BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ FRANCES OVERHOLSER, File No. 923661 Claimant, A P P E A L vs. D E C I S I O N U.S. WEST COMMUNICATIONS, INC., Employer, Self-Insured, Defendant. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed November 9, 1994, is affirmed and is adopted as the final agency action in this case, with the following additional analysis: At the time of the original settlement, the defendant employer was commendably accommodating claimant's condition. The award contained in the settlement contemplated claimant's ongoing employment. Claimant's loss of her job was due to an economic layoff. She was not discharged for any reason related to her work injury. The parties are in agreement that claimant has not suffered a physical change of condition. Claimant urges that she has suffered an economic change of condition justifying a review-reopening of her award. Normally, a layoff affects all workers equally and would not constitute a change of condition. See Seager v. Armour-Dial, Inc., IV Iowa Industrial Comm'r Report 313 (App. March 20, 1984). But for claimant, the effects of the layoff were greater because she relied on the accommodation of the employer, something she will now not enjoy when competing for employment in the job market. It is true that the defendant employer, by accommodating an injured worker, is not obligated to guarantee that worker a job regardless of what later developments affect the employer. An economic development requiring a layoff or even a plant closing may force the employer to layoff or discharge an injured worker who was previously being accommodated. When an employer discharges an employee for reasons related to the injury, that may constitute a basis for an award of industrial disability, or in the case of review-reopening, a further award of industrial disability. However, those facts are not present in this case. The record shows the claimant was one of over 70 employees laid off, and the layoffs were determined by seniority and the union agreement. Claimant was not laid off because of her injury. On the other hand, the original settlement of claimant's injury did contemplate the fact that claimant was being accommodated by the employer. That fact no longer exists. In effect, defendant was not required to pay all the disability caused by the original injury at the time of the settlement, because part of that disability was alleviated by the accommodation. Now, the accommodation no longer exists, and defendant must now pay the remainder of the disability caused by the original injury, as claimant is now suffering that additional disability as a result of her layoff status. Defendant employer is not being penalized for laying off claimant. It is recognized that the layoff was an economic necessity and done according to seniority and not because claimant had been injured. Claimant was instead laid off because the accommodation she previously enjoyed had to be withdrawn. Even though this was not an intentional increase of disability on the part of employer, nevertheless it was an increase of claimant's disability. Defendant employer enjoyed a benefit at the time of the settlement because of the accommodation; that benefit is now gone, and the full amount of the disability caused by the original injury must now be paid. Claimant has shown a change of condition. See Malloy v. Floyd Valley Packing Co., File Nos. 731149 and 750585 (App. August 26, 1992). Interest pursuant to Iowa Code 85.30 shall begin from the date of this decision. See Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957); Bird v. T.H.I. Command Hydraulics, Ruling on Adjudication of Law Points (January 30, 1990). Claimant and defendant shall share equally the costs of the appeal including transcription of the hearing. Signed and filed this ____ day of April, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Attorney at Law 1200 35th St STE 500 West Des Moines IA 50266 Ms. Sara J. Sersland Attorney at Law 1900 Hub Tower 699 Walnut Des Moines IA 50309 1803; 2905 Filed April 28, 1995 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ FRANCES OVERHOLSER, File No. 923661 Claimant, A P P E A L vs. D E C I S I O N U.S. WEST COMMUNICATIONS, INC., Employer, Self-Insured, Defendant. ___________________________________________________________ 1803; 2905 Found claimant incurred an additional 30% loss of earning capacity due to an economic change in her condition or status from the time of her December 1991 agreement for settlement for an October 1987 work injury. The parties agreed claimant still had the same 5% permanent body as a whole back impairment as she had at the time of the December 1991 settlement, so a change in physical condition was not an issue. Held, employer's accommodation of claimant in 1991 was a big factor in low industrial disability agreement when claimant now had no job and employer could not accommodate claimant. Employer downsized its work force and claimant had very low seniority. A layoff that results in the loss of an employer accommodation that was contemplated at the time of the original settlement or award constitutes a change of condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER -------------------------------------------------------------- FRANCES OVERHOLSER, File No. 923661 Claimant, vs. R E V I E W - U.S. WEST COMMUNICATIONS, R E O P E N I N G INC., D E C I S I O N Employer, Self-Insured, Defendant. --------------------------------------------------------------- STATEMENT OF THE CASE This case came on for hearing on October 29, 1994, at Des Moines, Iowa. This is a proceeding in review-reopening wherein claimant seeks additional permanent partial disability benefits as a result of a change in economic conditions since the last agreement for settlement. The record in the proceeding consists of the testimony of the claimant, Marlene Dotts, Mary Frances Brown, and Jan Hardcopf-Bickley; joint exhibits 1 through 7; and, defendants' exhibits A through W. ISSUES The issues for resolution are: 1. Whether there is a causal connection as to any increased disability; and, 2. The extent of claimant's increased disability, if any, and entitlement to additional disability benefits. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 54-year-old who finished the ninth grade and has her GED in Arizona and Iowa. She took a course at Area 11 as a legal secretary in 1971 or 1972 and took an incomplete in the course. At the time of claimant's injury on October 29, 1987, she was working for Northwestern Bell, which now is U.S.West Communications, Inc. The undersigned hereafter, when applicable, will refer to defendant employer as U.S. West Communications. Claimant worked most of her adult life as a homemaker raising her children until 1984. She related her limited job history and then in August 1984, she began working for defendant employer. She related the particular job she did for defendant employer. Claimant was injured on October 29, 1987. The parties stipulated that claimant's medical condition is not an issue herein. In other words, claimant in December of 1991 settled a work- related back injury in an approval of agreement for settlement and the parties now have further agreed that there has been no physical change in claimant's condition which would warrant any increase in award because of a physical change. Claimant had a 5 percent permanent impairment to her body as a whole and settled for 25 weeks of permanent partial disability benefits and her physical condition of her back in that regard is the same now. Claimant is contending there is an economical change. Claimant said she was receiving approximately $340 per week in 1987 and in December of 1991 when there was a settlement, she was making $450 per week. Claimant contends that at the time of the settlement in December 1991, she understood that she would still have a job in the future and that there was no hint of a layoff. It is undisputed as far as the claimant is concerned that her back injury is the same now as it was back in 1991. Claimant was laid off in July of 1993. She contends if there was no layoff she could still do her job today. The claimant seemed to indicate that she was laid off in her position but no one else was and there was reference to defendants' exhibit G, page 20. It appears from the facts that claimant had a very low seniority and of the apparent four persons in her category as general clerk, she was the lowest in seniority and began working in 1984. The next one closest to her began work in 1973. Claimant testified that she was willing to work and bugged defendant employer to work. She said she was willing to go to other cities in order to work. Claimant said she had a choice of either voluntary layoff or involuntary layoff and that she chose the involuntary layoff which meant that she would get half of the layoff severance pay but would have rights to recall. Claimant indicated it was this rights of recall that gave her a reason to choose the involuntary layoff procedure rather than voluntary. Claimant testified as to places she applied, a good many of which were through a list supplied to the claimant or made available to the claimant by defendant employer. There was considerable testimony concerning claimant's physical condition now and before and what she can do or cannot do as to her physical ability. The undersigned is not sure what importance that is in that the only issue herein as far as any changes in circumstances has to do with the alleged economic change of conditions and there has been no indication in the evidence or arguments of counsel that claimant's physical condition which they agreed is the same now as it was before as to her back and any body as a whole permanent impairment has nothing to do with claimant not obtaining work, making job applications, or being rehired by the defendant employer. The undersigned therefore sees no necessity going into detail as to the medical evidence herein. It appears claimant made a considerable number of contacts or applications for jobs within defendant employer's place of employment and as shown later by the employer's testimony there were not really any openings in most of those areas when she applied. There is no list in evidence nor did claimant testify as to the places that she then applied for jobs, except for a few isolated incidents. She said she couldn't find her list. Marlene Dotts has worked for defendant employer for 24 years and is the current supervisor. She described her duties and also what claimant's duties as a general clerk were. She said she knew of the December 1992 layoff letter prior to the layoff of claimant. She referred to defendant employer's exhibit G, page 1, which was a letter relating the downsizing of a company which is also referred to as a forced adjustment or a surplus declaration. She said the bargaining agreement determines how the adjustment is to be done and the particular jobs eliminated. She indicated claimant's job was not the only one eliminated as there were 56 others eliminated. It appears that of all those whose jobs were eliminated in this adjustment did obtain a position elsewhere within the organization, whether in the local area or having to move, except for the claimant and she had the lowest position in the company in addition to the lowest seniority. Mary Frances Brown testified she has been with defendant employer for 30 years as a staff consultant. She hires and places workers in job openings and vacancies and when there are surplus declarations or forced adjustments. She indicated there are forms the employees can bring for requests to be put in other jobs or sign an agreement if they are accepting the voluntary payment plan. She indicated the transfer rights of employees are controlled by the bargaining agreement and whether claimant could continue in her job. She sat down with all the other employees in December 1992 and told them of their rights and how to apply. One's wage schedule and position determines certain factors as to placement and she indicated claimant was in wage scale 9, which is the lowest paid job as a general clerk. There are actually two positions, 10 and 11, below her, but there are no openings in this area as they were also, in total, part of the surplus declaration. She went over the many jobs and categories and titles claimant has applied for that apparently were titles and positions within the defendant employer, but she indicated that only 10 percent of what claimant applied for actually existed in the area. Technically, there were only about 40 jobs that actually existed and claimant was qualified for less than 50 percent of these. In other words, there were only about 20 jobs claimant applied for that she was qualified to do. In those cases, there were no openings or claimant lacked experience or was low in seniority. She said claimant was eligible for training rights and that this training could be at any college or technical school for a 24 month period from the date of the layoff. Claimant did not apply for these but the undersigned can understand that one who is 54 years of age and with claimant's prior education or lack thereof would not be a good subject for college training or sophisticated education. Ms. Brown testified that claimant had some indication of possible job loss in 1991 because there were surplus declarations in her department as early as 1987. She referred to defendants' exhibit H, page 2 and 3. She acknowledged that not all of those individuals or positions referred to were laid off as some were placed in other jobs. She said the declarations are by title and that the union is notified of the surplus and sometimes the company newsletter will make reference to that. On cross-examination, Ms. Brown acknowledged that the average employee's time of service currently is 17 years. There is testimony of the number of jobs she applied for in towns like Ankeny and Cedar Rapids and apparently from the defendant employer's testimony the jobs didn't exist or there were no openings. Defendants' testimony seems to criticize claimant for applying for so many jobs when there were no openings and yet it seems contradictory in that the company seemed to have made no effort to indicate to the claimant that she was on a wild goose hunt or, in fact, the company through their actions in this area led her on such a wild goose hunt. It would seem to the undersigned that the company knew there were no jobs available. It also appears from defendants' testimony that claimant was doomed from the start as to hoping to work for defendant employer for very long. Jan Hardcopf-Bickley, a medical and vocational consultant for the past ten years, testified that she reviewed all the records, depositions and met with claimant. She indicated claimant's skills are still in the sedentary or sedentary- like category. She testified as to claimant's transferable skills and what she thought she could do and things she didn't think she could do. She indicated claimant really wanted a job and she has been attempting to find a job for claimant but she was only contacted by defendants to work with claimant on October 17, 1994, and her first interview with claimant was on Monday, October 24, which was two days before the hearing. She said claimant's ability to keep a job now versus the situation in 1991 is no different. She said claimant's record has been good as an employee. She said there would be no chance for claimant to get a job making what she was making in December 1991. The undersigned understands this was in the $12 to $13 per hour range. Ms. Bickley indicated that claimant would only likely get a job which starts around $5.50 with the medium being $7.75 to $8 per hour. Claimant had testified to the many fringe benefits she had at U.S. West and there was no indication that these jobs related by the rehabilitation consultant or the ranges included any fringe benefits at all. Ms. Bickley indicated that claimant's job seeking skills needed improvement and based this on the fact that claimant was unable to locate the list of employers with whom she had applied for jobs. Ms. Bickley felt that there needs to be follow-up when an application is made. She acknowledged that claimant being without work for 18 months can affect her job hunt, particularly at her age. She indicated it is harder to find a job if one is unemployed than if one is already employed and it is hard to explain to a future employer why one has been off 18 months. She acknowledged she contacted defendant employer as to a job for claimant and to put it bluntly she got the same type of statistical information or run-around that claimant apparently either experienced or indirectly experienced by chasing all those jobs and titles on a list given to her when in fact there were no openings. It is obvious from Ms. Bickley's testimony that claimant should get out on her own and not have any hope of being employed or taken back by defendant employer. She did indicate that the repetitive use of claimant's hands and upper extremities was a problem and there is no question this has nothing to do with any alleged injury herein but it is a fact that appears to have some undeterminable effect on certain jobs claimant might be able to obtain or desire. Michael Makowsky, M.D., testified through his deposition on October 20, 1994. (Defendants' Exhibit J) He testified he reviewed many records of claimant and set out in detail the various records and reports he reviewed. He said his practice is limited to occupational medicine. The undersigned does not see the need of going into detail as the parties agreed at the beginning of this hearing that claimant's physical condition of her back and any permanent impairment have not changed since her December 1991 settlement and, therefore, claimant's medical condition, not being an issue, is not important. The evidence is clear that there is no condition or residue from claimant's December 1991 medical condition that has changed which would affect claimant's ability to obtain a job or keep a job versus her condition in December 1991. The undersigned does note with interest notwithstanding what was said above that the March 31, 1993 report of Paul B. Johnson, M.D., and Thomas W. Bower, L.P.T., shows at that time when a functional evaluation was being done that claimant's conduct indicated a submaximal effort and there was a distinct magnification of symptom exaggeration and symptom magnification tendencies. This reflects on claimant's credibility and motivation. Claimant has the burden to show that she has suffered a greater industrial disability or a lesser earning capacity than she had in December 1991, at the time of her settlement. The parties agree that there has been no change physically. The undersigned will not look behind the understanding of the parties and their stipulations, notwithstanding the voluminous amount of medical that the parties submitted as exhibits, as if they were attempting to either disprove their stipulation or to support it. If it wasn't an issue, the undersigned sees no necessity of such voluminous medical documents, many of which preceded December 1991. The application for approval of agreement of settlement in December 1991 is very brief. From that document, one could not determine what was anticipated or for sure considered concerning claimant's job stability. The undersigned believes it would be common knowledge that defendant employer is known as a very stable and large employer. It is obviously a good company to work for considering what the claimant was making when she was working for them and considering the testimony that the average worker's time of employment currently with the company is 17 years as shown by defendants' oral evidence. It would seem that claimant would have every reason to believe there would be some stability in her job. Likewise, the employer has the right to downsize its company or make adjustments to aid the profitability. There was a union bargaining contract in existence and that also affects the manner in which certain surplus declarations or forced adjustments are carried out. There is no excuse for either side to blame the contract for problems they may have, whether they be problems on retaining employment or whether it be a manner in which jobs are eliminated or transfers or positions are filled. This is an agreement by the union on behalf of the workers and the company and there is no evidence other than the fact it was agreed to in good faith. That contract was in existence at the time of claimant's settlement agreement and a union contract was in existence at the time of this hearing. The current contract, as shown by defendants' exhibit G, was effective August 16, 1992, but there is no evidence that the union contract in existence in December 1991 was any different, at least materially, as far as the terms that are effective herein. It appears that the employees' income would rise periodically and there was testimony that claimant's income did substantially increase from the 1987 injury until December 1991 and at the time of her layoff. Defendant obviously takes the position that it cannot accommodate claimant because of the bargaining agreement as there are no openings or positions for which claimant is qualified or which due to her seniority she would be able to take over someone else, particularly with the downsizing that occurred. The fact is, claimant had a condition that affected her earning capacity at the time of her 1991 settlement for which she believes she received reasonable compensation. But, it is also fact that claimant had a job at which she had no reason to believe it was going to be eliminated within the next two years. Although the company had the right to eliminate the job, the fact is with claimant's medical condition it is not easy to get employment with a new employer and even more so with her lack of any real education or transferable skills. It also appears from the medical that claimant has some impairment from carpal tunnel or upper extremity cumulative injury and this also will and can have an effect on claimant's job opportunities. That is not an issue herein as to compensation for the same but it is a fact that the undersigned must consider in determining the total effect of claimant's total medical condition on her ability to find employment and the extent of any additional loss of earning capacity that might be attributed to her back condition only occurring in 1987. It appears clear to the undersigned that claimant has not been refused employment or has not been able to obtain a job because of her physical condition, and for sure because of any physical condition in excess or greater than at the time of her settlement in December 1991. One big change since 1991 is that we have an employer who cannot and is not able to now accommodate claimant based on the record we have herein where in 1991, they were accommodating the claimant and she was receiving substantial income notwithstanding her medical condition. It is no excuse that the union contract is affecting their ability to accommodate claimant in that that contract was triggered by the mere fact that the company decided to downsize or eliminate some of the positions. This is a right they had but this is affecting claimant as to her earning capacity. There is testimony that claimant could not expect to make close to what she was making at defendant employer and, in fact, she mostly likely would start around $5.50 and no more than $7.75 to $8. There is testimony that these positions would enable her to get certain increase in raises but that would be true with any company including defendant employer if she was employed there. There is testimony that claimant was offered the job on the day of her hearing or at least an interview and that she couldn't go because of the hearing date, and, that the vocational rehabilitation person who became involved just within two weeks of this hearing also had some job interviews set up for her. She seemed to indicate these might be promising. The fact is the undersigned cannot and will not speculate and claimant has not been found a job. Why the defendants waited until less than two weeks before the hearing to hire a vocational rehabilitation consultant is unknown. The undersigned must consider the facts as they exist as of the date of the hearing. It is obvious U.S. West will not, cannot and does not intend to take claimant back. It appears that any job that the vocational rehabilitation consultant was talking about would have been the low end of claimant's anticipated scale that she felt claimant could earn, which the undersigned believes would probably start off in the area of $5.50 up to $7.75. The undersigned reiterates that he finds claimant was not rejected as to a job on account of any effects of her back injury. The undersigned also believes that there is a disincentive for claimant to be very active seeking employment when she is receiving weekly or biweekly amounts of unemployment. The undersigned finds that the fact of claimant being accommodated by the defendants and having a very good and substantial job considering her skills and education was or would have been an important factor in the amount of settlement claimant agreed to in December of 1991. Accommodations by the employer is one of several factors to determine the extent of claimant's industrial disability or loss of earning capacity. This seems even more true when the undersigned sees that claimant agreed to a 5 percent industrial disability based on a 5 percent impairment to the body as a whole and had some general restrictions. It has become common knowledge and this agency's expertise that it is not too often that one's industrial disability is the same as one's body as a whole permanent impairment and it is very rarely less. Impairment is only one of many factors in determining one's industrial disability or loss of earning capacity. Again, the undersigned is not looking behind the reasonableness of the prior agreement but only wants to emphasize the fact that agreement based on the evidence in this case would leave the undersigned to believe the fact claimant had a very good job and was accommodated by the employer had to have been a very big factor. The agreement does not allude to this factor at all. Because the employer is no longer being able to accommodate the claimant and because of the evidence in this case concerning claimant's employment probabilities and the facts that exist at the time of the hearing, the undersigned finds that claimant has a substantially greater loss of earning capacity than she had on December 19, 1991. Taking into consideration claimant's medical condition has not changed since her settlement, her age, work experience, transferable skills, education, her wages at the time of the agreement, the fact that the employer was accommodating her and her income possibilities now, the nature of her injury and location, her motivation, and the company's inability to give claimant any work, the undersigned finds that claimant has currently a 35 percent industrial disability which means that claimant has 30 percent more loss of earning capacity than she had in December 1991, when she entered into her settlement. The undersigned further finds that this increase in industrial disability was caused by her October 29, 1987 work injury. Any benefits would begin from the day of this decision and interest would accrue therefrom also. CONCLUSIONS OF LAW Upon review-reopening, claimant has the burden to show a change in condition related to the original injury since the original award or settlement was made. The change may be either economic or physical. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). A mere difference of opinion of experts as to the percentage of disability arising from an original injury is not sufficient to justify a different determination on a petition for review- reopening. Rather, claimant's condition must have worsened or deteriorated in a manner not contemplated at the time of the initial award or settlement before an award on review- reopening is appropriate. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a condition to improve to the extent anticipated originally may also constitute a change of condition. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978). Interest accrues on awards of permanent disability in review-reopening proceedings from a prior award or settlement from the date of the final agency decision awarding further review-reopening benefits. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). It is further concluded that: As a result of claimant's October 29, 1987 injury, claimant has an increase in industrial disability or loss of earning capacity since her settlement in December 1991. Said increase is the result of a substantial change in claimant's economical situation and not as a result of any physical change. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant one hundred fifty (150) additional weeks of permanent partial disability benefits at the rate of two hundred seventeen and 03/100 dollars ($217.03) beginning from the date of this decision. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30, from the date of this decision. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1994. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Channing L Dutton Attorney at Law West Towers Office 1200 35th ST Ste 500 West Des Moines IA 50265-5358 Mr George A Carroll Attorney at Law U S West Communications 200 S 5th St Room 1800 Minneapolis MN 55483-0001 Ms Sara Sersland Attorney at Law 1900 Hub Tower 699 Walnut Des Moines IA 50309-3947 1803; 2905 Filed November 9, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------------ FRANCES OVERHOLSER, File No. 923661 Claimant, vs. R E V I E W - U.S. WEST COMMUNICATIONS, R E O P E N I N G INC., D E C I S I O N Employer, Self-Insured, Defendant. ------------------------------------------------------------------- 1803; 2905 Found claimant incurred an additional 30% loss of earning capacity due to an economic change in her condition or status from the time of her December 1991 agreement for settlement for an October 1987 work injury. The parties agreed claimant still had the same 5% permanent body as a whole back impairment as she had at the time of the December 1991 settlement, so a change in physical condition was not an issue. Held, employer's accommodation of claimant in 1991 was a big factor in low industrial disability agreement when claimant now had no job and employer could not accommodate claimant. Employer downsized its work force and claimant had very low seniority. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GENE A. NEUBERT, JR., : : Claimant, : : vs. : : File No. 923664 OLAN MILLS PORTRAIT STUDIOS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GREAT AMERICAN INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Gene A. Neubert, Jr., against his employer, Olan Mills Portrait Studios, Inc., and its insurance carrier, Great American Insurance Company, defendants. The case was heard on February 11, 1991, in Cedar Rapids, Iowa at the Linn County Courthouse. The record consists of the testimony of claimant. The record also consists of the testimony of Verlene Nelson, supervisor at Olan Mills. Finally, the record consists of the following exhibits: joint exhibits A and B; and, defendants' exhibits A-T. Issues The issues to be determined are: 1) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 29 years old. He was employed as a telephone sales manager by defendant. He commenced his employment on January 17, 1989. Claimant had experienced difficulties with his left knee as early as 1981. At that time, he was struck by a baseball bat and he sustained left femur and tibia fractures. As a result, claimant underwent the placement of rods in both the femur and the tibia. In 1988, claimant was experiencing difficulties and J. V. Nepola removed the hardware from the left femur. Prior to the filing of this claim, claimant had also filed a workers' compensation claim against Reintjes of the Page 2 South, Inc. He alleged an injury to the left leg, both hips and low back. The case was approved as a special case settlement by Deputy Industrial Commissioner Helenjean Walleser on May 3, 1988. On July 25, 1989, claimant was working at the Indian Creek Studio. Approximately 9:00 a.m., claimant went to the bathroom. He turned on the light and slipped on a wet floor. When he slipped, he hit a garbage can in the back area. Claimant also struck his knee when he fell onto the floor. His left knee kept popping. Shortly after the incident, claimant went to the emergency room at St. Luke's Hospital for medical treatment. Later, claimant complained of low back pain. X-rays were taken but they revealed no fractures of the spine or left femur. Claimant continued follow up care with his family physician, David E. Kresnicka, M.D. Physical therapy and medications were prescribed. Dr. Kresnicka referred claimant to an orthopedic specialist, William Roberts, M.D. Dr. Roberts examined claimant on August 16, 1989. Dr. Roberts, in his report of August 17, 1989, opined: On examination of his left knee, there is noted to be no effusion. There is no warmth. There was some posteromedial joint line tenderness. There was no pain with varus or valgus stress. There was no instability of the knee. McMurray's sign was questionably positive in the region of the posteromedial aspect of the knee. IMPRESSION: Probable posteromedial capsular strain, although posterior horn tear of the medial meniscus cannot [sic] excluded at this time. RECOMMENDATIONS: We will place the patient on Motrin 800 mg. t.i.d. for the next three weeks. He's to perform all activities as tolerated. I will re-examined him at that time. If his joint line discomfort persists and his McMurray's sign is positive then we might consider an arthroscopy if his symptoms do not improve. (Exhibit JE-100) Later, Dr. Kresnicka referred claimant to J. Marsh, M.D., at the University of Iowa Hospitals and Clinics. Dr. Marsh conducted an arthroscopy of the left knee on December 18, 1989. Dr. Marsh found no evidence of internal derangement of the left knee. In his report of January 2, 1990, Dr. Marsh wrote: As you probably know Gene Neubert had arthroscopy of his knee on December 18, 1989. Examination of the intra-articular structures was completely normal. Gene is now due for his return visit and at that time I would anticipate suture removal and Page 3 rapid return to full function with respect to his knee. Other treatment will probably include exercises and anti-inflammatory medication. I do not expect any long-term disability from this problem. Therefore, I would anticipate that within two wks. with respect to his knee, Mr. Neubert will have reached maximum medical improvement, and I would anticipate that he would be able to return to work at that time. I have not evaluated Gene Neubert with respect to his back complaints. (Ex. JE-119) Later. Dr. Marsh wrote in his office notes of February 14, 1990: Gene Neubert is a 29 y/o WM s/p left femoral and tibial Ender rod removal 1Æ yrs. ago, doing well with that. He is 2 months s/p left knee arthroscopy for left knee pain of 6 mos. duration. The arthroscopy did not show any abnormalities. Today is his first clinic visit since the arthroscopy and the patient says that his knee is doing a lot better. He is 100% weight bearing. He is doing exercises to strengthen his leg muscles and is not requiring any pain medication. Today the patient complains of lower back pain. This pain has been present since 7/89. The pain is worse when standing, sitting, bending forwards or backwards. It is relieved by laying down and ice packs. The patient states that it feels like muscles are pulling. The patient was on Naprosyn for lÆ months by local M.D. and this helped. The patient has not taken any medication recently due to running out of pills. .... The patient denies any numbness or tingling running down the back of his leg. Examination: The left lateral tibia is slightly tender to palpation. The ROM of the knee is 110o flexion , negative 15o extension. There is no ligamentous laxity on exam. Strength is 5/5 on the right and 4/5 on the left in the quadriceps, hamstrings, anterior tibialis, gastroc nemeus. There is decreased sensation to pinprick along the left lateral foot, left medial foot, left posterior calf, and left anterior medial thigh. There were no other neurological deficits. Examination of the back reveals flexion to 30o, extension to 15o, and rotation in both directions 45o. Straight leg test is negative. The patient had 3/4 _____________ signs, twist was positive, head compression was positive, and reverse straight leg was positive. The patient was overreactive to pain. Page 4 Assessment: 1. Lower back pain of uncertain etiology, most likely mechanical. 2. 3-4 incongruent ________ signs. 3. Sensory loss in nonanatomical distribution in the left leg and thigh. Plan: Restart Naprosyn 500 mg PO bid 6 refills. Continue Amitriptyline 100 mg PO QHS, takes Naprosyn with food, sent to PT for exercise evaluation. RTC in 6 wks. and consult Spine team. Encourage activity and limit weight lifting to 15 lbs. (Ex. JE-120-121) Claimant also complained of back problems subsequent to his fall on July 25, 1989. X-rays of the thoracic spine were taken at St. Luke's Hospital. Elwood E. Stone, M.D., a radiologist, provided a report dated July 26, 1989. In the report Dr. Stone opined: No evidence for acute abnormalities are identified. IMPRESSION: Mild scoliosis, no acute abnormalities. LUMBOSACRAL SPINE: No acute abnormalities are noted. IMPRESSION: Unremarkable lumbar spine. (Ex. JE-60) Several days later, Dr. Kresnicka wrote in his note of July 31, 1989: The patient slipped on some water in the bathroom at work and fell and struck his low back against the wastepaper can. It happened on the 25th, in the morning, and since that time he has had extreme pain across the low back in the L2 and L4 area; also around the left knee anteriorly. He has some tenderness to palpation in the upper lumbar region and in the paraspinal muscles. There is some muscle spasm and tenderness and a lack of some of the normal lordosis of the lower spine. Reflexes and sensation appear to be intact in both lower extremities. Contusion to low back slowly improving. Would continue with the Flexeril that he is using as a muscle relaxant, #30, 1 up to t.i.d. and l refill and would give him a slip for some PT as at Mercy CarePT and use ice massage, electric stem, heat or ultrasound to the low back and then exercise to low back and legs. Would also have him try some Disalcid, 750 that he has at home for pain and swelling, l or 2 three times a day. Would recheck prn. I think he could go back to work later in the week. (Ex. JE-82-83) Page 5 Claimant engaged in physical therapy for his back. He discontinued the therapy prior to completion of his treatment. At the time of the hearing, claimant was not employed. As of July 18, 1990, claimant was offered a position as a telephone operator position. Claimant had not returned to that position. Conclusions of Law The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disabil ity. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Expert testimony that a condition could be caused by a Page 6 given injury coupled with additional, non-expert testimony that claimant was not afflicted with the same condition prior to the injury was sufficient to sustain an award. Giere, 259 Iowa 1065, 146 N.W.2d 911 (1966). 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 Iowa 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.2d 746 (1922). To be a preexisting condition, an actual health impairment must exist, even if it is dormant. Blacksmith, 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results Page 7 of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). In the case at hand, claimant has established that he sustained a temporary total disability to his back and left lower extremity. He sustained muscle spasms in his back and he had decreased range of motion. Physical therapy was prescribed to increase muscle tone. Claimant participated in the physical therapy program. Likewise, the claimant sustained a temporary aggravation to the condition of his left lower extremity. There is no question claimant had prior injuries to his left leg. He had recovered from those injuries to the point where he was able to work. After his fall on July 25, 1989, claimant was temporarily incapacitated. He used a cane. He experienced pain and patellofemoral crepitance. He had persistent locking of the knee. Physical therapy was prescribed. As of February 13, 1990, claimant had reached maximum medical improvement. The parties stipulated that the relevant period would be from July 25, 1989 to February 13, 1990, in the event temporary total disability was found. Claimant has not proven that he has sustained any permanent disability to either his back or lower left extremity as a result of the July 25, 1989 injury. X-rays did not reveal any fractures to the back or leg. Claimant had an unremarkable lumbar spine. Dr. Roberts opined that claimant's "pain threshhold is relatively low in that his response to this presumed problem is excessive." An arthroscopy of the left knee revealed no internal derangement. The arthroscopic surgery revealed no new injuries. All intra-articular structures were normal. Ernest M. Found, Jr., M.D., found no "permanent long term sequelae to his subjective back complaints and assign a permanent partial impairment of 0 percent." (Defendants' Ex. T) Since there is a total lack of objective findings, the undersigned determines claimant has no permanent partial disability. order THEREFORE, IT IS ORDERED: Defendants are to pay temporary total disability benefits for the period from July 25, 1989 to February 13, 1990, a period of twenty-nine point one-four-three (29.143) weeks, at the stipulated rate of ninety-three and 22/00 dollars ($93.22) per week. Defendants shall receive credit for all benefits paid and not previously credited. Page 8 Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as required by this division pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of July, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. Richard A. Pundt Attorney at Law 330 lst St SE Cedar Rapids IA 52401 Mr. Jon K. Swanson Attorney at Law 900 Des Moines Bldg Des Moines IA 50309 Mr. Robert J. Todd Attorney at Law P O Box 1160 Burlington IA 52601 5-1803 Filed July 30, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : GENE A. NEUBERT, JR., : : Claimant, : : vs. : : File No. 923664 OLAN MILLS PORTRAIT STUDIOS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GREAT AMERICAN INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 It was held that claimant could not meet his burden of proof with respect to any permanency. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ELFEGA MENDOZA, : : Claimant, : : vs. : : File No. 923666 IBP, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on June 21, 1991, at Burlington, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits to a scheduled member as a result of an alleged October 28, 1987 injury. The record in the proceeding consists of the testimony of the claimant, claimant's husband, Cheryl Schmitt, and Sherri Wilson; and joint exhibits A through L. issues The issues for resolution are: 1. Whether claimant's alleged injury on October 28, 1987, arose out of and in the course of her employment; 2. Whether claimant's alleged disability is causally connected to her alleged October 28, 1987 work injury; 3. The extent of claimant's permanent disability and entitlement to disability benefits, if any. A scheduled member is involved, the dispute being as to whether it is claimant's arm or hand; and, 4. The payment of costs. In particular dispute is the payment of $15.50 and $20.00 set out in Part B of the cost sheet which were costs incurred by a prior attorney for claimant. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant testified through an interpreter. Claimant was born in Mexico and completed the sixth grade in Mexico schools. She is not currently working and has not worked anywhere since leaving IBP in February 1988. Claimant worked nine months for defendant employer before she said she injured herself on October 28, 1987. Her first job with Page 2 defendant involved separating pig intestines without a knife. She used her hands and shoulders for periods of up to ten hours per day, six days per week with one-half hour lunch and two 15 minute breaks during the day. Claimant did this job for one month and was then changed to a position involving shredding intestines and pulling and stuffing the intestines onto a pipe or tube and washing the intestine out. This job required the use of her hands. Claimant said her whole right arm hurts. She said she is feeling some symptoms in her left arm, but she is not claiming any benefits or injury involving her left arm. She said she was not asked to leave her employment at IBP but was put in jobs she was unable to do. Claimant said defendant sent her first to Calvin Atwell, M.D., who said there was nothing wrong with her but said he commented as to why she doesn't have surgery. She said the company sent her to Anthony D'Angelo, D.O., an orthopedic doctor, for an impairment rating. She indicated he suggested surgery. Claimant indicated she did not want surgery because people she knows that were operated on are not as good as before the surgery. Claimant expressed fear about surgery. Claimant indicated that currently when she lifts things it feels like a tendon or nerve pulls and pain goes all the way to her right elbow. Claimant left her employment with defendant on February 17, 1988. She acknowledged that she first saw the company doctor, Dr. Atwell, on April 18, 1989, which was after she left defendant. She indicated Dr. Atwell gave a zero rating but she said he did recommend surgery. Claimant said Dr. D'Angelo gave her a right hand use restriction. In other words, she wasn't to work with the whole right arm as she understood the situation. She related Dr. D'Angelo casted her right wrist up to the middle of her elbow area. She indicated it was treatment for her whole arm. Claimant admitted Dr. D'Angelo and R. F. Neiman, M.D., recommended surgery and indicated that she would obtain some relief for the arm. Claimant said she lost no time from work. She was put on light duty working with a splint for awhile. She said weekly benefits have not been paid but she understands all medical bills have been or will be paid by defendant. Claimant's husband testified claimant had no right arm problem before working for defendant. After her October 28, 1987 injury he indicated claimant was unable to open cans with a can opener. He said if she picks up a glass of liquid she will drop it and she can't wash dishes for a long time. He said claimant complains of a total arm to her shoulder problem and he has to massage her back to eliminate some of the pain. He acknowledged claimant was in an automobile accident which caused some neck, back and shoulder problems but he said claimant's symptoms were Page 3 different from her IBP injury. Defendant's attorney asked Mr. Mendoza if he had a workers' compensation tunnel syndrome claim against defendant and he said he did. He said defendant has treated him the same as his wife as he has received no benefits either. Cheryl Schmitt, defendant's medical department manager since January 1990, has been with IBP since November 14, 1988, and at that time was a staff nurse. She has been a registered nurse since 1976. Ms. Schmitt explained her duties and the keeping of the employee's medical card file records. She said if an employee is given restrictions IBP gives a job appropriate to the restrictions and the employee is expected to follow the restrictions. She indicated there are jobs at IBP that require use of only one hand. Ms. Schmitt indicated claimant's medical card shows claimant was provided with such a job and had difficulty adhering to the job with one hand. She said claimant's records (Jt. Ex. B1) show claimant was observed on two occasions by a nurse using her right hand. She acknowledged Dr. D'Angelo casted claimant's right hand to prevent its use. Ms. Schmitt seemed to infer that these two occasions of the job aggravated claimant's condition. Sherri Wilson is defendant's current workers' compensation coordinator beginning in September 1986. Her duties include coordinating the care for injured people between the plant and corporate level. She said claimant never returned to see her personally after leaving IBP even though they are free to do so. She related she coordinated the medical care for the claimant as to various doctors. She indicated that Dr. D'Angelo gave claimant a 7 percent permanent impairment rating, Dr. Neiman a 3 percent body as a whole rating which she indicated was a 5 percent right upper extremity impairment, and that Dr. Atwell gave a zero rating. She acknowledged Dr. Atwell is not a neurosurgeon or an orthopedic surgeon but is only a general practitioner. She admitted that because claimant never saw her personally, she isn't saying claimant did something wrong. She denied special arrangements need to be made to see her and yet admitted one must be cleared by the guard in order to enter the company after they have left the employment. Dr. D'Angelo testified through his deposition on May 1, 1991, that he first saw claimant on October 7, 1988, upon referral from a Dr. Brian Masonholder. He said that with his examination and history taken and with reviews of prior studies, claimant's condition was consistent with a carpal tunnel on the left and right. On February 1, 1988, he gave claimant a steroid injection in the right wrist and applied a cast and claimant was to return in two weeks. Dr. D'Angelo opined claimant's carpal tunnel syndrome Page 4 is causally connected to claimant's work at IBP and further opined claimant had a 7 percent impairment to her upper extremity (Jt. Ex. L, p. 9). He indicated claimant's prognosis was fairly good. He recommended surgery on several occasions but said claimant declined. When asked if surgical intervention would improve claimant's condition, the doctor said most often it does which would affect her permanent impairment rating. He said it might lower that rating (Jt. Ex. L, p. 17) but he could not state with any degree of medical certainty what amount of rating change would occur. He said an average person who is operated on results in symptoms of numbness and tingling going away and function of the hand improves (Jt. Ex. L, p. 18). The doctor did not put any restrictions on claimant at the July 31, 1989 visit as she had quit her job by then, so the issue of permanent restrictions did not arise. He did say, on cross-examination, that if claimant was working and based on her July 27, 1989 complaints, she would need to be on work restrictions if she could not tolerate her symptoms (Jt. Ex. L, p. 11). Basically, the doctor indicated that repetitive action of pulling, grasping and lifting would aggravate her condition. The doctor affirmed his opinion that his rating of claimant was to the right upper extremity (Jt. Ex. 11, p. 15). The doctor acknowledged that claimant's grip strength and squeeze tests on October 12, 1988 and September 27, 1989 didn't indicate much change in claimant's right arm (Jt. Ex. L, p. 20). Joint Exhibit B21, IBP's employee's record signed by R. Stewart, R.N., Joint Exhibit B22, First Report signed by Beth Rose, and Joint Exhibit B25, signed by Brian Masonholder, M.D., indicate claimant incurred a repetitive trauma on October 28, 1987. Joint Exhibit B21-22 indicates claimant was separating guts. Joint Exhibit B27, signed by a doctor whose name is not readable, restricted claimant on January 7, 1988, to one handed duty with left hand. It appears from other records, particularly Joint Exhibit F5, that this particular doctor was Dr. D'Angelo. This was followed by defendant's nurse on January 8, 1988 (Jt. Ex. B28) restricting claimant from using her right hand on the job. On July 6, 1988, Dr. D'Angelo's report restricted claimant to "no repetitive use bilateral hands and wrists." (Jt. Ex. B30). It appears this restriction still existed on October 12, 1988 (Jt. Ex. B31). There is no contention by the claimant that she is seeking benefits for anything other than her right upper extremity. The medical records involving her automobile accident affirms her husband's testimony that that accident in December in 1988 did not affect the parts of the body involved in her alleged October 28, 1987 injury. Joint Exhibit C2 indicates that on February 21, 1989, there appears to be nearly complete resolution of any injury from her motor vehicle accident. On May 8, 1989, Dr. Atwell, a general and vascular surgeon, opined claimant has a zero permanent disability Page 5 rating. The undersigned believes the doctor means impairment as the deputy industrial commissioner determines disability (Jt. Ex. D2). On May 2, 1990, Dr. Neiman, a neurologist, indicated historically claimant's right carpal tunnel is work related (Jt. Ex. F2). Although there was no oral evidence of claimant being right or left handed, Joint Exhibits E2 and F1 indicate claimant is right handed. On May 24, 1990, Dr. Neiman agreed with Dr. D'Angelo as to recommending surgery (Jt. Ex. E4). On June 24, 1990, Dr. Neiman opined claimant had a 3 percent permanent partial disability (impairment) of the whole person and added that claimant could probably get well if she had a decompression on the right median nerve, but claimant stated she did not wish to have surgery (Jt. Ex. E5). The undersigned finds the doctor, for workers' compensation purposes, should not have converted claimant's upper extremity impairment to a body as a whole. It appears from the parties' other evidence and statements and argument of counsel that this 3 percent body as a whole is converted from 5 percent permanent impairment to an upper extremity. Joint Exhibit F1, dated January 7, 1988, reflects an examination of Dr. D'Angelo, which again includes his recommendations to claimant to have surgery. Although he could not guarantee that claimant would not have residue symptoms, he did not think claimant would be put out of the work force if she had surgery. He assessed claimant as having bilateral carpal tunnel syndrome more prevalent on the right. Dr. D'Angelo treated claimant until October 12, 1988, when he assessed claimant's situation again and opined: It is my opinion symptoms are basically unchanged over the last exam. At this point in time I would assign an impairment rating. I have nothing further to offer this individual. I cannot predict if these symptoms will worsen or improve with time. I cannot state if surgery will effectly [sic] control all of her Page 6 symptoms, simply halt further progression symptoms or provide no relief at all. (Jt. Ex. F4) On July 31, 1989, the doctor opined claimant had a 7 percent impairment to the right upper extremity based on the AMA Guides (Jt. Ex. F8). Although there may be questions as to how exactly the October 28, 1987 date was picked over other possible dates within that time frame, and looking at the medical records, it appears that the medical personnel also earmarked this October 28, 1987 date as the date of injury. The undersigned finds that claimant did incur an injury which arose out of and in the course of her employment on October 28, 1987 and that the evidence is overwhelming as to this finding. It is further found that the greater weight of medical evidence indicates claimant's carpal tunnel and right upper extremity condition is causally connected to her October 28, 1987 cumulative work injury. The record is overwhelming that claimant's symptoms not only increased when she was performing her jobs at defendant, but that when she was either removed from those jobs or did something different, there would be either relief or the doctors ordered her to have duties changed so that her condition would not become worse. There is no other evidence of any cause causing claimant's complaints, carpal syndrome and arm condition. The parties are disputing whether claimant's injury is to her arm or to her hand. Normally, in a strict carpal tunnel situation, and when surgery is performed, it usually involves the hand or wrist and this agency has consistently held that the wrist is part of the hand. Claimant has not had surgery even though it was recommended by two or more doctors, two of them being specialists. The medical exhibits often refer to claimant's arm. The doctors refer to claimant's upper extremity. There is basically no reference to claimant's particular right hand. Although sometimes, rarely, if there is a hand injury, a doctor may refer to an upper extremity but usually this is only referred to when there is, in fact, an arm or shoulder injury. The undersigned believes the doctors are using the word upper extremity because they believe claimant's injury affected her arm also. The undersigned finds that claimant's hand and arm were affected by her work-related injury of October 28, 1987. Another issue was the extent of claimant's permanent disability. Defendant argues that there is a zero percent, 5 percent and 7 percent permanent impairment rating and, therefore, there should be something similar to a quotient rating or adding together all the impairments and dividing them by 3. The undersigned disagrees that this is the agency precedent and that this is not the procedure the undersigned uses. The general practitioner, Dr. Atwell, of which defendant desires to rely, issued a zero rating. Two Page 7 other specialists had ratings of 5 percent and 7 percent. The 5 percent was by a neurologist and the 7 percent was by an orthopedist. The undersigned believes that the impairment rating of Dr. D'Angelo is the most reliable based on the facts of this case and the complaints and condition of this claimant. The undersigned finds that claimant incurred a 7 percent permanent impairment to her right upper extremity as a result of her October 28, 1987 work-related injury. The AMA Guides to which the specialists refer deal with factors other than basically loss of use of a scheduled member. The facts are clear that claimant had the loss of use of her right upper extremity as late as January 7, 1988 (Jt. Ex. B27), in which she was to use one hand only, namely, her left. On October 12, 1988 (Jt. Ex. B31), claimant was to have no repetitive use of hands and wrists because of her bilateral carpal tunnel syndrome diagnosis. Claimant quit defendant's place of business on February 17, 1988. Her contention being that she was unable to do the work. It seems like defendant was criticizing her as possibly aggravating her condition by using, at least on two occasions, her right hand and eventually it appears her right hand was put in a sling or cast to prevent its use as she was attempting to heal from her right carpal tunnel syndrome condition. It is understandable to the undersigned that, being right handed working in the industry in which claimant was working, there is an inclination to use your best or favored hand to help you in a job where you are suddenly limited to the use of one hand, that one hand being the hand or arm that you were normally not relying upon as a favored hand. This deputy does not believe claimant should be criticized. She obviously was not attempting to hurt herself but was trying to do her job. Defendant contends this was a one handed job. It is obvious from the record that claimant was also having problems with the left hand and arm and that this one handed duty was increasing the aggravation to that hand and arm. There is no evidence that those restrictions were ever lifted but it is also evident that since claimant quit, there was no further reason to honor that situation as it relates to her job. What concerns the undersigned is claimant's refusal to have surgery. The undersigned realizes and it is clear from the record that no doctor could guarantee success. Carpal tunnel syndrome surgery is a common surgery and this agency's experience has been that there have been failures or no improvement. It has also been this agency's experience that this common surgery has brought about a successful result or relief or at least has not caused increased problems. The undersigned understands claimant's fear of surgery but finds that in this situation the claimant's fear of surgery and desire not to have a right carpal tunnel surgery has resulted in the ability not to Page 8 determine for sure the true extent of the loss of use and impairment to claimant's right upper extremity. Claimant has control over her body and has made the choice that she does not desire surgery. Likewise, the undersigned must proceed on the basis that this may improve her situation and result in greater use of her right arm and hand. There is no evidence that the impairment may be lessened but there seems to be evidence that there would be on the law of averages a greater use of the upper right extremity. The parties stipulated that all medical bills have been paid. The undersigned finds that if, in fact, claimant desires to have surgery, that surgery should be paid for by defendant and that it would be in the best interest of the claimant to seek medical intervention as recommendation by two specialists, one a neurologist and the other an orthopedic surgeon. The undersigned finds that claimant has a 7 percent permanent partial impairment to her right upper extremity and that she is entitled to 17.50 weeks of permanent partial disability benefits at the rate of $181.20 per week. The parties' last dispute involves costs, particularly the $20.00 of Dr. D'Angelo for a medical report and $15.50 for the Muscatine Health Center. These were incurred by an attorney that claimant had prior to her current attorney. The parties did not know exactly if these expenses were for copies or in the case of $20.00, an actual medical report. As provided by the law, costs can include two medical reports. It is therefore found that the medical report of Dr. D'Angelo in the amount of $20.00 should be reimbursed to Attorney Robert H. DeKock. It is further found that the $15.50 appears to be costs for copies of records, which costs the undersigned finds are the costs of doing business and are not reimbursable as costs under the law. This does not mean that the claimant should not reimburse her former attorney for his out-of-pocket expenses but that is between her and her former attorney. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on October 28, 1987 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of October 28, 1987 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). Page 9 However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Iowa Code section 85.34(2) provides, in part: For all cases of permanent partial disability compensation shall be paid as follows: .... (m) The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm and the compensation therefor shall be weekly compensation during two hundred fifty weeks. It is further concluded that: Claimant incurred a cumulative injury to her right upper extremity that arose out of and in the course of her employment causing claimant to incur a 7 percent permanent partial impairment to her right upper extremity, entitling her to 17.50 weeks of permanent disability benefits at the rate of $181.20. Claimant has refused to have surgery but that if, in fact, she decides to have surgery, the costs of claimant's medical bills incurred for the same shall be paid for by defendant. Twenty dollars referred to as Part B of claimant's affidavit of costs for Dr. D'Angelo's medical report shall be paid as part of the costs of this action. The $15.50 for the Muscatine Health Center shall not be considered part of the costs in this case. All other costs on claimant's affidavit of costs shall be paid as provided in the order herein. order THEREFORE, it is ordered: That defendant shall pay the claimant seventeen point fifty (17.50) weeks of permanent partial disability benefits at the stipulated rate of one hundred eight-one and 20/100 dollars ($181.20) per week beginning July 31, 1989, which is Page 10 based on the permanent impairment rating of seven percent (7%) by Dr. D'Angelo. That defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The record shows that defendant has not paid any weekly benefits herein. That defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this action, pursuant to rule 343 IAC 4.33, including the interpreter's expense. 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 July, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr William J Bribriesco Attorney at Law 2407 18th St Ste 202 Bettendorf IA 52722 Ms Marie L Welsh Attorney at Law P O Box 515 Dept #41 Dakota City NE 68731 5-1100; 5-1108.50 1803 Filed July 3, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : ELFEGA MENDOZA, : : Claimant, : : vs. : : File No. 923666 IBP, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-1100 Found claimant's injury arose out of and in the course of claimant's employment. 5-1108.50 Found claimant's impairment causally connected to claimant's work injury. 1803 Claimant had permanent impairment ratings of 0, 5 and 7 percent of her right upper extremity. Found 7 percent permanent impairment. Deputy accepted the orthopedic specialist's rating as more accurate under evidence of case. Found right arm and not just right hand as scheduled member affected based on the doctors' reference to upper extremity and not hand. It appears doctors meant more than the hand. Claimant was fearful of surgery and refused surgery, but doctors would not guarantee successful surgery or opined rating if surgery was done.