the part of the insurance company cannot be condoned. The parties stipulated to any healing period or temporary total disability period that may be involved herein and that 61.286 weeks have been paid at $225.09. They should be paid at the correct rate of $229.56. The only issues are the extent of claimant's permanent disability and the causal connection as to any permanent disability. Defendants have paid 61 weeks of permanent partial disability benefits prior to this hearing. These were paid at the rate of $225.09. There is considerable medical testimony in this case. There is also substantial diversity among the doctors as to the particular restrictions that were given this claimant at various times, some of those times being of very similar periods. Although it is not unusual that experts will disagree on the extent of one's impairment or the extent of restrictions, it is concerting and confusing to a deputy when there is such diversity on what otherwise would seem to be similar facts. The claimant seems to have been fixated up to the present on Dr. Johnson's restrictions which for all purposes would leave claimant unable to perform any job. Dr. Johnson initially restricted claimant from bending, twisting, standing or lifting (April 12, 1991), (Jt. Ex. 4, p. 53). On October 15, 1992, the doctor lifted those restrictions but indicated claimant still needed a lifting restriction but did not state any amount. It appears the claimant is still operating or acting as though he is still Page 10 restricted by the doctor's 1991 restrictions. Dr. Lee opined a 25 pound lifting restriction in February of 1991 (Jt. Ex. 3, p. 48). On September 22, 1992, after seeing the same video that Dr. Johnson had seen, he also changed his opinion. The evidence does now show that claimant's condition worsened from February 1991 to April 1991 in which there was a substantial difference between Dr. Lee's and Johnson's restrictions. Likewise, the undersigned does not believe that after the doctors viewed joint exhibit 15 (video tape taken July 29, 1992 of claimant doing certain physical activities) claimant suddenly improved. The undersigned believes that what claimant was doing in July 1992 he was able to do earlier than that time but through lack of motivation and effort, he did not try nor did he have any employment until the Precision Auto Repair job in July 1992. As indicated earlier, it appeared that claimant was operating even in July of 1992 on Dr. Johnson's restrictions. The question may be asked why he then took a job in July of 1992 and claimant answered that he needed the money and was having financial problems. It took that to motivate claimant. The undersigned finds that the defendant employer made a good faith effort to keep claimant employed and to provide work for him, even work that the undersigned finds was light duty. It seems that the claimant felt any jobs offered were not within his restrictions and as indicated earlier, Dr. Johnson's restrictions, which were very restrictive, would eliminate claimant from doing hardly anything including the normal, daily non-work activities. In looking at the medical testimony as a whole, the undersigned questions the logic or severity of Dr. Johnson's restrictions. The claimant indicated that he didn't know or at least didn't rely upon any restrictions other than Dr. Johnson's, which basically left him in an apparent unemployable, totally disabled condition. The extent of these restrictions did not help claimant's motivation and appears to lead to depression. The record shows that around the first part of May there was a conversation claimant had with the employer concerning returning to work to a particular job. Claimant seems to contend that he was familiar with the packer jobs and that they were outside of his restrictions. The employer indicates that the packer jobs included certain departments within it, one being licorice and one being inspection. The employer described these jobs and it appears obvious to the undersigned that these were jobs that the claimant could have done or at least should have made a very hard, good faith, sincere effort do try if he was motivated. Claimant appears to think that he didn't know a packer job included the lighter duty jobs. It was also clear to the undersigned that if there was a particular item of a certain job that was outside claimant's restrictions, claimant would get help. The additional problem that Page 11 existed at that time is that claimant was still operating on Dr. Johnson's restriction and the undersigned has serious questions as to the extent of those restriction, particularly in light of the other medical evidence, Dr. Lee's less restrictive restrictions and the video tape. The undersigned finds that if claimant was motivated, he would have tried. This would have been his best opportunity to retain his seniority and job status with a company he had been with for approximately ten years. Joint exhibit 15 (the video tape) shows claimant doing things that without question he would not be able to do if Dr. Johnson is correct on his restrictions. It is obvious when Dr. Johnson and Dr. Lee saw that tape, they substantially changed their position. The undersigned feels that once this decision is behind claimant, he may become more motivated unless he has placed himself, partly due to his responsibility, in such a situation where he no longer desires to work but rather stay home and care for his children instead of hiring someone to do same. His wife is now working whereas it appears while he was working, his wife stayed home to care for the children. The undersigned finds that claimant was injured on May 30, 1989, and the parties have so stipulated. As indicated earlier, what is the extent of claimant's permanent disability at the present time? And, is the extent causally connected to his May 30, 1989 injury? The greater weight of medical testimony shows that claimant does have a permanent impairment that results from the May 30, 1989 injury. The parties agreed earlier that when there is a reference to any injury, namely, the apparent carpal tunnel around January of 1990, it is not a part of this case and is not an issue herein. There has been no testimony in this case as to that affecting his body as a whole. Everything has been related to a back problem and as far as the twisting, bending, lifting and squatting, that has been totally related to his back and nothing else. What effect any carpal tunnel may have on his overall motivation and trying to find work or being able to work is not in the record. Although there is testimony to the extent that claimant had been having back problems prior to May 30, 1989, and that Dr. Cassel indicated in his deposition that the 10 percent impairment he originally opined could have some indeterminable amount attributable to a period prior to May 30, 1989, he was unable to apportion. He did not see or wish to see the video but it is obvious that the effects of the video could have an effect on any impairment rating that he earlier opined or seems to continue to opine without having current up-to-date information. The undersigned finds that claimant does have a permanent impairment as a result of his May 30, 1989 work injury. Claimant was performing his job and getting along without any apparent trouble prior to May 30, 1989. Page 12 Defendants have not shown any residue from any prior injury or impairment that was affecting claimant on May 30, 1989. Claimant does have limited transferable skills. It is unfortunate that he did not attempt to go along with the employer and attempt to perform the jobs offered to him. The undersigned also finds it unfortunate that the insurance carrier did not follow the doctor's advice and send the claimant to Dr. Weinstein at the University of Iowa for treatment under his program. They also did not try a TENS unit that had been recommended on more than one occasion. They did not provide any psychological help for claimant even though it was recommended. It is not unusual when a person is unemployed for some period of time that that person could get discouraged. As indicted earlier, the undersigned believes this is partly claimant's fault by hanging onto very rigid restrictions, particularly when there were less restrictions in existence and not attempting to work. There is blame on both sides in this regard. Taking into consideration those items that are to be considered for determining industrial disability, namely, claimant's pre and post May 30, 1989 medical and work history; his healing period, which in this case the parties have agreed with 61.286 weeks; education; intelligence; physical and emotional qualifications; wages prior to the injury and after the injury; location and severity of his injury; age; motivation; functional impairment; the fact the employer did offer claimant work; and, claimant's lack of making a concerted effort to find work. The undersigned realizes that when claimant would apply for a job, if he put Dr. Johnson's restrictions on the application it would be expected that he would not be hired, but since July 1, 1992, the new Americans With Disabilities Act could prevent this discrimination. Claimant should look for employment. In regards to any restrictions, the undersigned finds there is apparently some lifting restriction but there is no pound amount involved that would be considered a current amount. It would be fair to say that in no circumstances would it be more than a 25 pound limit and the undersigned does not believe that the current status of claimant's condition and the current status of the medical testimony would call for that much of a limited restriction currently. Therefore, considering all of the above, the undersigned finds claimant has an industrial disability in the amount of 25 percent. Said benefits shall be paid at the stipulated rate of $229.56 per week with benefits beginning May 3, 1991. The parties originally stipulated in their prehearing report to a $225.09 rate based on two exemptions. After the hearing started, claimant testified to having two dependent children. The undersigned interrupted the hearing and the parties then agreed there were four exemptions. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of May 30, Page 13 1989, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing Page 14 period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. It is further concluded that: Claimant incurred an industrial disability work injury on May 30, 1989, which caused claimant to incur various healing periods and permanent partial disability. Claimant has a loss of earning capacity caused by his May 30, 1989 injury. Claimant does lack motivation. This Page 15 lack of motivation has caused claimant to have less loss of earning capacity than he might otherwise have. Claimant's only current restriction is a weight restriction. The extent of the weight restriction is not definitely determined as to a current status but would not be more restrictive than a 25 pound weight limit. Defendant employer made a good faith effort to accommodate claimant and attempted to provide claimant with employment that would fit within any restrictions that existed at the time of the offer. Any benefits are to be paid at the rate of $229.56 based on four exemptions and a gross weekly wage of $345.60. order THEREFORE, it is ordered: That defendants shall pay claimant one hundred twenty- five (125) weeks of permanent partial disability benefits at the rate of two hundred twenty-nine and 56/100 dollars ($229.56) per week beginning May 3, 1991. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid sixty-one (61) weeks of permanent partial disability benefits at the rate of two hundred twenty-five and 09/100 dollars ($225.09). They had also paid sixty-one point two eight six (61.286) weeks of healing period benefits at the rate of two hundred twenty-five and 09/100 dollars ($225.09) that was owed to claimant as agreed to by the parties. These should have been paid at the rate of two hundred twenty-five and 56/100 dollars ($229.56). That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr William J Bribriesco Attorney at Law 2407 18th St Ste 202 Bettendorf IA 52722 Page 16 Mr Jeff Margolin Attorney at Law 2700 Grand Ave Ste 111 Des Moines IA 50312 5-1108.50; 5-1803 Filed December 9, 1992 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : DAVID A. SPARKS, : : Claimant, : : vs. : : File No. 921128 E.J. BRACH CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ZURICH-AMERICAN INSURANCE, : INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803; 5-1108.50 Claimant found to have 25% industrial disability which was caused by his May 30, 1989 work injury. 5-1803 Filed April 30, 1992 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : JUDY KRAUS, : : File No. 921487 Claimant, : : vs. : A R B I T R A T I O N : K-MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ 5-1803 Claimant awarded 100 weeks of permanent partial disability based on a 20% industrial disability to the body as a whole. Permanent impairment rating was 7%, claimant was restricted to light work into the indefinite future, claimant was restricted to working only four hours per day and three days per week into the indefinite future. Claimant was young, age 26, high school diploma and received a BA in college while recuperating from this injury. Claimant had a variety of former employment she could still perform. Employer was very generous in providing accommodated work at the place of injury and the later city where claimant moved after she was married. Claimant's wage loss from employer was 40% but since graduation she can substitute teach part-time one or two days a week which she could not do before the injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DANIEL M ROBERTS, : : Claimant, : : vs. : : File No. 921538 MAY TRUCKING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Daniel M. Roberts against his former employer, May Trucking, based upon an alleged injury of June 27, 1989. The issues for determination are whether there was an injury which arose out of and in the course of employment. The claimant seeks healing period and permanent partial or permanent total disability compensation. Claimant also seeks payment of medical expenses. It was stipulated that the rate of compensation is $186.63. The parties used the incorrect benefit schedule. The correct rate based upon the stipulated earnings is $186.40 per week. The case was heard at Des Moines, Iowa, on September 14, 1993. The record consists of testimony from Daniel Roberts and Lyle Johnston. The record also contains joint exhibits 1 through 18 and defendants' exhibit B. FINDINGS OF FACT Daniel M. Roberts was employed by May Trucking from late March until late June 1989. Roberts testified that on June 27, 1989, he was cranking down the dolly of the trailer in order to unhook from it when a fork lift was driven into the trailer, without his knowledge, stopping his cranking activities sharply. He testified that it felt like he had been stabbed in the lower back. Roberts telephoned the dispatcher and returned to Des Moines, Iowa. He entered into a course of medical care in Des Moines, Iowa. Daniel Roberts had only been in Iowa for a few months. His customary place of residence has been in the state of Tennessee. He returned to Tennessee and entered into a course of medical care under the direction of Robert J. Smith, M.D., an orthopedic surgeon who had previously treated him for a severe left leg injury. Page 2 The record in this case clearly shows that Daniel Roberts has developed a Darvon dependency and that it existed long prior to the date of the injury which is the subject of this case. (joint exhibits 12 & 16). The records in evidence show that Roberts was seeking Darvon prescriptions on an almost weekly basis and was seeing more than one physician during the same period of time in order to obtain multiple prescriptions. The objective diagnostic tests which have been conducted have been uniformly interpreted as normal. There are a few isolated test results which have been interpreted as possibly showing an anatomical problem, but those test results have not been uniformly reproducible. Accordingly, the greater weight of the evidence indicates that there was no anatomical problem in the claimant's back. The greater weight of the evidence tends to indicate that claimant made continued complaints in order to feed his Darvon habit. Claimant treated with Dr. Smith because he supposedly had a great deal of confidence in Dr. Smith as a result of the treatment of the previous leg injury. After reviewing all the evidence in the record of this case the undersigned likewise has a high opinion of Dr. Smith. It is found that Dr. Smith is correct in his reports found at pages 118 through 120 of exhibit 16. Namely, that the claimant had reached maximum medical improvement on or about January 19, 1990, that he was physically capable of returning to his former job as a truck driver and that he had no permanent impairment as a result of the alleged injury in this case. The assessment by Dr. Smith is corroborated by the assessment of this case made by John H. Kelly, M.D., a Des Moines, Iowa, orthopedic surgeon. The undersigned finds that the assessment made by Dr. Kelly at pages 29 through 35 of joint exhibit 3 is correct. The credibility of the claimant's complaints in this case is highly suspect. The fact that the surgery made no substantial change in the claimant's complaints is considered by the undersigned to be very strong evidence that the condition the surgery addressed was not the source of the claimant's complaints. It is also noted that according to the claimant he moved to Iowa because of a relationship with a lady friend and that he left Iowa because the relationship had ended. The record does not contain a reliable showing of the point in time at which the relationship ended. In particular, it is does not show whether it was before or after the date of the alleged injury. Having observed the claimant's appearance and demeanor and considered it in light of the other evidence in the record of this case, it is found that the claimant has failed to establish that he is a reliable, credible witness. When all the evidence in the record of this case is considered, it is determined that the claimant has failed to show by a preponderance of the evidence that it is probable that he sustained any significant injury on or about June Page 3 27, 1989. The incident which he described at hearing is not the type of event which would be expected to cause serious, if any, injury. The event was unwitnessed by any disinterested persons. In early March 1989, claimant obtained a prescription of Darvon for back complaints with right leg pain. (ex. 17, p. 122). Nevertheless, the claimant apparently convinced Dr. Kelly that he had an injury. It is therefore found that claimant did injury his back in the manner described at hearing. It is further found, however, that he had recovered from that injury no later than January 19, 1990, in accordance with the report from Dr. Smith. (exhibit 16, page 141). With regard to the medical expenses it is found that any expenses incurred by Roberts subsequent to January 19, 1990, were probably not incurred in obtaining treatment for the June 27, 1989 injury. They appear more likely to have been efforts on his part to maintain his Darvon addiction. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Page 4 A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. Aggravation of a preexisting condition is one manner of sustaining a compensable injury. 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). In this case the claimant's credibility is not well established. Accordingly, little weight can be given to his testimony, statements and complaints where independent corroboration is absent. With regard to the occurrence of the injury itself, there is considerable question since the incident to which the injury is attributed does not appear to have been particularly traumatic and also due to the fact that it was unwitnessed. Nevertheless, claimant saw medical practitioners who did not dispute the fact of injury. Accordingly, it is determined that the claimant has carried the burden of proving by a preponderance of the evidence that he sustained an injury on June 27, 1989. The nature and extent of the injury is disputed. It is determined that the claimant has failed to prove by a preponderance of the evidence that any permanent disability resulted from the injury. To to contrary, the record of this case seems to indicate that the claimant engaged in a long and continuing course of medical care for the apparent purpose of obtaining prescription medications, a practice which had been ongoing prior to the injury in this case. The objective diagnostic tests have not generally corroborated the existence of any significant of permanent injury. In view of the intervening time between 1989 and Page 5 when surgery was performed, there had been ample opportunity for the claimant to experience other trauma. The Las Vegas incident is only one such trauma. In view of the claimant's lack of credibility, he is unable to establish the lack of any intervening trauma or even the accuracy of his description of the Las Vegas incident. The greater weight of the evidence corroborates the assessments of the case made by Dr. Smith, namely that claimant was able to return to his work as a truck driver as indicated in the January 19, 1990 report. (ex. 16, p. 119). Earlier reports had indicated that "...we're about to reach the point of maximum improvement..." The report of January 19, 1990, is the first which indicates that maximum improvement has been obtained and that there is no permanent impairment. Accordingly, that report marks the end of the claimant's entitlement to temporary total disability compensation. There is certainly evidence in the record which could be relied upon to indicate that the period of recovery actually ended much sooner, but Dr. Smith provides medical corroboration of the end and medical corroboration is the controlling factor. Pitzer v. Rowley Interstate, N.W.2d No. 290/92-776, (Ia. Ct. App. 1993); Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981). It is recognized that the cases cited deal with healing period under section 85.34(1), but the determination is the same as provided for temporary total disability under section 85.33 with the exception of those injuries which result in permanent disability of some extent. The temporary total disability entitlement in this case is ended by claimant being medically capable of returning to substantially similar employment as determined by Dr. Smith. The date of injury in this case is June 27, 1989. From June 28, 1989 through January 19, 1990, is a span of 29 3/7 weeks. As established by stipulation of the parties, claimant had been paid 28 weeks of compensation at an incorrect rate. He was overpaid by $6.44 based upon 28 weeks of payments. In accordance with this ruling he is entitled to recover another 1 3/7 weeks of benefits, together with interest pursuant to section 85.30. In making payment to claimant, defendants are entitled to offset the $6.44 which was overpaid due to making payments at an incorrect rate. 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 Page 6 the Industrial Commissioner 78 (Review-reopen 1975). The claimant's burden is to show that the treatment he received was reasonable, necessary and proximately caused by the injury. In this case, it is has been determined that his recovery from the injury was complete no later than January 19, 1990. It has been further determined that the injury produced no permanent disability. Accordingly, the need for further medical care would be very unlikely. Accordingly, it is determined that any medical expenses incurred by the claimant subsequent to January 19, 1990, have not been shown to have been proximately caused by the injury. The evidence indicates that they are more likely a result of claimant's drug seeking activities or intervening events. With regard to the few expenses for prescription medications which predate January 19, 1990, it is found that those are also manifestations of the claimant's drug-seeking activities. Accordingly, he has failed to prove that they were reasonable and necessary. He has likewise failed to prove by a preponderance of the evidence that the prescriptions were proximately caused by the injury. Accordingly, claimant is not entitled to any recovery in this case under the provisions of section 85.27. ORDER IT IS THEREFORE ORDERED that defendants pay Daniel M. Roberts one and three-sevenths (1 3/7) weeks of compensation for temporary total disability at the rate of one hundred eighty-six and 40/100 dollars ($186.40) per week payable commencing January 10, 1990. Defendants are entitled to credit in the amount of six and 44/100 dollars ($6.44) for the overpayment made due to past benefits being paid at an incorrect weekly rate. The remaining unpaid past due balance shall be paid to the claimant in a lump sum together with interest. It is further ordered that claimant take nothing further in the proceeding in the way of medical expenses. It is further ordered that each party pay the costs incurred by that party in participating in this proceeding. Neither party shall recovery costs from the other. Page 7 Signed and filed this ____ day of December, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Burns Davison III Attorney at Law 620 Hubbell Bldg Des Moines, Iowa 50309 Mr. Terry Monson Attorney at Law 100 Court Ave STE 600 Des Moines, Iowa 50309-2231 1401 1402 Filed December 14, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DANIEL M ROBERTS, Claimant, vs. File No. 921538 MAY TRUCKING, A R B I T R A T I O N Employer, D E C I S I O N and TRAVELERS INSURANCE CO., Insurance Carrier, Defendants. ___________________________________________________________ 1401 1402 Claimant's credibility was successfully attacked. His testimony and complaints were held to be unreliable and lacking corroboration. The claim for extended healing period and medical expenses acquired over a number of years was denied. Page 1 before the iowa industrial commissioner ____________________________________________________________ : NANCY FREILINGER, : : File No. 921556 Claimant, : : vs. : A R B I T R A T I O N : K-MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured : Defendant. : : ___________________________________________________________ statement of the case This case came on for hearing on April 8, 1991, in Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on June 19, 1989. The record in the proceeding consists of the testimony of the claimant, claimant's husband, Lloyd Freilinger, and Julie Freimuth. issues The issues for resolution are: 1. Whether claimant's alleged disabilities are causally connected to her June 19, 1989 injury; 2. The nature and extent of claimant's disability and entitlement to disability benefits; and, 3. Whether claimant is entitled to 85.27 medical benefits, the issue being causal connection and authorization; findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 50 year old high school graduate who has had no other formal education. She described her prior work history before beginning work with defendant in October 1987. This prior history included working at Collins Radio making plugs, working as a sales clerk at a Sears and K's Merchandising store, as a kitchen helper in a school cafeteria, and as a hospital laundry aide. Claimant described her position with defendant, beginning as a cashier. She said she had no low back problems at that time. On June 19, 1989, claimant was at her cashier's Page 2 position helping a customer who was purchasing five large stacked soft textile garbage cans. As a store policy, claimant was required to separate these garbage cans to make sure there was nothing hidden in the bottom of the cans. Claimant explained the difficult time she was having trying to pull and push the cans to separate them as the suction pressure was resisting her efforts. Claimant said she suddenly felt a sting in her low back below the belt. Claimant testified she told the company personnel but con tinued to work. Claimant was then off around the end of June and was sent to Charter Hospital as she could not stand the pain any longer. Claimant said she was told to see a chiropractor. Claimant indicated that since she had a wedding in Marion, Iowa, to attend, she saw a chiropractor while there. Shortly thereafter, on July 7, 1989, claimant and her husband drove to California for a two weeks vacation. Claimant contends her back was "killing her" at that time. Claimant was very confused in her testimony. Defendant sent claimant to Peter D. Wirtz, M.D., who claimant contends did her no good. She related the doctor checked her legs and asked her to bend over and she said she didn't want to bend over. The doctor prescribed no medicine and took no x-rays. Claimant said she then went to her family doctor, David E. Swieskowski, M.D., as she was getting no relief. He recommended a CT scan and referred claimant to Scott C. Erwood, M.D., a neurologist who had an MRI taken. Claimant indicated a bulging disc was found. Claimant described her course of treatment which included physical therapy, walking, certain exercises and medicine. Claimant indicated on December 12, 1989 Dr. Erwood returned her to work cashiering one-half days beginning January 2, 1990. Claimant said she got along fine but hurt. Claimant said she then went to Alfredo Socarras, M.D., for exam and treatment. Claimant said that by this time she was emotionally frustrated and things were troubling her. Claimant left work again on May 5, 1990, as she indicated she incurred another work injury to her arm. She then contended she left work due to her low back problems she was having and because of her left arm injury. Dr. Swieskowski then referred claimant to a psychologist as the pain was getting her down. Claimant eventually went to a total of three psychologists. She said no medicine was prescribed. Claimant contends she received no relief from her pain. Claimant has not worked since May 5, 1990, and she insists she cannot work day in and day out due to the pain in her right buttock area. Claimant said she did not know if Dr. Swieskowski returned her to work August 16, 1989 (Defendant's Exhibit A). It appears the date of August 16, 1988 is a mistake and is meant to be 1989. Claimant never saw this doctor for complaints in 1988. Claimant acknowledged that no doctor gave her an Page 3 impairment rating. On cross-examination, claimant admitted she was in a car accident on June 26, 1989, and two days later went to the Charter Hospital. She acknowledged she told Julie Freimuth, personnel training manager for defendant, about her garbage can incident ten days after it happened. The undersigned notes this would be June 29, 1989, which is three days after her car accident. The undersigned notes in claimant's deposition that claimant's arms were hurting bad in her elbows and that it went up into her shoulder (Def. Ex. A, p. 28). It doesn't appear that claimant told any of the other doctors about this car accident on June 26, 1989, when she related the history to them. Claimant was asked about Claimant's Exhibit 1, page 3, and her complaint of June 28, 1989, that she did some painting two weeks before and was in all kinds of bending positions and her back has been hurting since then. This painting incident would have occurred around June 14, 1989, which is five days before claimant's alleged June 19, 1989 injury at defendant's place of business. From this record of Dr. Swieskowski, it appears claimant did not relate a work injury to the doctor until the October 11, 1989 appointment. Claimant contends her painting was done on her mother-in-law's porch and did not require bending. Claimant seemed surprised as to how this got into her medical record. The undersigned can understand claimant's alarm as she suppressed this information from her doctors when she could and instead blamed her condition on a June 19, 1989 work injury. Claimant said she has not seen a doctor since her January 24, 1991 deposition and has no future appointments scheduled. Claimant acknowledged she was never a full time employee for defendant and worked 20 to 25 hours a week. On May 5, 1990, claimant gave defendant a two week notice that she was going to quit. The reason was for medical problems due to her elbow and back. Claimant has not worked since. Lloyd Freilinger, claimant's husband, testified that claimant's health prior to working for K-Mart was good. He said claimant's condition is a lot better most of the time but she has to be very careful. He indicated claimant may go three weeks without problems and then they come again. He said that since June 19, 1989 claimant has been having trouble getting into the right side of the car and she experiences anger and has temperamental changes. He said he and his wife discussed her quitting K-Mart as she doesn't have to work, but she wanted to do something. He was asked several questions as to the numerous doctors claimant saw. Julie Freimuth, personnel training manager for defendant for the last seven years, has been employed by defendant for the last thirteen years total. She said claimant told her of an injury seven to ten days after it allegedly occurred and authorized care was then discussed. She said K-Mart doesn't authorize chiropractors but did for the first time in claimant's case. Claimant has missed no raises and has always been a part-time employee. Ms. Freimuth emphasized that defendant accommodated Page 4 claimant's restrictions. She said claimant was back to normal January 1990, and that there was no problem until claimant gave a two week notice due to her arm problem she developed and quit in May 1990. Ms. Freimuth said that up to January 5, 1990, she periodically checked with claimant as to how she was doing and she related claimant never claimed any back problems. She related again that claimant gave as her medical reason for quitting that her arm was bothering her from an arm injury. She said that claimant was making $4.80 in May 1990. Her pay today would be $5.00 to $5.30 per hour with the cost of living increases. Claimant saw T. R. Sherman, D.C., around the end of September 1990, and he told her she could return to work on September 5, 1989 (Def. Ex. A, p. 48). She said Dr. Wirtz also told her she could return to work on September 5, 1989 (Def. Ex. A, p. 49). Claimant described the many things she can and cannot do (Def. Ex. a, pp. 58-59). Claimant said she knew of no restrictions given to her by any doctors (Def. A, p. 59). Claimant's Exhibit 2 reflects that she sought medical treatment June 28, 1989, for back pain from apparently painting two weeks before and that she had been hurting since that time. The undersigned notes that the index of the exhibits show that these were Dr. Swieskowski's notes and yet later on the medical records indicate that Dr. Swieskowski never saw claimant until October 1989. The undersigned cannot tell what doctor noted that in the records as reflected in Claimant's Exhibit 2. The same notes on October 11, 1989 reflect claimant's contention she injured her back at work in June. These notes thereafter beginning on April 11, 1990, show right elbow pain was also beginning. Mercy Medical Clinic notes of July 24, 1989 reflect claimant's low back complaints occurring approximately one month earlier which she attributes to the garbage can incident at work. She mentioned nothing about her painting which she originally claimed occurred on June 14, 1989, approximately one month earlier (Cl. Ex. 4). Claimant's Exhibit 7 reflects Dr. Wirtz's diagnosis was "resolved low back pain, muscular." Claimant was given a return-to-work slip for September 5, 1989 at this time. Again, claimant never mentioned her painting episode or automobile accident so this doctor never had the benefit of a true injury history of claimant. Dr. Sherman gave claimant a return-to-work slip on September 1, 1989, for a September 11, 1989 return to work (Cl. Ex. 8). Claimant's Exhibit 10 MRI reflects claimant had an L5- S1 evidence of disc degeneration disease. Dr. Erwood, a neurosurgeon, indicated claimant's MRI showed the above did not appear to compress the nerve root and did not think this was a surgical lesion. Page 5 On January 8, 1990, Dr. Socarras, a neurologist, examined claimant and concluded she had a degenerative disc disease at L5-S1 interspace with asymmetric noncompressive protrusion on the right. He detected no neurological deficit or signs of radicular involvement at that time and gave her some restrictions (Cl. Ex. 19, pp. 30-33). On April 23, 1990, it appears claimant was having increased elbow problems and was given "no heavy lifting restrictions" and return to light duty April 24, 1990. (Cl. Ex. 20-22) On July 10, 1990, a licensed psychologist, Allen F. Demorest, M.A., through referral from Dr. Swieskowski for a pain center evaluation, wrote the claimant does have some adjustment disorder and noted with interest that claimant wasn't having back problems, but was having arm pain from her tendonitis and that resulted in her decision to quit work. His treatment plan suggested she be seen for psychiatric evaluation and MMPI (Cl. Ex. 23). The undersigned notes that claimant gave an incomplete medical and injury history to this doctor, also. Claimant's Exhibit 29 is obviously originated to show a causal connection of claimant's complaint to claimant's June 19, 1989 alleged work injury. The doctor indicated it was difficult for him to comment on this but he did anyway. Dr. Swieskowski said he didn't see claimant until October 1989. The first entry in Claimant's Exhibit 2 is a June 20, 1989 note. It is obvious that if Dr. Swieskowski's August 28, 1990 letter (Cl. Ex. 29) is to be taken as correct, then Claimant's Exhibit 2 is not Dr. Swieskowski's notes, as reflected in the claimant's index to exhibits, at least in total. Claimant's Exhibit 29 further shows that Dr. Swieskowski did not know that claimant injured her back while painting on June 14, 1989, or that she was in an automobile accident in June 1989 and, therefore, the doctor did not have a correct and honest medical history of claimant when he was struggling to write his letter requesting a causal connection. Claimant's Exhibit 30 is of interest. This reaffirms the consistent action of claimant in not disclosing the entire injury and medical history and also shows her actions which add confusion to her contentions. The undersigned is disturbed by the consistent failure of the claimant to relate her medical injury history to her treating or examining doctors. The only causal connection in the evidence is Dr. Swieskowski's August 28, 1990 letter (Cl. Ex. 29). As indicated earlier, it is apparent he had problems concluding a causal connection and did so reluctantly. It is also obvious he did not have all the medical history of claimant. There is insufficient evidence that claimant incurred any permanent injury or any permanent impairment. Although permanent impairment is not necessary to determine an industrial disability, the claimant has failed in her burden of proof to show that a June 19, 1989 injury was the proximate cause of her current alleged disabilities and Page 6 medical condition. The parties stipulated to an injury that arose out of and in the course of claimant's employment on June 19, 1989. The undersigned finds that on June 19, 1989, claimant did receive an injury that resulted in claimant being off work on June 30, 1989 to and including July 7, 1989, and August 19, 1989 to and including September 4, 1989, amounting to 3.571 weeks. Claimant has the burden of proof to show causal connection between her alleged injury and her alleged disability and medical condition. The undersigned can feel sorry for claimant's apparent condition. Likewise, sympathy is not the rule of law. As to the 85.27 issue concerning medical benefits, the undersigned finds that the medical bills that are in question and are represented by claimant's exhibit 32 were not causally connected to claimant's June 19, 1989 injury. Additionally, they were not authorized. Claimant takes nothing further from these proceedings. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of June 19, 1989 is causally related to the disability on which she now bases her 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 v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an Page 7 aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). It is further concluded that: Claimant incurred a work-related temporary total disability on June 19, 1989 which contributed to claimant being off work June 30, 1989 to and including July 7, 1989, and August 19, 1989 to and including September 4, 1989, amounting to 3.571 weeks. Claimant incurred a nonwork injury on June 14, 1989, resulting from painting her mother-in-law's porch, which injury substantially and materially contributed to and aggravated claimant's L5-1 degenerative disc disease. Claimant has no permanent partial impairment or disability as a result of a June 19, 1989 work injury. Defendant is not responsible for claimant's medical bills as represented by claimant's exhibit 32, as there was no authorization and there is insufficient evidence to show that they are the result of a June 19, 1989 work injury versus a June 14, 1989 nonwork injury. Claimant was not credible in relating her complete material medical and injury history to her treating and/or examining doctors. Page 8 order THEREFORE, it is ordered: That claimant is entitled to three point five seven one (3.571) weeks of temporary total disability benefits for the period beginning June 30, 1989 to and including July 7, 1989, and August 19, 1989 to and including September 4, 1989. The stipulated rate of eighty-three dollars ($83.00) per week is not correct. There is no such rate for a June 19, 1989 date with two exemptions. The parties did not set out a gross wage. The rate shall be eighty-three and 15/100 dollars ($83.15). Defendants shall receive credit for amounts paid. The parties stipulated that defendant has already paid and shall receive credit for three point fifty- seven (3.571) weeks at the rate of eighty-four and 61/100 dollars ($84.61). That claimant shall take nothing further from these proceedings. That defendant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendant shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert W Pratt Attorney at Law 1913 Ingersoll Des Moines IA 50309-3320 Mr Joel T S Greer Attorney at Law 112 West Church St Marshalltown IA 50158 5-1402.40; 5-1402.20 Filed May 13, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : NANCY FREILINGER, : : File No. 921556 Claimant, : : vs. : A R B I T R A T I O N : K-MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured : Defendant. : : ___________________________________________________________ 5-1402.20; 5-1402.40 Claimant failed to carry her burden to show that her medical condition and alleged permanent disability was caused by her June 19, 1989 alleged injury. Claimant was allowed nothing further from these proceedings except to 3.571 weeks of temporary total disability to which the parties had stipulated. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ESTATE OF LARRY C. SMIZER, Claimant, vs. File No. 921767 D. BURSON TRUCKING, A R B I T R A T I O N Employer, D E C I S I O N and HARTFORD INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the estate of Larry C. Smizer, against his employer, D. Burson Trucking, and its insurance carrier, Hartford Insurance Company, to recover permanent partial disability benefits under the Iowa Workers' Compensation Act, as a result of an injury sustained on June 26, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa, on July 29, 1993. A first report of injury has been filed. The record consists of the testimony of Dennis Derr, R.N. and of joint exhibits 1 through 30. Both parties filed briefs subsequent to hearing. ISSUES Pursuant to the hearing report and the oral stipulations of the parties at hearing, the parties have stipulated to the following: (1) An employer-employee relationship existed between decedent and D. Burson Trucking on the date of injury; (2) Decedent did receive an injury which arose out of and in the course of decedent's employment on January 26, 1989; (3) Decedent's injury caused a period of healing period disability for which decedent was paid all benefits to which decedent was entitled; (4) The commencement date for any permanent partial disability benefits due decedent is February 15, 1990; (5) Decedent's June 26, 1989 injury did produce permanent partial disability; (6) Decedent was single and entitled to three exemptions on the date of injury; Page 2 (7) Entitlement to payment of medical costs under section 85.27 is no longer disputed; and (8) Defendants are entitled to credit for 48 weeks and two days of benefits paid at the rate of $295.03. Issues remaining to be decided are: (1) The extent of any permanent partial disability benefits due decedent to the date of his death; and (2) The appropriate rate of weekly compensation. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: The employee, Larry C. Smizer, was born on August 26, 1941. He died on May 28, 1992, in an alcohol-related motor vehicle accident. That accident did not arise out of and in the course of his employment. Mr. Smizer did have a motor vehicle accident arising out of and in the course of his employment on June 26, 1989 when a semi-tractor trailer that he was operating jackknifed and hit another vehicle. Employee Smizer initially was treated at an emergency room for abrasions and bruises on the lower extremities and then released. On approximately June 30, 1989, Mr. Smizer saw a physician's assistant with complaints of back pain. When these did not resolve, Mr. Smizer was referred to John J. Dougherty, M.D., an orthopedic surgeon. On September 6, 1989, Dr. Dougherty diagnosed claimant's condition as a lumbosacral sprain superimposed over degenerative discs at L4/L5 and L5/S1. Evidence of early degenerative arthritis was also present. A subsequent MRI revealed a central bulging disc at the L4/L5 space. Dr. Dougherty recommended that claimant use a back support, take prescribed anti-inflammatories, engage in an exercise program, and continue physical therapy with intermittent traction. On November 14, 1989, claimant saw Leonel H. Herrera, M.D., of Back Care, Inc. Dr. Herrera's impression was of myoligamentous injury. Dr. Herrera suspected that Mr. Smizer had healed well although he had remaining significant weakness and chronic deconditioning syndrome as a result of his inactivity. Dr. Herrera recommend an isokinetic, monitored rehabilitation program with participation three times per week. On January 16, 1990, Dr. Herrera opined that Mr. Smizer was at maximum medical improvement and opined the employee could return to work without risk of reinjury. Dr. Herrera stated that Mr. Smizer could return to truck driving shorter distances although he may not wish to drive long hauls. On January 8, 1990, Dr. Dougherty returned Mr. Smizer to work without restrictions. On January 26, 1990, Dr. Dougherty stated that perhaps claimant should be limited Page 3 from excessive bending, twisting or lifting. On February 26, 1990, Dr. Dougherty assigned claimant a permanent partial impairment rating of 3 percent of the body as a whole. The record reflects that claimant had dorsal back pain in 1962. There is no other evidence of back pain prior to the date of the work injury. Dennis E. Derr, R.N., vocational rehabilitation specialist, worked with Mr. Smizer in Fall 1989. Mr. Derr ended his work with Mr. Smizer in early Spring 1990, when Mr. Smizer indicated that he did not need vocational rehabilitation assistance and that he had had job offers for seasonal work as a gravel truck driver and as a ready-mix driver. At hearing, Mr. Derr opined that driving dump and gravel trucks on county roads would likely be rougher and more jarring driving than driving over-the-road for a semi-trailer operation. He acknowledged, however, that dump and gravel hauling would likely be done within a 50 mile radius. Mr. Smizer's regular haul for Burson Trucking had been from Omaha to New Orleans and back. It had involved occasional loading and unloading. In his deposition, Mr. Smizer had expressed concern about doing longhaul trucking after his injury. Mr. Smizer's concerns are consistent with the statements of Dr. Herrera in January 1990. Mr. Smizer was a high school graduate who had spent two years in the army reaching the rank of Enlisted Personnel 4. Prior to beginning work with Burson Trucking, he had worked as a farmer, a farmhand, and as a gravel hauler. Mr. Smizer owned about three acres of land in a small village. He kept some sheep and cattle on the acreage. Subsequent to his injury, he had moved a house onto the acreage. Mr. Smizer, in his deposition, reported that he hired work done on the home and that his two teen-age sons who resided with him tended the sheep and cattle. Nothing in the record suggests that Mr. Smizer was not truthful in this regard. At some point, Mr. Smizer had apparently approached another Burson employee and discussed the possibility of the two of them entering a joint venture in livestock buying and selling. This venture apparently never came to fruition. The evidence in the record is insufficient to suggest that Mr. Smizer had either the experience, intellectual acumen, or financial capabilities necessary to engage in such a business successfully. Before beginning work with Burson Trucking, apparently in 1988, Mr. Smizer had earned $4.35 per hour or less doing seasonal work in either farming or gravel hauling. Mr. Smizer had annual earnings of $21,778.52 with Burson in 1988; he had annual earnings of $10,474.74 with Burson through June 26, 1989. Mr. Smizer earned $12,151.90 in 1990 as a seasonal gravel hauler. Mr. Smizer earned $7,347.36 as a ready-mix hauler in 1991 and $644.60 as a gravel hauler in 1991. Mr. Smizer was off work and did not receive pay for work during the week of April 29, 1989. Mr. Smizer was off work and did receive vacation pay of $450 during the week of Page 4 June 17, 1989. The week of April 29, 1989, is a nonrepresentative week for rate purposes. It cannot properly be considered in calculating 13 weeks worked immediately preceding the injury date. The vacation pay of $450 received for the week of June 17, 1989, is a representative amount of pay and can properly be considered in seeking representative weeks for rate purposes. Decedent Smizer's rate, therefore, must be calculated using the weeks of June 24, 1989, June 17, 1989, June 10, 1989, June 3, 1989, May 27, 1989, May 20, 1989, May 13, 1989, May 6, 1989, April 22, 1989, May 15, 1989, April 8, 1989, April 1, 1989, and May 25, 1989. Mr. Smizer had total gross earning of $6,193.08 for those quoted 13 weeks. The included 13 weeks are properly divided by 13 and not 14 as the excluded week cannot be properly considered. When the included 13 weeks are divided by 13, Mr. Smizer had average weekly earnings of $476.39. As a single person entitled to three exemptions Mr. Smizer's rate of compensation then was $295.03. CONCLUSIONS OF LAW We consider the question of entitlement to industrial disability. 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. Employee Smizer had a very limited permanent partial impairment on account of his injury. Whether he had serious limitations regarding twisting, bending, and lifting is questionable. Some limitations regarding those activities would not be inconsistent with a low back strain superimposed on generative disc disease, however. The employee elected to not attempt longhaul driving after his work injury. That election was consistent with the opinion Page 5 of Dr. Herrera and, therefore, represents a reasonable job market restriction. The employee did return to work after the injury albeit not with the employer and not in a longhaul driving job. He returned to work which was consistent with his prior experience and capabilities, namely, local, shorthaul driving. The shorthaul driving was seasonal work. While a question was raised as to whether the employee voluntarily elected to do only seasonal work, it is not inconsistent with the types of shorter haul driving jobs available in communities such as that where the employee resided that those jobs primarily be seasonal work. The record reflects that claimant's greatest earnings were in longhaul driving. While it cannot be fully established that claimant's injury absolutely precluded his doing any longhaul driving, the record does demonstrate that longhaul driving would have been more difficult subsequent to the injury and perhaps would have required modifications such that the employee would have been precluded from a number of longhaul driving jobs. The employee had limited transferable work skills outside of farming and driving. The record, overall, does not establish that the employee was a serious candidate for retraining. When all facts are considered, it is found that the employee's injury produced a loss of earnings capacity equalling an industrial disability of 10 percent of the body as a whole. The commencement date for permanent partial disability benefits is February 15, 1990. A 10 percent permanent partial disability rating equals 50 weeks of benefits due. The employee died on May 28, 1992. Hence, all permanent partial disability benefits due the employee had accrued prior to his death. The employee's estate is entitled to payment of the total amount of benefits due. We consider the rate question. The basis of computation shall be the weekly earnings of the injured employee at the time of the injury. Where an employee is paid by the employee's output, weekly earnings are computed by dividing by 13 the earnings, not including overtime or premium pay, of the employee earned in the employ of the employer in the last completed period of 13 consecutive calendar weeks immediately preceding the injury. Section 85.36(6). Nonrepresentative weeks are not included in the 13 consecutive weeks. Short weeks are skipped and additional weeks are included until 13 completed consecutive weeks are accumulated for the calculation. Iowa Workers' Compensation Law, Lawyer and Higgs, section 12-4. Defendants' argument that the total should be divided by the total number of weeks from the injury, that is, including the skipped weeks in the dividing number even though earnings in those weeks were excluded is novel. It is also inconsistent with the law. Claimant's weekly rate of compensation is $295.03 as set forth in the above findings of fact. ORDER Page 6 THEREFORE, IT IS ORDERED: Defendants pay the estate of Larry C. Smizer permanent partial disability benefits for fifty (50) weeks at the rate of two hundred ninety-five and 03/100 dollars ($295.03) with those payments to commence on February 15, 1990. Defendants pay all accrued amounts in a lump sum and defendants pay interest pursuant to section 85.30. Defendants receive credit for permanent partial disability benefits previously paid. Defendants pay costs pursuant to rule 343 IAC 4.33. Defendants file status reports as required by agency rule. Signed and filed this ____ day of September, 1993. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Joe Cosgrove Attorney at Law 400 Frances Bldg. Sioux City, IA 51101 Mr. M. James Daley Attorney at Law 1109 Badgerow Bldg. P.O. Box 1828 Sioux City, IA 51102 5-1803 Filed September 9, 1993 Helenjean M. Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ESTATE OF LARRY C. SMIZER, Claimant, vs. File No. 921767 D. BURSON TRUCKING, A R B I T R A T I O N Employer, D E C I S I O N and HARTFORD INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Defendants ordered to pay accrued benefits equal to an industrial disability of 10 percent to the estate of injured worker. The worker had a mild permanent partial impairment on account of a low back strain with degenerative disc disease. He was able to return to work previously done as a shorthaul driver. His work with the employer had been longhaul semi-trailer driving. It appeared he would have had difficulty returning to that work. The employee's date of death was subsequent to the date on which all permanent partial disability benefits would have accrued. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ISAAC PLEDGE, Claimant, VS. File No. 921842 A. D. HOLST ROOFING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Isaac Pledge, claimant, against A. D. Holst Roofing Company, employer (hereinafter referred to as Holst), and Liberty Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on June 5, 1989. On August 20, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On June 5, 1989, claimant received an injury which arose out of and in the course of employment with Holst. 2. Claimant is entitled to temporary total disability or healing period benefits only from June 61 1989 through August 4, 1989 and claimant has been paid these benefits. PLEDGE V. A. D. HOLST ROOFING CO. Page 2 3. If the injury is found to have caused permanent disability, the type of disability is a scheduled member disability to the upper extremity. 4. Claimant's rate of weekly compensation as result of this injury shall be $94.96. 5. All requested medical benefits have been or will be paid by defendants. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to permanent disability benefits. FINDINGS OF FACT Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. The work injury herein involves second and third degree burns to the left forearm. These injuries occurred as a result of a burn from hot tar while claimant was working for the defendant roofing company. Claimant was treated by only one physician, William Eversman, M.D. After healing of the burn reached maximum improvement, the burns left a six inch by five inch scar at the top of the left forearm. The scar is quite thick. As a result of the work injury of June 5, 1989, claimant has suffered a 10 percent permanent partial impairment to the upper extremity. Claimant's uncontroverted testimony establishes that he experiences pain and loss of sensation especially when the left forearm is exposed to extremes of cold and heat. The scar cannot be exposed to direct sunlight. Claimant has limited his physical activities because the scar hurts when it is struck. Although Dr. Eversman stated in his last report that he could not assign an impairment to the arm, he also stated that the arm is "not the way it was" and that claimant will have to modify his use of the arm in physical activity. He also stated that claimant will continue to experience pain and symptoms from the scarring for the rest of his life. Dr. Eversman stated that claimant must take particular care to avoid sunlight due to the risk of injury to the healed burn. PLEDGE V. A. D. HOLST ROOFING CO. Page 3 CONCLUSIONS OF LAW Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960) ; Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983). Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case sub judice, the treating physician failed to assign an impairment rating. However, this was not fatal to the claimant's case for establishing a loss of use. This agency is aware of various guidelines such as those published by the AMA which is recognized in our agency rules that provide the means to rate loss of use due to pain, loss of sensation and avoidance of use due to environmental conditions. From the evidence presented, it is found that claimant has suffered a 10 percent permanent partial loss of use to his arm. Based upon such a finding, claimant is entitled as a matter of law to 25 weeks of permanent partial disability under Iowa Code section 85. 34 (2) (m) which is 10 percent of 250 weeks, the maximum allowable for an injury to the arm in that subsection. Given the stipulation as to the extent of the healing period, these permanent disability benefits will begin on August 5, 1989. ORDER 1. Defendants shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of ninety-four and 96/100 dollars ($94.96) per week from August 5, 1989. 2. Defendants shall pay accrued weekly benefits in a lump sum. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. PLEDGE V. A. D. HOLST ROOFING CO. Page 4 4. Defendants shall pay the cost of this action pursuant to Division of Industrial Services Rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.1. Signed and filed this 6th day of December, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert F. Wilson Attorney at Law 810 Dows Bldg Cedar Rapids IA 52401 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 1803 Filed December 6, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ISAAC PLEDGE, Claimant, VS. File No. 921842 A.D. HOLST ROOFING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1803 Although the treating physician stated that he could not assign a permanent partial impairment rating to the injury, it was found from claimant's testimony and the doctor's statements as to claimant's loss of use that the claimant suffered a 10 percent permanent partial impairment to the arm as a result of the scarring from second and third degree burns to the upper arm.