Page 1 before the iowa industrial commissioner ____________________________________________________________ : FLOYD J. ELLIOTT, : : Claimant, : File Nos. 923668 : 936510 vs. : 912957 : FIRESTONE TIRE & RUBBER CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on April 8, 1991, in Des Moines, Iowa. These are proceedings in arbitration wherein the claimant seeks compensation for permanent partial disability benefits as a result of injuries occurring on May 6, 1988, September 5, 1988 and November 11, 1988. The record in the proceedings consists of the testimony of claimant and Lorraine Hackett; and joint exhibits 1 through 10. issues The issues for resolution as to the November 11, 1988 injury are: 1. Whether claimant's alleged permanent disability is causally connected to his November 11, 1988 injury; 2. The extent of claimant's permanent disability; and, 3. Whether claimant is entitled to 85.27 benefits, namely, as to the Mercy Hospital bill and Dr. Jones' $144 bill, which has not been received by the parties, the issue being as to authorization. The issues for resolution as to the May 6, 1988 and September 5, 1988 injuries are: 1. Whether claimant's alleged permanent disability is causally connected to his May 6, 1988 injury; and, 2. The nature and extent of claimant's permanent disability and entitlement to disability benefits. As to the nature, the question is whether the injury is to the body as a whole or a left hand scheduled member. The parties agree that the May 6, 1988 and September 5, Page 2 1988 injuries are one and the same and that the parties proceeded on the basis of a May 6, 1988 injury and that the September 5, 1988 allegations are, in fact, encompassed within the May 6, 1988 injury. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified both in person and through his deposition taken on August 23, 1990. Claimant is a 37-year-old who left high school in the twelfth grade but shortly thereafter obtained his GED. Claimant has had no other formal education. Claimant described his work history up to his employment with defendant employer beginning in February 1988. This history involved working as a bottle sorter, stocker and grocery deliverer, painting houses, working as a mechanic on trucks, driving trucks for the city of Windsor Heights, gas station mechanic, operating his own insulation business, repairing and cleaning air conditioners. Claimant indicated his mechanic ability was self taught and by observing his father as his father worked on machinery. He said the current autos with computers are beyond his knowledge to repair (Joint Exhibit 7, page 5). This exhibit sets out in more detail claimant's work history generally referred to above. Claimant describe his jobs and their nature while working for defendant employer (Jt. Ex. 10, pp. 14, 15). Claimant said he started having shoulder problems and left hand pain up his arms into his shoulder on May 6, 1988. He was given medicine and then a shot and put on light duty. He said his pain became worse and also started in his right shoulder. Claimant said he worked right up to a month before his surgery. Claimant had carpal tunnel left hand surgery on September 7, 1988. He was off two days and returned to work with a half cast on his hand. His job at that time was to pull rejected tires. On November 11, 1988, claimant was pulling tread off a tire with a hook which pulled through the rubber causing claimant to fall back and hit his low back on a guardrail. He reported this on November 11, 1988 to defendant employer (Jt. Ex. 1, p. 75A). Claimant hurt but continued to work. Claimant said one of the company doctors told him there was nothing wrong with him while another said there was a problem (Jt. Ex. 10, p. 24). Claimant said defendant employer finally transferred him approximately one month later to the fork lift position. Claimant received therapy, ice packs and ultrasound. Claimant worked until the end of June 1988, but he said the pain in his left leg was so severe that he fell twice as his leg would go to sleep. Thomas A. Carlstrom, M.D., performed a lumbar laminectomy L5-S1 on claimant on July 21, 1989 (Jt. Ex. 1, p. 44). Claimant was off eight weeks. Page 3 Claimant said his left leg got better but his back did not. The pain eventually shifted to his right side. Claimant indicated his job with defendant employer upon his return to work was driving a jeep fork lift and he could not keep up with the work. Claimant worked until October 24, 1989, at which time he was terminated for having falsified his application. Claimant went to work for Harkin Glass Company as a driver in January 1990 to May 1990. He said his pain was so bad all the time and was becoming worse, so he quit. He did not file for workers' compensation against that company. Claimant then worked driving a semi to Fort Dodge and back delivering mail once or twice a week. This required no loading or unloading. Claimant said he could not do this anymore due to his condition. Claimant found no other work so he went back to defendant employer to see about a job in November 1990. Claimant said Dr. Carlstrom did another MRI and more therapy was prescribed in November 1990 until the end of January 1991, when he was released from therapy. Claimant indicated it was recommended he sign up for swimming and whirlpool three times a week for six weeks. Claimant emphasized the insurance company would not pay for this. Dr. Carlstrom was called to Saudi Arabia so claimant couldn't see him again. Claimant said the insurance would not pay for another doctor so claimant attempted to find his own doctor. Claimant said he tried to find several doctors but no one wanted to dispute Dr. Carlstrom. Claimant eventually called Robert Jones, M.D., who called back two weeks later and agreed to see claimant. He said Dr. Jones recommended another MRI and after his second visit recommended claimant go to a pain clinic or Sister Kenney Hospital, in Minneapolis. Claimant was asked about his prior injuries or accidents. He related a 1973 hernia when he got kicked, but he had no surgery. In 1974, he was struck in the head and appeared to have had a workers' compensation settlement but he remembers nothing about this incident. He said it appears his signature is on the paper. In January 1979, claimant was off work five weeks due to pain in his lower back caused by a tow truck accident. He described his 1979 injury in his deposition as a hip injury involving a socket. He said he had back problems for one and one-half years thereafter. Claimant was asked about the Firestone medical records and history that he filled out and in which he answered "no" to all the medical questions (Jt. Ex. 1, pp. 65, 66). Claimant said he denied any prior problems in order to get a job. He said he felt good and was having no problem or back pain at that time. He said Firestone did a physical and took x-rays and found no problems. On cross-examination, claimant acknowledged he also had Page 4 a 1977 auto accident causing neck and right shoulder injury, which he doesn't recall, and a 1978 minor right elbow injury. Claimant's records reflect that he hurt his right elbow on January 7, 1989, at work (Jt. Ex. 1, pp. 176, 185, 217 and 223). It appears to the undersigned that there is no evidence in the record of any residual permanent impairment or lingering problems from these injuries. Claimant was asked about a herniated disc determination of a Douglas W. Brenton, M.D., in a 1987 low back problem in which a CT scan on March 11, 1987 showed a herniated disc at L5-S1 (Jt. Ex. 1, pp. 21-24). Claimant eventually remembered the event but not the herniation. Although at times it seemed unbelievable that claimant would forget certain injuries, the undersigned does note that claimant had retrograde amnesia, as noted in the January 1979 medical record (Jt. Ex. 1, p. 219). Claimant said that when he returned to the fork lift light duty job on September 13, 1989, he was making $11.00 per hour and anticipated continuing that job to the current day if he had not been terminated due to his false application. At the time of his November 1988 injury, claimant was making $11.00 per hour. Claimant acknowledged that defendants had Lorraine Hackett attempt to help him with a vocational rehabilitation plan, which he agreed to. He said he changed his plan because defendants were not paying his medical bills. He also related his wife did not want him to go to a woman vocational rehabilitation person. Jack Reynolds was then assigned to the case. Claimant's complaints basically are sore shoulders, left more than right, and the feeling gone in his two lower fingers of his left hand. Claimant acknowledged he did not check with defendant insurance company before he went to Dr. Jones. Lorraine Hackett, a rehabilitation consultant, testified her first contact with claimant was in September 1990. She related the history, records and test results she had. She said claimant had an excellent mechanical aptitude and good communication skills. She concluded and targeted the job areas for claimant which ranged from $7.00 up to $10.50 per hour. She gave claimant job leads and he was also to seek jobs on his own. She said claimant seemed enthusiastic and followed up. Her last contact with claimant was on November 5, 1990, and she understood claimant's wife objected to him working with a woman so his case was transferred to Jack Reynolds. Claimant was called on January 4, 1991, and he said he would not cooperate until his bills were paid. She said the state rehabilitation became involved but claimant did not keep his appointment. Ms. Hackett helped claimant with his resume but she did not recommend claimant become a mechanic due to his restrictions nor does she recommend painting due to working overhead or heavy lifting. Dr. Carlstrom had told him to avoid heights. Ms. Hackett said claimant could do the fork Page 5 lift job today and that Dr. Carlstrom also said he could return to that job. Jack Reynolds' report of March 1, 1991 (Jt. Ex. 3), indicates claimant did not wish to accept any vocational rehabilitation services. Claimant complained of problems but it doesn't appear he was helping himself to the extent that he could (Jt. Ex. 3, p. 79). Joint Exhibit 4 reflects some of claimant's job search efforts. Joint Exhibit 6, page 13, is a letter from defendant employer's manager of the heavy duty tire building department regarding claimant's attendance record. Page 15 shows claimant as one of several persons on said exhibit who have injuries. It indicates these people would serve defendant employer in another capacity and add value to their products. Thomas A. Carlstrom, M.D., saw claimant on June 21, 1989, at which time claimant had symptoms of left L5 radiculopathy with pain in back and left leg radiating to the lateral portion of claimant's foot. He indicated this was similar to claimant's symptoms six to eight months ago and also two years ago. The doctor indicated claimant's CT scan in 1987 also shows a small herniated disc at L5-S1, but on the 1989 CT scan it was larger. A CT scan on April 1, 1983 shows the same thing as the 1987 CT scan (Jt. Ex. 1, p. 192). On July 21, 1989, claimant had a laminectomy for a herniated disc at L5-S1 left. A very large herniated disc was found at that level (Jt. Ex. 1, p. 43). On November 16, 1990, Dr. Carlstrom wrote a letter which is confusing in part, as he refers to an injury in the early part of 1989. Looking at all the evidence and taking Dr. Carlstrom's medical as a whole, the undersigned believes that the injury he was referring to was, in fact, on November 11, 1988, rather than an injury in the early part of 1989. There is no other evidence or record, and the undersigned so finds. Dr. Carlstrom referred to claimant as having an old history of a herniated lumbar disc and that he had some persistent symptoms throughout his history even though he was able to work. He then opined that approxi mately one-third of claimant's impairment should be referred back to his prior injury. The undersigned, as indicated above, believes the doctor is referring to claimant's injury prior to November 1988, and, therefore, indicated claimant would have an approximate 8 percent impairment from what the undersigned finds was his November 11, 1988 injury. There appears to be attached to this letter, and marked as Joint Exhibit 1, pages 3 and 4, the apparent restrictions that Dr. Carlstrom placed on claimant. There is no evidence that these were ever removed. Apparently, these restrictions, in part, are that claimant is limited to occasional lifting or carrying of 30 pounds and frequently 20 pounds, and restricted from heights. He indicated claimant could not return to his former job, but that he could return to other work with restrictions defined herein. It is apparent from the record and from the rehabilitation consultant that Dr. Carlstrom did approve of claimant returning to his lighter duty fork lift job that he was doing at the time he was Page 6 terminated. On this same report, the doctor indicated claimant's total impairment was 12 percent. By reducing that one-third, he arrived at the 8 percent referred to above. Claimant attended the Iowa Methodist Low Back Institute and received physical therapy there several days between September 20, 1990 and December 7, 1990. Upon his release, the institute's assessment of claimant was that they could see little benefit to claimant from pursuing additional physical therapy intervention and they found little improvement in function. A.B. Grundberg, M.D., on May 8, 1990, opined that claimant had a 3 percent permanent impairment of his left hand from claimant's left carpal tunnel syndrome and that the healing period ended on November 20, 1989 (Jt. Ex. 1, pp. 29 and 30). Claimant's medical indicates he was having problems with his left hand with pain in his shoulders. Dr. Grundberg diagnosed on September 15, 1988 that claimant had a left carpal tunnel syndrome and bursitis in his left shoulder (Jt. Ex. 1, p. 34). He later determined that claimant also had a narrowing between C6 and 7 (Jt. Ex. 1, p. 39). On May 6, 1988, claimant complained to defendant employer that his right shoulder was getting sore from building tires on the B-3 tire machine (Jt. Ex. 1, p. 73). On May 13, 1988, claimant told defendant employer his left shoulder was bothering him from throwing stock while building tires on a B-3 tire machine (Jt. Ex. 1, p. 78). There is no dispute involving any injury herein as to the healing period. As mentioned earlier, and as discussed by the parties, the May 6, 1988 and September 5, 1988 alleged injuries involved one injury and the parties agreed that the September 5, 1988 injury is encompassed within the May 6, 1988 injury. For that reason, there will be no further reference to the September 5, 1988 injury, represented by file No. 923688, until the conclusion and order. Regarding the May 6, 1988 injury, the parties are basically arguing over whether this injury was to claimant's body as a whole or was solely a scheduled member injury to claimant's left hand. Although there is reference in the record as to claimant's shoulder bothering him, claimant has the burden of proof to show there is a permanent work-related injury to his shoulder which would involve his body as a whole. The greater weight of medical evidence does not show any permanent impairment or injury to claimant's shoulder or body as a whole as a result of a May 6, 1988 injury. Although there is some reference in the record as to claimant's right elbow, there likewise is no evidence of any permanent impairment or injury as a result of a May 6, 1988 injury. There is reference that claimant hurt his right elbow on January 7, 1989, at work (Jt. Ex. 1, p. 76). The undersigned finds that the claimant incurred, as found by Dr. Grundberg, a 3 percent permanent impairment to his left hand resulting from his carpal tunnel syndrome Page 7 (Jt. Ex. 1, pp. 29 and 30). As to the other issue concerning this injury, defendants are questioning the causal connection of the injury to any permanent impairment. It would appear from the record and statements of counsel that the causal connection dispute is really regarding the causal connection of any permanency to the body as a whole or any greater permanency than the 3 percent found by Dr. Grundberg. The undersigned finds that there is no causal connection to claimant's alleged body as a whole injury to a May 6, 1988 injury nor any greater permanent impairment than 3 percent to his left hand. The undersigned therefore finds that there is a causal connection between claimant's 3 percent permanent impairment to his left hand and his May 6, 1988 injury. Therefore, claimant is entitled to 5.7 weeks of permanent partial disability benefits (190 x 3% = 5.7 weeks). As to claimant's November 11, 1988 injury, all the healing period has been paid so the only dispute is whether there is a causal connection to claimant's alleged permanent disability and the injury and if there is any permanent disability, the extent, thereof, if any. Claimant has had a history of back problems as reflected in the records of Dr. Brenton, neurologist, dated March 13, 1987, in which he refers to claimant's lumbar spine CT scan. It shows a herniated disc at L5-S1 centrally and on the left (Jt. Ex. 1, p. 22). The department of radiology at the Iowa Methodist Medical Center, on March 11, 1987, refers to a "mild herniation or protrusion of disc material." (Jt. Ex. 1, p. 63) There is no evidence that claimant was unable to work or that his work was hampered by any herniated disc problem prior to his November 11, 1988 injury. Although the company doctors initially had claimant continue on with work and even though they attempted to accommodate claimant, the greater weight of medical evidence and other facts in this case show that claimant was bothered and hampered by a back condition after his November 11, 1988 injury, and that he had a laminectomy performed by Dr. Carlstrom in July 1989 at L5-S1 at which time it was found that the condition was much larger than the condition found in 1987. There is no indication of any surgery needed in 1987 to correct claimant's condition. Dr. Carlstrom opined that claimant had a 12 percent permanent impairment of which he relates 1/3 or 4 percent to claimant's preexisting situation or condition and 8 percent to a subsequent injury. As referred to earlier, Dr. Carlstrom refers to an early 1989 injury and has no reference in any respect to a November 11, 1988 injury. The undersigned finds that it was obvious the doctor had to have been referring to the November 11, 1988 injury rather than an early 1989 injury to which there is no other reference in the record by any other doctor or testimony. The greater weight of medical testimony shows, and the undersigned so finds, that claimant's July 21, 1989 laminectomy was causally connected to claimant's November 11, 1988 injury and that claimant's impairment was causally connected to said November 11, 1988 injury. The undersigned Page 8 further finds that claimant had a preexisting condition at L5-S1 which involved a mild herniated disc protrusion which had not prevented claimant from working and did not need surgical intervention. The undersigned further finds that claimant's November 11, 1988 injury substantially and materially exacerbated and lighted up claimant's preexisting condition, resulting in claimant incurring the July 1989 surgery and additional 8 percent permanent impairment. The undersigned finds that claimant has certain lifting and climbing restrictions all set out in Joint Exhibit 1, pages 3 and 4, and these are causally connected to claimant's November 11, 1988 injury. Claimant was working until October 24, 1989 for defendant employer. At that time he was terminated for having falsified his employment application which he filled out before being hired in February 1988. Although the undersigned is disturbed by the fact that claimant admittedly falsified his application for employment, the undersigned is likewise disturbed by the fact that claimant was working at his job within his restrictions and ap parently the only reason he was fired was for the discovery of a false application. This would appear to be a subterfuge for trying to get rid of claimant. Dr. Carlstrom and the rehabilitation consultant both indicated claimant could perform his fork lift job, which was lighter duty than the job he was performing at the time of his injury, and that it would appear that claimant was doing his job satisfactorily. The undersigned can appreciate the fact that claimant, who appeared to have been suffering no work effects from any prior back condition or injury, would have been prevented from obtaining work if there had been any indication he had had prior back problems. Defendant employer gave him a physical and he passed it which seemed to affirm the fact that claimant was able to do the job and evidence shows he was doing the job until his November 11, 1988 injury. Employers often take the position that they are not hesitant in hiring people with prior back conditions and that that is not material in their hiring decision. They often argue this point to defend their positions and yet in this case at bar, there is no evidence that claimant's pre-November 1988 back conditions were interfering with his work and that upon claimant being injured and defendant employer having knowledge of his prior back condition, they fired him. Although the undersigned is not finding claimant as dishonest, the fact is that a dishonest person can be injured. The undersigned finds that defendant employer fired claimant due to his condition resulting from the November 11, 1988 injury and that their later discovery of the fact that he lied on his report was a subterfuge. It would appear that defendant employer's physical examination and claimant's passing of the physical would support claimant's reasoning that he did not feel that his prior back conditions should affect him in getting and performing the job when those prior conditions were not affecting his ability to work or perform the job that he was seeking. Claimant's falsification on his application was Page 9 not the sole cause for defendants to refuse to continue claimant in its employment, under the total circumstances of this case. Claimant has incurred a loss of income and a loss of earning capacity as a result of his November 11, 1988 injury. The undersigned questions the extent of claimant's motivation in trying to seek work. Although it is no excuse that claimant's wife at the time objected to him working through a female vocational consultant, the fact is that the vocational rehabilitation service assigned him to a male consultant. It is understandable that claimant's motivation has been severely hampered or dampened by his injury and the circumstances surrounding this case. The rehabilitation consultant acknowledges that claimant could not return to the job he had on November 11, 1988, nor could he perform his painting jobs that he had performed during his earlier work history. Although claimant has a mechanical aptitude, it is obvious from the evidence that he picked this up by watching others and that with the modern day machinery and vehicles and the computerization, claimant would be hampered by a lack of education in that area even though he possibly could learn it. A letter from the manager of the heavy duty tire building department indicates the manager believed that claimant could make a meaningful contribution to the commer cial tire business and add value to Firestone's products. This is evidenced by the October 20, 1988 letter which is an interdepartment correspondence (Jt. Ex. 6, p. 13). Claimant is 37 years old but has limited skills and permanent restrictions and his work history has basically been involving labor and heavier duty work. Taking into consideration claimant's age, education, work experience prior to the injury, transferable skills, his medical history prior to the November 11, 1988 injury and subsequent thereto, claimant's preexisting condition, the nature and location of his injury, the extent of his healing period, the functional impairment, the employer's refusal to continue claimant's employment and claimant's inability to find other suitable work after making some bona fide effort, the undersigned finds claimant has a 30 percent industrial disability and that this disability was causally connected to his November 11, 1988 injury. The remaining issue is whether claimant is entitled to have his Mercy Hospital bill and Dr. Jones' bill paid. It appears the bills in dispute are the Mercy Hospital bill set out in Joint Exhibit 2, pages 1 through 7, and Dr. Jones' bill that has not been received yet but is anticipated to be in the amount of $144. It would appear that claimant was denied any further care for any permanency regarding his back injury of November 11, 1988, and that at the time these bills were incurred they were denying any further liability. They were, in fact, denying that Dr. Carlstrom's July 1989 surgery was causally connected. The undersigned finds that claimant was entitled to obtain this medical to help solve his problems and although there is not any evidence that he Page 10 was helped, there is likewise no evidence that this care didn't help to determine if claimant could get additional recovery from his complaints and condition caused by the November 11, 1988 injury. Dr. Carlstrom was sent to Saudia Arabia and defendants should have made another doctor available. The undersigned finds that those bills should be paid. The undersigned further finds that all other bills resulting from claimant's injuries that are subject to this decision shall be paid by defendants, if not already paid. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injuries of November 11, 1988 and May 6, 1988 are 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). 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 em ployer'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. Page 11 Workmen's Compensation sec. 555(17)a. 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 v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. 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); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. 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). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). 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, educa. Claimant's May 6, 1988 injury did not result in an injury to his shoulders or elbow, nor did it result in a body as a whole injury. Claimant is entitled to 5.70 weeks of permanent partial disability benefits as a result of his May 6, 1988 injury. Claimant's September 5, 1988 alleged injury (file No. 923688) is, in fact, the same and is encompassed in claimant's May 6, 1988 injury represented by file No. 936510. Claimant recovers nothing as a result of any separate September 5, 1988 injury. Regarding claimant's November 11, 1988 injury (file No. 912957), it is concluded that claimant incurred a work-related permanent impairment to his body as a whole as a result of a work-related November 11, 1988 injury to his low back involving the L5-S1 disc. Claimant had a preexisting injury to his low back in the area of L5-S1 that resulted in a preexisting permanent impairment but that said preexisting injury was substantially and materially aggravated and lighted up by claimant's November 11, 1988 injury, thereby resulting in a greater impairment than was originally existing prior to that November 11, 1988 injury. Claimant incurred a July 21, 1989 laminectomy L5-S1 per formed by Dr. Carlstrom, which surgery was the result of and caused by claimant's November 11, 1988 work-related injury. Claimant was working without problems affecting his job prior to his November 11, 1988 injury. Claimant was fired from his employment with defendant employer on October 24, 1989, for the alleged reason that claimant falsified his work application with defendant employer. The major reason for claimant's termination was the fact that claimant incurred an injury on November 11, 1988, which resulted in claimant being unable to perform his prior work duties and required a lighter duty position with defendant employer, which position claimant was performing in a reasonable and satisfactory manner until he was fired on October 24, 1989. Claimant has work restrictions limiting him to certain weight and other restrictions as a result of his November 11, 1988 work injury. Page 13 Claimant has incurred a loss of income and loss of earning capacity as a result of his November 11, 1988 injury. Defendants have proved that there should be an apportionment of disability between claimant's preexisting condition and the 12 percent permanent impairment found by Dr. Carlstrom. Eight percent is the result of claimant's November 11, 1988 injury, and that the other 4 percent was the result of a preexisting condition. Claimant is entitled to have his medical bills incurred with Mercy Hospital and Dr. Jones paid by defendants, as defendants were denying further medical care to claimant and denied that there was any permanent disability or impairment, and that claimant had a right to seek other medical help to alleviate his problems. Claimant incurred a work-related 30 percent industrial disability as a result of his November 11, 1988 injury after taking into consideration claimant's preexisting condition and deducting its effect to arrive at claimant's net industrial disability. order THEREFORE, it is ordered: That in regards to the May 6, 1988 injury (file No. 936510), defendants shall pay unto claimant five point seventy (5.70) weeks of permanent partial disability benefits at the stipulated weekly rate of two hundred thirty-six and 83/100 dollars ($236.83), beginning on the stipulated date of September 13, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Regarding the November 11, 1988 injury (file No. 912957), defendants shall pay unto claimant one hundred fifty (150) weeks of permanent partial disability benefits at the stipulated rate of two hundred twenty-eight and 16/100 dollars ($228.16) per week, beginning on the stipulated date of September 13, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay claimant's Mercy Hospital bill and Dr. Jones' bill. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That as to the September 5, 1988 injury (file No. Page 14 923668), claimant takes nothing from that proceeding. That defendants shall pay the costs of these actions, pursuant to rule 343 IAC 4.33. That defendants shall file an activity reports 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 David D Drake Attorney at Law West Towers Office 1200 35th St Ste 500 W Des Moines IA 50265 Page 15 Mr Jeff M Margolin Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 5-2206; 5-1108; 5-2503 5-1803.1; 5-1804; 5-1806 1807 Filed May 6, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : FLOYD J. ELLIOTT, : : Claimant, : File Nos. 923668 : 936510 vs. : 912957 : FIRESTONE TIRE & RUBBER CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803.1 Found claimant entitled to 5.70 weeks of permanent partial disability benefits as a result of a work injury on May 6, 1988 to his left hand resulting in a 3 percent permanent impairment. This injury found not to involve claimant's body as a whole. Claimant took nothing from a September 5, 1988 injury. This alleged injury actually was encompassed in claimant's May 6, 1988 work injury. As to a November 11, 1988 injury: 5-1804 Claimant awarded 30 percent industrial disability. 5-1108 Found claimant incurred a work injury which resulted in claimant incurring a L5-S1 laminectomy, restrictions and an additional 8 percent permanent impairment to claimant's preexisting 4 percent permanent back impairment. 1807 Claimant was fired from his job eleven months after his November 11, 1988 work injury. Defendants contend it was because of his work application which was falsely filled out. Deputy found that this was not the sole reason for firing claimant and that claimant's work injury was the major reason claimant was fired. 5-2502 Claimant allowed additional medical defendants refused to pay. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ELEANOR CARON, Claimant, vs. File No. 923669 FOURTH JUDICIAL DISTRICT, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 7, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law P.O. Box 1588 Council Bluffs, Iowa 51502 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9998 Filed July 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ELEANOR CARON, Claimant, vs. File No. 923669 FOURTH JUDICIAL DISTRICT, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 7, 1992. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RANDY LEE FORD, : : Claimant, : : vs. : : KLEIN MANUFACTURING CO., : : Employer, : File Nos. 923689 : 891406 and : : A R B I T R A T I O N U. S. F. & G., : : D E C I S I O N and : : GREAT AMERICAN INSURANCE : COMPANY, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Randy Ford as a result of an alleged injury to his right shoulder which occurred on June 20, 1988 (Agency File No. 891406) and an alleged injury to his left shoulder which occurred on February 16, 1989 (Agency File No. 923689). The cases were consolidated on May 21, 1990. A hearing was held on December 18, 1990 and the case was fully submitted at the close of the hearing. Leave was granted to allow the parties to file briefs. The record consists of testimony of claimant; Gary Bauer; and Jeannette Mullahey; joint exhibits A, B, C, and D; and, claimant's exhibits 1 and 2. Claimant offered exhibits 3 and 4. Defendant Second Injury Fund of Iowa raised an objection to the admission of the evidence based on untimeliness of service under 343 IAC 4.17. The objection was sustained, and claimant made an offer of proof with respect to the exhibits 3 and 4. issues In accordance with the prehearing reports submitted, the following issues were presented for resolution: 1. Whether claimant sustained an injury to his left Page 2 shoulder on February 16, 1989 which arose out of and in the course of his employment; 2. Whether the alleged injury is the cause of any temporary or permanent disability; 3. Whether claimant is entitled to temporary total or healing period benefits; 4. Whether claimant is entitled to any permanent partial disability for the left shoulder as a result of the alleged February 16, 1989 injury; 5. Whether claimant's injury is scheduled or unscheduled; and, 6. Whether the Second Injury Fund is responsible for payment of benefits to which claimant may be entitled. In addition, defendant employer raised the following affirmative defenses: 1. Whether claimant gave proper notice to the employer of the left shoulder injury pursuant to Iowa Code section 85.25; and, 2. Whether claimant mitigated his damages. It is noted that defendant employer, Klein Manufacturing, was insured by Great American at the time of the June 20, 1988 injury to claimant's right shoulder. The prehearing report with respect to the claim against this insurance company shows no disputed issues among the parties for the June 20, 1988 injury. (Agency file no. 891406). findings of fact Claimant is a 34-year-old man, married with two children. He completed the eleventh grade in high school, worked for a few months as a dishwasher and gas station attendant, and then entered the U.S. Army. Claimant finished high school while in the Army, and received an honorable discharge in 1977. He received special training in field communications, and worked with land and cable telephone lines. Claimant has a varied employment history post-service, including positions on assembly lines; as a grid caster; with the Parks and Forestry Department of the city of Burlington; as an electrician; and, as a truck driver. Claimant began working for defendant employer in 1987. In June of 1988, claimant held a production job and made water tanks by rolling sheet metal and riveting the side seams to form a cylinder. This job required extensive heavy lifting, bending, and stooping. On June 28, 1988, claimant was lifting the bottoms of eight foot round water tanks overhead to insert them into the tank forms. He was using his right arm, and during one particular lift felt immediate, severe pain in his right Page 3 shoulder. He finished work, returned to work the following day, and reported the injury to either the personnel department or the plant manager. Claimant was sent to Alice Hillyer, D.C., a chiropractor, who treated claimant from March 1988 to July 1988. Claimant also treated with Gary Mansheim, M.D., for shoulder problems from June of 1987 through July of 1989. He was taken off work and began physical therapy on July 21, 1988. Dr. Mansheim's notes indicate that claimant sustained a shoulder strain, bicep tendonitis, and a possible rotator cuff tear (Joint Exhibit A). Claimant was referred to Jerry Jochims, M.D., an orthopaedic specialist on September 1, 1988. Upon review of x-rays of the right shoulder, which Dr. Jochims found to be "entirely within normal limits", claimant underwent injections of the subacromial bursa. Subsequent rotator cuff studies taken September 15, 1988, were deemed "normal". (Jt. Ex. A) During this time, claimant was on light duty work. During his tenure as claimant's treating physician, Dr. Jochims performed a variety of tests to determine the nature and extent of claimant's physical problems: nerve conduction studies and an EMG were performed (normal); an ultrasound and an arthogram (normal); x-rays were taken (normal). Claimant continued to see Dr. Jochim in September, October, November and December of 1988. On February 13, 1989, claimant met with Koert Smith, M.D., an associate of Dr. Jochims, and complained of increased pain in the shoulder. Dr. Jochims injected the right coracoacromial ligament on February 22, 1989. In March of 1989, claimant again suffered a flare-up of pain in the right elbow and shoulder, and was referred to Keith Riggins, M.D., for a second opinion. Dr. Riggins made the following assessment on March 27, 1989: Mr. Ford returns having accomplished magnetic resonance imaging which is reported as demonstrating the presence of a significant sized Hillsachs lesion in the posterior aspect of the humeral head. At this time it is my impression that Mr. Ford most likely sustained a dislocation of the humeral head while his arm was in the erect position which resulted in a Hillsachs lesion of the humeral head and leaves the shoulder inherently unstable. He is scheduled for a bonescan examination of the right shoulder with a return visit on the 29th of March. Page 4 (Jt. Ex. A) Claimant underwent a diagnostic arthroscopy of the right shoulder, wherein Dr. Riggins performed an excision of the glenoid labrum tear on March 30, 1989. Claimant remained off work until May 26, 1989: He is now essentially 8 weeks post diagnostic arthroscopy of the right shoulder with findings of Hill-Sacs lesion of the humeral head and glenoid labrum tear. He continues to perform subscapularis strengthening exercise program without visits to physical therapy. He continues to note a painful click on forward elevation of the extremity which he states is improved over its prior status. Examination of the right shoulder demonstrates range of motion to be full and complete. The humeral head can be palpated to slip within the glenoid on forward elevation of the extremity without flank dislocation. .... Recommendation: I do not believe any further surgical treatment would be of benefit to Mr. Ford's shoulder. He is advised to continue subscapularis strengthening program on a permanent basis. He is considered unable to engage in occupational activities which require function with the arms extended forward or overhead but is essentially unlimited in terms of activities performed with the arms essentially at the side. No return visits are required. (Jt. Ex. A) On June 5, 1989, Dr. Riggins restricted claimant's work activities: Mr. Ford should not engage in activities which require repetitive extension of the arms forward or above an angle of eighty degrees with the horizontal on the left. He is under no particular limitation so far as utilization of the extremity at waist level is concerned. (Jt. Ex. A) Dr. Riggins also gave claimant a 12 percent functional impairment to the upper extremity due to the limitation of active motion rather than passive motion in the shoulder joint. (Jt. Ex. A). Claimant was released to return to work. In September of 1989, claimant returned to Dr. Riggins: Problem: Pain left shoulder. Page 5 Subjective history: The patient returns on the 20th of September relating painful snapping of the left shoulder which he states has been present since February 1989 and attributes to lifting heavy objects overhead in the course of his employment. He had previous similar problems in the right shoulder which was diagnosed to be secondary to chronic sublaxation and presence of small Hill Sachs lesion. This has been unimproved following arthroscopic debridement of the glenoid labrum tear. Examination of the left shoulder demonstrates repeated inferior sublaxation of the humeral head on overhead elevation of the extremity. X-ray examination of the shoulder including subacromial and axillary views demonstrates anterior subluxation of the humeral head on axillary view. Diagnosis: Recurrent dislocation shoulder 813.01. Recommendation: The patient is scheduled for magnetic reasonance imaging of the Lt shoulder to evaluate for possible Hill Sachs lesion with return visit to follow. (Jt. Ex. A) Page 6 Dr. Riggins also provided an impairment rating to claimant's left shoulder: Randy Ford has been previously interviewed and evaluated regarding his left shoulder. Impairment when rated in accordance with the Guide to Evaluation to Impairment yields zero percent (0%) impairment in view of presence of full range of motion. This is considered inappropriate in that it fails to take into account the compromise of utilization of the extremity imposed by sublaxation with elevation of the extremity. Permanent partial impairment is rated at twelve percent (12%) of the upper extremity. This value converts to seven percent (7%) impairment of the whole person. (Jt. Ex. A) applicable law and analysis The first issue to be resolved is whether claimant gave the employer sufficient notice of the alleged injury to his left shoulder. Iowa Code section 85.23 provides the statutory requirements necessary for proper notice of a possible work related injury: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. The ninety day time period for giving notice to the employer does not begin to run until the worker should know that his injury is "both serious and work connected." Robinson v. Department of Transportation, 296 N.W.2d 809, 812 (Iowa 1980). Recognizing the "seriousness" requirement of the notice of the injury provides the worker appropriate relief from the rigid ninety day rule in the case where a worker thinks the injury is minor and will heal in a few days, but later becomes compensable. The burden of proof rests with the employer to show that the employee failed to give sufficient notice of a possible injury. Claimant testified that after treatment of his right shoulder, he began to use more extensively his left arm and shoulder. Specifically, between June of 1988 and March of 1989, claimant states he favored his right shoulder, and as a consequence strained his left shoulder. Claimant stated that during a meeting with Jeanette Mullahey Page 7 (personnel administrator) and Gary Bauer (plant manager), he told them he was straining his left shoulder, but claimed he did not know it was work related at that time. Dr. Mansheim's office notes indicate that the first complaint of left shoulder strain came on July 26, 1989. Both Jeanette Mullahey and Gary Bauer testified at the hearing. Mr. Bauer indicated that at no time did claimant make any statements regarding his left shoulder. He stated that the general procedure to report any possible work-related injury was to send the employee to Ms. Mullahey so that a report of first injury could be filled out and sent to the insurance company. He stated he was more likely to make a report of a complaint if the employee has already incurred a work related injury. However, he also admitted that he does not consider strains work related injuries. Ms. Mullahey stated that she had had many conversations with claimant, and did not become aware of a left shoulder injury until July of 1989. Apparently claimant had notified Ms. Mullahey regarding a prior work-related injury, and indicated that his left shoulder was injured as a result of favoring his right shoulder. At that time, claimant told Ms. Mullahey that his left shoulder began to hurt sometime between January and March of 1989. During a second telephone conversation with the claimant, which occurred on July 7, 1989, which was after the first report of injury was filed, Ms. Mullahey testified that claimant indicated the accident to his left shoulder happened on February 16, 1989. Neither the plant manager (Gary Bauer) nor the personnel administrator (Jeanette Mullahey) who both testified at the hearing, could recall that claimant told them that his left shoulder hurt. Formal reporting procedures had been followed in all of claimant's previous workers' compensation claims with the company. The undersigned finds that if the company had been properly notified of claimant's left shoulder problems in February of 1989, a report would have been filled out. Although denial of a claim based on insufficient notice of an injury to the employer is rare, the undersigned finds that the employer sustained its burden of proof by showing that claimant did not give proper notice of the injury to his left shoulder. Most persuasive is claimant's own admission that he knew the left shoulder began to hurt during February due to his actions of favoring the right shoulder and thereby putting more stress on the left shoulder. At that time he knew, or should have known, that the left shoulder was a potentially serious injury because he had the same symptoms in the left shoulder as he has had in his right shoulder, which had required extensive medical treatment. Furthermore, claimant's position is that he told the employer that he injured his left shoulder sometime between January and March of 1989. Yet, claimant was not treated by Page 8 a doctor for the left shoulder until July of 1989. Claimant had prior work-related injuries which he pursued vigorously, and he appeared to be the type of person who would demand medical care from the employer if the employer did not immediately respond to his needs. And, it is documented in Dr. Mansheim's medical records that claimant first knew of the work-related condition in February of 1989. (Jt. Ex. A). Dr. Riggins' notes dated September 20, 1989, state that claimant reported a painful snapping of the left shoulder which had been present since February of 1989. (Jt. Ex. A). order THEREFORE, it is ordered: That claimant take nothing further from these proceedings. That costs are assessed to the claimant. Signed and filed this ____ day of April, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr William Bauer Attorney at Law 100 Valley Street PO Box 517 Burlington Iowa 52601 Mr Jon Swanson Attorney at Law 900 Des Moines Bldg Des Moines Iowa 50309 Page 9 Mr Mark D Cleve Mr John D Stonebraker Attorneys at Law PO Box 2746 Davenport Iowa 52809 Mr Robert D Wilson Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines Iowa 50319 1402.50 Filed April 2, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : RANDY LEE FORD, : : Claimant, : : vs. : : KLEIN MANUFACTURING CO., : : Employer, : File Nos. 923689 : 891406 and : : A R B I T R A T I O N U. S. F. & G., : : D E C I S I O N and : : GREAT AMERICAN INSURANCE : COMPANY, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 1402.50 Claimant sustained a right shoulder injury. He continued to work, and strained his left shoulder. Claimant testified he told his supervisor that his left shoulder hurt. However, the greater weight of the evidence shows that the employer did not have any notice of the injury until claimant filed his petition, almost 6 months after the alleged injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : NEIL W. RICHARDSON, : : File No. 923699 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N HAROLD KRAUSE, : : Employer, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Neil Richardson, claimant, against Harold Krause, employer, defendant, for workers' compensation benefits as a result of an alleged injury on September 5, 1989. It is noted that the caption, as it appears in the hearing assignment order, was changed at the time of hearing to properly reflect the spelling of defendant's name and to drop Grinnel Mutual as a party. On February 25, 1992, a hearing was held on claimant's petition and the matter was considered fully sub mitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant at the time of the alleged injury. 2. Claimant is seeking temporary total or healing period benefits only from September 5, 1989 through June 3, 1991. Defendant agrees that he was not working from September 5, 1989 through January 1990 and from January 23, 1991 through June 3, 1991. Claimant agrees he is not enti tled to such benefits from March 1990 through January 22, 1991. 3. At the time of injury, claimant's gross rate of weekly compensation was $288.00. He was married and enti tled to four exemptions. This establishes a weekly rate of compensation of $197.69, according to the Industrial Commissioner's published rate booklet for FY 90. 4. The charges in the medical bills submitted by claimant at the hearing are fair and reasonable. ISSUES Page 2 The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to temporary total disability benefits; and, III. The extent of claimant's entitlement to medical benefits. The issue of the causal connection of the injury to permanency or the extent of claimant's entitlement to perma nent disability benefits was bifurcated from this proceeding and shall be heard at a later date. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant placed claimant's credibility at issue as to the occurrence and extent of the injury and disability. From his demeanor while testifying, claimant is credible. Claimant worked for Harold Krause as a farmhand from August 1989 until the injury herein. When he was hired, claimant replaced a former farmhand. Krause's annual expen diture for farmhands well exceeded $2,500 annually. Claimant received a salary of $1,200 per month plus his fam ily's use of a farmhouse located on Krause's farm. Claimant's duties consisted solely of farm labor type work. On or about September 5, 1989, claimant injured his right knee while assisting Krause in repairing the well located at the farmhouse used by claimant's family. There was no dispute that claimant was performing work at the time within the scope of his employment. Although Krause testi fied that he did not actually observe claimant injure him self, he stated that he did not know what claimant was doing immediately prior to the time claimant began to complain of an injury. Claimant was credible and stated that he twisted his right knee while using a pipe wrench on a well pipe. Krause admitted that claimant appeared to have injured his knee at the time and that claimant left work that day to seek medical attention. Claimant first sought medical attention for right knee pain from Yotin Keonin, M.D., a general surgeon. Dr. Keonin diagnosed a meniscus tear in the knee and ordered claimant off work and to use crutches. Claimant then underwent an arthroscopy surgery on September 25, 1989, in which a por tion of the meniscus was removed. After a few weeks, claimant became impatient with his recovery and sought another opinion from an orthopedic surgeon, Samir Wahby, M.D., in December 1989. Dr. Wahby performed another ortho Page 3 scopic surgery with a partial removal of meniscus. When he again became dissatisfied with recovery from this second surgery, claimant returned to Dr. Keonin. On January 14, 1990, claimant reported to Dr. Keonin that he had a new job and with increased activity of his knee including an inci dent in which he stepped into a hole, he experienced an increase in right knee pain. Dr. Keonin prescribed physical therapy at that time with no vigorous activity. Dr. Keonin stated in his report of February 1990 that claimant was still healing from the surgery. Claimant stated that he remained off work until mid-March 1990 following the second surgery. However, he appeared confused on this matter as he later admitted that he earlier testified that he moved out of Krause's house in January 1990 to accept another job . It is found that claimant returned to work following the second surgery on January 14, 1990, based upon the office note of Dr. Keonin. It was stipulated that claimant was not entitled to temporary total disability benefits through January 22, 1991. During 1990, claimant was appar ently working but had not fully healed from the injury. During this time claimant received treatment from Dr. Keonin and later from John Albright, M.D., an orthopedic surgeon at the University of Iowa Hospitals and Clinics. Both Dr. Keonin and Dr. Wahby causally relate their treatment of claimant's right knee to his injury on September 5, 1989. Beginning on January 23, 1991, claimant was again off work receiving treatment from Dr. Albright who diagnosed another problem, plica syndrome. At this time, claimant underwent a third surgery called a plicectomy. Although Dr. Albright stated that such a syndrome is not a result of injury, he opined that the injury exacerbated and inflamed the plica enough to cause flare-ups and his knee symptoms necessitating this additional surgery. Claimant was released to return to work on March 1, 1991, following this surgery. Claimant states that his right knee is still giving him problems especially at night. He states that he is still seeing Dr. Albright. On July 22, 1991, claimant began working full-time for a local John Deere dealership. On November 1, 1991, Dr. Albright stated that he could not rate claimant's permanency as claimant had not yet reach maximum healing. This is the last report from Dr. Albright in the record. It is found that claimant has not reached maximum healing at this time but returned to work on July 22, 1991. Claimant has had prior injuries and accidents. In 1988 he injured the meniscus of the left knee and received arthroscopic surgery. He recovered from this injury. In 1982, he was injured while working with a skid loader. There is some mention of a right leg complaint after this incident. Primarily, the injuries involved other areas of the body. Claimant states he recovered from this injury. It is found that he did. Defendant also points to a physi cal therapy note indicated that claimant had his own crutches prior to the injury. This matter was cleared up by claimant's wife at hearing. These crutches were hers from an injury she had suffered. Page 4 The causal connection views of Drs. Keonin, Wahby and Albright are uncontroverted. It is found that their treat ment is the result of the work injury of September 5, 1989. Given their uncontroverted reports indicating the need for treatment, the treatment is found reasonable as well. With reference to the requested medical mileage expenses, it is found from claimant's uncontroverted testi mony that the listing of medical services provided in exhibit 17 are causally connected to the injury with the exception of the dental appointments marked by a red check mark on the exhibit. Each date of service required claimant to travel. It is found that a round trip for claimant to travel to Iowa City is 550 miles; to Lake City is 45 miles, and to Dr. Wahby is 45 miles. The undersigned leaves to counsel the chore of adding up the specific total of miles which should have been done prior to hearing according to the hearing assignment order. Finally, despite his return to work, it is found that claimant has not as yet reached maximum healing and still requires treatment. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponder ance of the evidence that claimant received an injury aris ing out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circum stances of the injury. see generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a per sonal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. II. Claimant is entitled to weekly benefits for tem porary total disability or healing period benefits if perma nency is subsequently established under Iowa Code section 85.33 or 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not antici pated, whichever occurs first. Given the findings as to when claimant was off work, these benefits will be awarded accordingly. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). Page 5 In the case at bar, the requested expenses were found causally connected and constitute reasonable treatment of the injury. It was stipulated that the charges were reason able. The requested expenses will be awarded. Claimant is also entitled to $.21 per mile for medical mileage found causally related in the findings of fact. ORDER 1. Defendant shall pay to claimant temporary total disability/healing period benefits from September 5, 1989 through January 14, 1990 and again from January 23, 1991 through June 3, 1991, at the rate of one hundred ninety-seven and 69/l00 dollars ($197.69) per week. 2. Defendant shall pay the requested medical expenses listed in the prehearing report including the requested mileage at the rate of twenty-one cents ($.21) per mile. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendant shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 3. Defendant shall pay accrued weekly benefits in a lump sum. 4. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendant shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendant shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. 7. The matter shall be set back into assignment for prehearing and hearing on the extent of permanent disability benefits, if any, to which claimant is entitled. Signed and filed this ____ day of March, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. E. W. Wilcke Attorney at Law 826 1/2 Lake Street P O Box 455 Spirit Lake, Iowa 51360 Page 6 Mr. Willis J. Hamilton Attorney at Law 606 Ontario Street P O Box 188 Storm Lake, Iowa 50588 Mr. Russell S. Wunschel Attorney at Law 805 N Main Street P O Box 883 Carroll, Iowa 51401 5-1803 Filed March 13, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : NEIL W. RICHARDSON, : : File No. 923699 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N HAROLD KRAUSE, : : Employer, : Defendant. : ___________________________________________________________ 5-1803 - Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : STEPHEN P. MCANDREWS, : : File No. 923887 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SECOND INJURY FUND OF IOWA, : : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding for second injury fund benefits brought by the claimant, Stephen P. McAndrews, against the Second Injury Fund of Iowa concerning an alleged first injury of October 15, 1987 and an alleged second injury of May 4, 1989. Claimant's employer S.I.P.C.O. n/k/a Monfort, Inc., is not a party to this proceeding. This matter came for hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa on August 6, 1992. The first report of injury is on file. The record consists of the testimony of claimant and of joint exhibits 1-26a and 26b and of defendant's exhibits A, C, and D. STIPULATION AND ISSUES Pursuant to the hearing assignment order, the prehearing report, and the oral stipulation of the parties at time of hearing, the parties have stipulated to the following: 1. That claimant received a gross weekly wage of $322.00 and was single and entitled to two exemptions at the time of his alleged injuries entitling him to a weekly compensation rate of $202.32; 2. That claimant did sustain either an occupational disease under chapter 85A or an injury arising out of and in the course of his employment under chapter 85 on May 4, 1989; 3. That the commencement date of any permanent disability entitlement from any source is February 8, 1990. The parties further stipulated that the employer has paid claimant six percent permanent partial disability as regards to the right knee injury of October 15, 1987 and 44 weeks of permanent partial disability with regards to the bilateral carpal tunnel conditions of May 4, 1989. The latter payment was made pursuant to section 85.34(2)(s) and relates to a ten percent permanent partial disability rating as to each arm. The issue remaining to be decided is whether claimant is entitled to second injury fund benefits under our Act. Page 2 Included in that issue are the questions of whether claimant sustained an injury and not an occupational disease; whether claimant sustained permanent disability causally related to each injury, as whether second injury fund benefits are payable where the alleged second injury is to two members and not one member only; and whether claimant's industrial disability, if any, exceeds the sum of the alleged scheduled injuries. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence finds: Claimant is 29 years old and a high school graduate. He has taken community college courses in taxidermy, has taught community college courses in taxidermy and has functioned on a part time basis and had part time self employment as a taxidermist. Claimant's part time employment as a taxidermist was subsequent to his Monfort employment. Claimant earned minimum amounts as a taxidermist and felt a need to leave that work as it produced symptoms bilaterally in his upper extremities. Claimant held a variety of positions from his high school graduation until his employment with Monfort in April 1987, generally in building maintenance. Claimant has sought work in that field since his release from Monfort on May 19, 1989 and has found no work. Claimant's first position after Monfort was as a clerk and manager of a speciality book store. Claimant earned a gross salary of $275.00 per week working approximately a 60 hour week at the book store. He also received a seven percent commission on selected items sold. His commission earnings averaged approximately $100.00 per week. Claimant left his book store position in approximately May 1992. He is now employed as shipping and receiving clerk in a manufacturing plant. Claimant earns $5.50 per hour working a 40 hours week. He does not experience physical difficulties doing the work. He has no expectation of a salary increase. Claimant was earning $5.50 per hour when he started Monfort in April 1987. He was earning $8.05 per hour on May 19, 1989, his last work day at Monfort. Claimant had received $.50 per hour increases on regularly scheduled salary reviews. The top of the wage scale was $9.00 per hour. Claimant testified he would have reached that maximum salary at the time of his next evaluation due two weeks subsequent to the date of his termination. Claimant initially worked in the Monfort transfer department pushing carcasses. He had a work incident on October 15, 1987 when he slipped on a piece of ice in the cooler and twisted with his weight on the right leg. His knee popped. Claimant was examined at Iowa Occupational Medicine on that date, apparently by David T. Berg, D.O. Office notes of that date indicate that claimant had swelling of the right knee as well as decreased range of motion in the knee and tenderness along the anterior and medial knee border. The impression was of right knee strain. Claimant was advised to use a knee support and Page 3 crutches. A right knee x-ray indicated that the right knee joint was intact; the patella was located; and that no focal bony injury or other abnormality was seen. Claimant was referred to Peter Wirtz, M.D., who diagnosed ligamentous strain of the right knee on October 21, 1987, and recommended a program of movement and strength exercises. On October 30, 1987, Dr. Wirtz released claimant to return to work with "some physical limitations initially until he regained his full strength...." On November 2, 1987, Dr. Wirtz reported that claimant had tolerated his work return well albeit with some knee soreness. Dr. Wirtz next saw claimant on March 3, 1988. Dr. Wirtz then noted that claimant continued to have symptoms with [beef] lugging and that claimant's knee became wobbly on weight bearing and would grind with stair climbing and descending. Physical examination revealed that claimant was tender over the patellar tendon and quadriceps tendon. Claimant had full range of motion of the knee; ligaments were intact and there was no anterior drawing. The diagnosis was of muscle imbalance with subluxation of the right patella. Claimant was to avoid heavy strenuous lifting and independent weight bearing with the right knee as such could precipitate further patellar symptoms or a possible need for more restrictions or surgery or both. Dr. Wirtz provided claimant with a copy of those restrictions. Claimant periodically presented the restrictions to his Monfort supervisors when requested to perform work outside the restrictions. Subsequent to his return to work after his knee incident, claimant worked as a carcass ribber. Claimant would hold a six-inch knife in his right hand, stick the knife into the carcass between the seventh and eighth rib between the saw cut that had already been performed, then switch the knife to his left hand and perform the same procedure on the left side. Approximately 720 half carcasses were cut an hour. Claimant worked an 8-10 hour day usually during a six day week. Claimant performed this job for his last ten months at Monfort. Claimant experienced upper extremity and hand symptoms with pain in the hands, elbow and shoulders from early on with symptoms progressing in early 1989 to the point where claimant had numbness which made gripping the knife very difficult. Despite claimant's repeated requests for a doctor's referral, the company did not permit claimant to see an authorized physician until subsequent to his May 19, 1989 termination. Claimant was seen at Iowa Occupational Medicine apparently by James Blessman, M.D., on that date. Claimant then had complaints of bilateral, almost identical, upper extremity pain. The impression was tenderness possibly merging into carpal tunnel. EMG studies of June 9, 1989, confirmed active carpal tunnel syndrome. Claimant was referred to Dr. Wirtz who saw him on August 17, 1989. Dr. Wirtz then diagnosed bilateral carpal tunnel syndrome and bilateral deQuervain's disease. Dr. Wirtz performed left carpal tunnel release and a left deQuervain's release on Page 4 September 18, 1989. He performed a right carpal tunnel and right deQuervain's release on December 4, 1989. Dr. Wirtz's office notes from August 17, 1989 through December 6, 1991 contained no discussion of claimant's right knee condition. On December 8, 1990, Dr. Wirtz noted that claimant had continued weakness and sensory deficit secondary to his carpal tunnel syndrome and assigned claimant a ten percent permanent partial impairment of the right upper extremity and a ten percent permanent partial impairment of the left upper extremity. In the medical report of September 14, 1989, Dr. Wirtz acknowledged that he had not followed claimant for his right knee since seeing claimant on March 3, 1988. He then indicated that claimant's knee was asymptomatic on August 17, 1987, and for that reason he believed claimant's knee condition had responded without functional limitation or impairment. Jerome G. Bashara, M.D., evaluated claimant on July 20, 1990. His diagnosis was work related bilateral carpal tunnel and work related deQuervain's syndrome. Dr. Bashara restricted claimant from repetitive use of the wrist, thumbs, and hands. The doctor assigned claimant a five percent permanent partial impairment of the right upper extremity and a five percent permanent partial impairment of the left upper extremity under the AMA Guides To The Evaluation of Permanent Impairment, (3rd Ed.) as a result of claimant's surgery, mild loss of motion and sensory changes in the hands. Dr. Bashara diagnosed traumatic chrondromalacia [of the right] patella with a stretch injury to the medial retinacular and mild lateral subluxation of the patella. The doctor subsequently described claimant's knee condition as, in lay terms, a partially torn ligament and a crushing injury to the cartilage behind the right knee cap. Dr. Bashara related that condition to claimant's October 15, 1987 work injury; the doctor restricted claimant from prolonged squatting, kneeling and stair climbing; and assigned claimant a six percent permanent partial impairment of the lower extremity as a result of mild lateral subluxation of the patella, mild loss of knee motion and marked crepitation on knee movement. The parties deposed Dr. Bashara on March 23, 1992. Dr. Bashara then took exception with Dr. Wirtz's September 14, 1989 letter stating that claimant's knee had responded without functional limitation or impairment subsequent to March 3, 1988. Dr. Bashara indicated that Dr. Wirtz's medical note of August 17, 1989 did not mention his knee or any examination of the knee and for that reason Dr. Bashara would be "very confused by a letter that was written based on no written evidence of any medical notes." (Bashara Deposition, page 19). Dr. Bashara's opinion that claimant has a six percent permanent partial impairment of the lower extremity related to his October 15, 1987 work injury is accepted over Dr. Wirtz's opinion that claimant has no functional limitation or impairment as a result of that condition. Dr. Bashara's Page 5 opinion is more consistent with the evidence presented overall. Claimant had continuing symptoms as of March 3, 1988. Dr. Wirtz imposed restrictions as of that date. Claimant continued to work under those restrictions until his termination at Monfort. There is no evidence that Dr. Wirtz examined claimant or otherwise obtained information relative to claimant's knee condition from claimant after March 3, 1988. For that reason, his opinion is given lesser weight than that of a physician who had actually evaluated and examined claimant at a time when permanency or lack of permanency relative to the knee condition could be determined. On February 21, 1991, Dr. Wirtz indicated that claimant's bilateral hand condition resulted from repetitive use, being an overuse syndrome which developed simultaneously although it could and did manifest on different occasions. Dr. Wirtz agreed that claimant's hand use at work was extensive and greater than hand use among the general population. He agreed there was a direct causal relationship between the hand condition and the employment and that the hand condition was a natural incident of the employment, incidental to the employment and not independent of the employment. Identical questions were posed to Dr. Bashara. Dr. Bashara gave substantially similar responses. CONCLUSIONS OF LAW As noted our sole concern is whether claimant is entitled to second injury fund benefits and the nature and extent of any second injury fund benefit. Initially, defendant argues that claimant is not entitled to second injury fund benefits in that claimant's bilateral carpal tunnel syndrome of May 4, 1989 is an occupational disease and not a injury under chapter 85. Iowa workers' compensation law distinguishes occupational diseases from work injuries. An occupational disease is a disease which arises out of and in the course of the employee's employment. The disease must have a direct causal connection with the employment and must follow as a natural incident from injurious exposure occasioned by the nature of the employment. While the disease need not be foreseeable or expected, after its contraction, it must appear to have had its origin in a risk connected with the employment and to have resulted from that risk. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of the occupation is not a compensable occupational disease. The claimant need meet only two basic requirements to prove causation of an occupational disease. First, the disease must be causally related to the exposure to the harmful conditions in the field of employment. Second, the harmful conditions must be more prevalent in the employment than in everyday life or other occupations. Section 85A.8; McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Additionally, in Noble v. Lamoni Products, File numbers 857575 and 851309 (App. Decn., filed May 7, 1992), the Page 6 industrial commissioner ruled that the legislature intended that the word disease as used in chapter 85A be given its plain meaning. The Commissioner further ruled that when the word disease is given its plain meaning, the word covers a broad range of maladies with a variety of causes but does not refer to the results of trauma. The Commissioner noted that carpal tunnel syndrome is not caused by an invasion of the body by an outside agent but by a series of micro-traumas spread over time such as are commonly found in cumulative injuries. The Commissioner found that carpal tunnel syndrome as the result of micro-trauma constitutes an injury, and not a disease. Claimant's carpal tunnel syndrome is round to be a traumatic cumulative injury compensable under chapter 85 and not an occupational disease under chapter 85A. We next determine whether claimant has met the threshold requirements for entitlement to second injury fund benefits. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Initially the Fund has argued that fund liability cannot be triggered in that claimant had no permanent impairment as a result of his October 15, 1987 knee injury. As stated in the above findings of fact, Dr. Bashara's opinion as to permanent impairment casually related to the work-related knee injury has been accepted over Dr. Wirtz's opinion of a lack of a causal relationship. Additionally, even while claimant remained employed with Monfort, his knee injury prevented him from engaging in heavier labor. Therefore, claimant has established a first injury and a permanent loss of a use on account of that injury. The parties appear not to dispute that claimant had a Page 7 second injury. Defendant does argue, however, that recovery is not possible in that claimant's alleged second injury is to two arms and not to "another one such organ." Defendant reads section 85.64 too narrowly. The benevolent intent behind the Second Injury Fund Act, namely, encouraging the hiring of handicapped workers would be thwarted if second injury fund benefits were available to a handicapped individual who had lost only one other member in a subsequent injury but were not available to a handicapped individual who had lost more than one specific member in a second injury. Both Drs. Wirtz and Bashara have related claimant's second injury to his work and related permanent impairment resulting from such injury to claimant's work. Claimant is found to have established both a first and second loss as required to trigger second injury fund liability. As the Fund is only responsible for any industrial disability present after the second injury that exceeds the scheduled disability attributable to the first and second injuries, a determination of claimant's industrial disability, if any, must be made. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of Page 8 disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant is a younger worker and high school graduate. He has some special skills and training as a taxidermist although his injuries apparently prevent him from pursuing that activity on a full time basis. He has restrictions as to repetitive movements of the hands, arms and thumbs as well as restrictions on kneeling, squatting and stair climbing. It appears that the March 3, 1988 restriction on heavy lifting and weight bearing on the right knee also remains in place. Those restrictions likely preclude claimant from obtaining work in a packinghouse or other heavy industry which work claimant could have obtained prior to his work injuries. Indeed, claimant apparently engaged in an extensive job search while receiving unemployment benefits and was unable to find work for a prolong period. It is noted that claimant's job search was limited to maintenance and janitorial type positions for which he may well be less well-suited given his work injury. Claimant now has obtained work in two positions since his injury. One was a clerking and managerial job; the other a clerking and receiving job. These jobs all appear to be within claimant's physical capacities and his physical restrictions. These jobs have a wage scale which approximates or is slightly lower than that of an industrial worker. Further, claimant is a younger worker who, given his education and intelligence, likely has greater capacity for retraining than would have an older worker. Hence, claimant, overall, has less loss of earning capacity than would a worker with like restrictions but whose education, experience and capacity for retraining confine him to manual labor positions. Claimant is found to have sustained an industrial loss of 20 percent, equaling 100 weeks of Page 9 industrial disability benefits. Dr. Bashara's rating of six percent permanent partial impairment of the right leg is found appropriate as an assessment of claimant's percentage of permanent loss of use of that leg. Under section 85.34(2)(o) a six percent loss of use of the leg equals an entitlement to weekly compensation for a period of 13.2 weeks. Dr. Wirtz's assessment of permanent partial impairment of ten percent of each upper extremity on account claimant's bilateral carpal tunnel syndrome and bilateral deQuervain's syndrome is accepted over Dr. Bashara's lesser impairment of five percent of each upper extremity. Dr. Wirtz was claimant's treating physician for the upper extremity condition. Dr. Bashara was the evaluating physician only. Under the AMA Guides To The Evaluation of Permanent Impairment, (3rd Ed.), a ten percent permanent impairment to an upper extremity equals a six percent permanent impairment to the body as a whole. Under the combined values chart, a six percent permanent impairment to the body as a whole and a six percent permanent impairment to the body as a whole equals a twelve percent body as a whole permanent impairment. The disability attributable to the second injury is properly evaluated as a twelve permanent partial impairment of the body as a whole under section 85.34(2)(s) in that claimant's loss in the May 4, 1989 work injury was a loss of both members in a single accident. Section 85.34(2)(s) [we note that the parties have not challenged either doctors' finding that claimant's impairment was to the upper extremity and not to the hand. Claimant's symptoms appear to extend into the forearm. Therefore, it is accepted that claimant's loss of use and resulting permanent partial impairment is to his arms bilaterally and not to his hands bilaterally.] A twelve percent body as a whole loss results in an entitlement to 60 weeks of compensation under section 85.34(2)(s). That 60 weeks represents the disability attributable the second injury for which the employer is liable under our Act. The second injury fund then is responsible for industrial disability benefits payable to claimant for 26.8 weeks. That is, one hundred (100) weeks minus thirteen point two (13.2) weeks minus sixty (60) weeks equals twenty-six point eight (26.8) weeks. ORDER THEREFORE, IT IS ORDERED: Defendant pays claimant permanent partial disability benefits for an additional twenty-six point eight (26.8) weeks at the rate of two hundred two and 32/100 dollars ($202.32) with those payments to commence on the sixty-first (61st) week after February 8, 1990, that is, on April 4, 1991. Defendant pays accrued amounts in a lump sum. Defendant pays interest pursuant to Iowa Code section 85.30 from the date of this order. Page 10 Defendant pays costs pursuant to rule 343 IAC 4.33. Defendant files claim activity reports as ordered by the agency. Signed and filed this ____ day of August, 1992. ________________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Arthur C Hedberg Jr Attorney at Law 840 Fifth Avenue Des Moines Iowa 50309 Mr Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 3201; 3202 Filed August 28, 1992 HELENJEAN M. WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ STEPEHN P. MCANDREWS, File No. 923887 Claimant, A R B I T R A T I O N vs. D E C I S I O N SECOND INJURY FUND OF IOWA, Defendant. ___________________________________________________________ 3201; 3202 Second injury fund benefits awarded. Argument that first injury to the knee had not produced permanent disability rejected where claimant had been medically restricted from heavy labor subsequent to that injury. Argument that bilateral carpal tunnel syndrome was an occupational disease rejected. Argument that second injury to more than one other member precludes Fund liability rejected. Where second injury involved simultaneous injury to two members in a single accident, employer liability for second injury was determined under section 85.34(2)(s) even though the employer had actually paid the employee benefits as if the members had been injured in separate accidents. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DAVID HAMER, : : Claimant, : : vs. : : File No. 923913 WISERT PRECAST CONCRETE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by David Hamer against his former employer and its insurance carrier based upon his injury of August 2, 1989. In this case claim is made for payment for the services rendered to David by his spouse, Katheryn Hamer. The record made consists of jointly offered exhibits 1, 2, 3, 4, 5, 7, 8, 10, and 11. The record also contains testimony from David Hamer, Katheryn Hamer and Joyce Beschta. FINDINGS OF FACT David Hamer is a 63-year-old man who was gainfully employed as a truck driver until August 2, 1989, when he was severely injured. The injury resulted in amputation of his left arm and substantial loss of use of his right hand and arm. His vision is impaired. He also sustained a closed head injury. David was not released from hospitalization following the injury until October 13, 1989. His wife and family members provided the principle care for him until November 4, 1989, when home health aide assistance was provided. That assistance continued until September 11, 1991, when David entered Meadowbrook Hospital near Kansas City, Kansas, where he remained until October 25, 1991. Since his release from Meadowbrook David has not had any home health aide or similar assistance except that provided by his family members, principally his wife, Katheryn. During the first three weeks that David was home from the hospital Katheryn devoted a large amount of time to caring for him (exhibit 11, page 49). After three weeks of doing so, she was exhausted and home health aide services were then provided. Those services continued to be provided from November 4, 1989 through September 11, 1991 (ex. 8). Page 2 Katheryn still provided services for David when she was not working. At times when Katheryn was herself incapacitated due to surgery, home health aides were provided on a 24-hour per day basis for David (ex. 2, report dated May 15, 1991). In 1991 the defendants made a determination to discontinue home health aide services for David. There is evidence that he had engaged in some sexually inappropriate behavior with some of the attendants. In view of his well documented head injury such impulsive and inappropriate behavior would not be unexpected. There is some indication in the record that some of David's inappropriate behavior may have preexisted the injury in this case, but it is a common symptom of head injury patients to lack the behavior controls, lack good judgment and self-control which is possessed by most uninjured individuals. His ability to engage in inappropriate behavior does not in any manner prove that he is capable of totally independent living. It was arranged for David to be an inpatient at Meadowbrook Hospital. The reports from Meadowbrook seem to state that he is capable of independently performing the activities of daily living (ADL's), yet those reports also have repeated references to qualifying statements such as "fairly" when defining his independence (ex. 5, p. 44). In the projected discharge plan it was indicated that David would require some assistance with financial concerns and safety issues (ex. 5, p. 38). It is noted that the discharge plan included placing David at the Roosevelt Hotel, a 24-hour assisted living facility which provided three prepared meals per day, an emergency response system in the apartment, 24-hour per day staff, and a licensed home health care provider available on the site (ex. 1, p. 7). The discharge reports from Meadowbrook are evaluated based upon the fact that the writers of those reports expected David to be going into the supervised living setting of the Roosevelt Hotel. David did not go into the Roosevelt Hotel. Family members met him at the airport and took him home where he has remained with his wife up to the present time. Since David has returned home from Meadowbrook his wife has continued to provide for most of his needs which he is unable to provide for himself. She is employed in a sewing store where she sells fabrics, sewing materials and sewing machines. She is paid $6.50 per hour (ex. 11, p. 5). David appears to require some assistance with activities such as bathing, dressing, exercising, and the taking of prescription medications. He requires someone to escort him when attending medical appointments. He is capable of performing some of his food preparation needs, but it is necessary for Katheryn to perform some special services in order to enable David to feed himself. He requires observation and supervison. The record of this case does not contain any detailed itemized statement of the services performed by Katheryn or the amount of time engaged by her in performing those services. It is certain that Katheryn, as a conscientious Page 3 and devoted wife, would care for David to the utmost of her ability regardless of whether or not she were being paid for doing so. It is apparent that during the time home health aides were provided those aides performed some of the services which had customarily been performed in the home by Katheryn prior to the time David was injured. It is also clear that some of the services which Katheryn performs were performed by her prior to the time David was injured. She has always performed much of the laundry, cooking and housekeeping activities in the family. Nevertheless, David's injury has imposed an additional burden upon her. It is difficult to assess the amount of time which Katheryn spends providing for David's needs which would not have been necessary to perform if he had not been injured. The dressing, bathing, medication, and exercising assistance were not required prior to the injury. It was not necessary for her to accompany him to appointments when he traveled outside of the home prior to the time he was injured. He did not require preparation of special meals. These are all additional activities with which she has been burdened as a result of his injury. They are activities which were performed by the home health aides. They are activities which were performed by the hospital staff and nurses during the time when he was hospitalized. They are activities which would be provided by nursing home staff if David were placed in a nursing home. David is not totally helpless. He does, however, require a minimal to moderate level of assistance. Most importantly he requires supervision and observation on a daily and recurring basis. Much is written and stated in the hundred's of pages of evidence in this record regarding the level of David's independence. Much of what was written was obtained in order to justify discontinuation of the home health aide services. The undersigned gives great weight to the fact that the Roosevelt living arrangement is what was selected for David when it appeared as though his wife would not take him back into the home. Actions often speak louder than words and the arrangement which was selected by the Intracorp representative is a strong indication that the Intracorp representative realized that David was not capable of independent living. David's family knows that he is not capable of independent living. The undersigned is fully convinced that David is not capable of totally independent living. While he is capable of being fairly independent, it is still necessary that he be supervised and that assistance be available on those occasions when he needs it. David's needs are such that he does not require actual assistance 24 hours per day. What he does require is that someone check on him and that someone be reasonably available. He requires someone to be in what might be termed an "on call" status. It is certain that the amount of assistance provided by Katheryn varies greatly from day to day. Based upon all the evidence in the record of this case and common knowledge and experience, it is found that, Page 4 on the average, Katheryn provides assistance to David for approximately two hours per day. This has been the situation since David returned from the Meadowbrook facility on October 25, 1991. During those first three weeks when David had been released from the hospital from October 13, 1989 through November 3, 1989, it is found that Katheryn provides services an average of ten hours per day. The initial period of care provided by Katheryn before the home health aide services were started was over a period of 22 days. Since David returned from Meadowbrook up to the date of hearing, 655 days elapsed. CONCLUSIONS OF LAW The real crux of this case is determining how much CNA Insurance is to benefit economically as a result of the fact that David Hamer has a devoted wife who will care for his needs. In comparison to what CNA Insurance would be paying if Katheryn were to refuse to provide for David's needs, any reasonable amount which they might pay her for her services would still be a bargain. Nursing home care costs tens of thousand's of dollars per year. Living in a residential hotel facility like the Roosevelt is likewise quite costly though the exact figures are not in the record of this case. There is nothing in the way of Iowa Supreme Court precedents dealing with the issue of payment for services rendered by a spouse. It is well recognized that in our society there was a time when it was considered the duty of a spouse to care for a disabled spouse. That is no longer the case today since it is common for both spouses in a family to be fully employed outside the home. That fact has been recognized in the well regarded treatise 2 Larson, Workmen's Compensation Law, 61.13(d)(1-4). Katheryn should be paid on a quantum merit basis since to do otherwise would result in no recovery at all for the services she has provided. In section 85.27 of the Code there is found a list of the types of services that are to be provided to an injured employee. Nursing services are expressly included but home health care aide services are not mentioned in the statute. It therefore requires a construction of section 85.27 in order to determine if the types of services which are listed are the only services which an employer is required to provide or whether the listing is merely illustrative. When making this construction it is important to keep in mind the humanitary objectives of the workers' compensation statute. It is intended primarily for the benefit of the worker and worker's dependents. It beneficent purpose is not to be defeated by reading something into it which is not there, or by a narrow and strained construction. Cedar Rapids Comm. School. v. Cady, 278 N.W.2d 298 (Iowa 1979). Further, section 85.38(1) states: "The compensation herein provided shall be the measure of liability which the employer has assumed for injuries...and it shall not be in anywise reduced by contribution from employee or donations from any source." It is difficult to place a construction upon the statue which would require Katheryn Hamer to become the Page 5 unpaid, involuntary care provider for David simply because she is married to him, especially when, but for the marriage, the defendants would be paying large sums to provide for his care in a nursing home or supervised residential care facility of some type. This is especially true since, for part of the time in question, Katheryn reduced her own work hours in order to provide care for David. The situation is one which results in defendants being unjustly enriched as a result of Katheryn's dedication. The most recent agency case dealing with this issue is Henry v. Iowa Illinois Gas and Electric Co., file number 691991 (App. Dec. Nov. 23, 1992). It should be noted that Austin Henry was gainfully employed and not totally disabled. The current agency precedents are somewhat inconsistent with 2 Larson 61.13(d)(1-4). The agency seems to have created a distinction regarding whether or not the spouse is licensed as a nurse. The agency also states that if the services were performed out of the family relationship that the persons who performed them are not entitled to payment. The older agency precedents such as Neilsen v. City of Sioux City, Thirty-third Biennial Report of the Industrial Commissioner 196 (App. Dec. 1977) were in accord with Larson. It has long been recognized in other jurisdictions that the fact that a conscientious spouse may perform the services does not diminish the employer's duty to compensate the spouse as the person who discharges the employer's duty to provide those services. Kushay v. Sexton Diary Co., 394 Michigan 69 228 N.W.2d 205 (Mich. 1975). The term "nursing" used in section 85.27 of the Code is not defined elsewhere. The statute dealing with the licensing of nurses does not provide guidance as to what activities are or are not nursing services. It is well recognized that nurses perform a wide variety of functions ranging from taking notes, drawing blood, assisting physicians, dressing patients, bathing patients, assisting patients to ambulate, and even such things as limited, occasional cleaning patient rooms. While one need not be a registered or licensed nurse in order to perform all functions which are ever performed by nurses, it is clear that the scope of services which are commonly and customarily performed by nurses is quite broad. The fact that a particular function or activity can lawfully be performed by someone other than a licensed nurse does not mean that it is not a nursing function. The American Heritage Dictionary, second college edition, defines nursing as "(1) The occupation of a nurse. (2) The tasks of a nurse." Stedman's Medical Dictionary, 24th edition, defines nursing as "Feeding an infant at the breast; tending and taking care of a child; caring for the mentally or physically ill or infirm; in general, performing the duties of a nurse. (3) The scientific care of the sick by a professional nurse." While it is quite likely that the Page 6 legislature was not intending to provide for breast feeding of injured persons, it is not unlikely that they would have intended to provide for all needed nursing tasks, not just those which are performed by a licensed nurse or which could only lawfully be performed by a licensed nurse. It is determined that "nursing" as used in section 85.27 means all types of care needed by an injured person as a result of the injury and disability. The real test as to what payment is required to be paid is based upon the nature of the services, not the status of licensure of the spouse performing those services. It has previously been found in this case that during the first 22 days David was home from the hospital that Katheryn performed an average of ten hours per day performing the requisite task of bathing, dressing, changing bandages, medicating, and special food preparation for David. Those are all nursing-type services. She is entitled to be compensated for those services. During the time that home health care was provided, those aides performed some of Katheryn's routine housekeeping services. While it is true that Katheryn provided care to David during that period of nearly two years, there was an offset for the amount of normal homemaking services which were provided by the aides. Since the aides were discontinued Katheryn has had to continue to provide services for David. The undersigned has determined that an average of two hours per day is an appropriate amount of time to reflect the amount of care that Katheryn has provided to David in the nature of nursing services. In this case nursing services are distinguished from normal housekeeping and homemaking activities. The normal housekeeping and homemaking activities include things such as cleaning house, doing laundry and cooking meals. It does not, however, include services such as assisting David in bathing, dressing, exercising, arranging his medications for him to take, and the special food preparation activities necessary because of his disability. Normal housekeeping does not include escorting him to medical appointments and to exercise. To the event that some of these services are provided by other family members who are not making claim for payment, Katheryn should be the beneficiary of those services, not CNA Insurance Company and the former employer. The rate at which Katheryn should be paid is also an issue. Katheryn is not a registered nurse, nor is she a licensed practical nurse, nor is she a certified nurse's aide. The best measure of the value of Katheryn's time is the rate at which she is compensated at her regular job, namely, $6.50 per hour. It is Katheryn who provides these services to David, not a registered nurse. Accordingly, the rate of pay Katheryn receives for caring for David should be the rate of pay Katheryn receives for performing other paid activities in her life. The rate of pay she earns at her usual job is a very good, though not necessarily conclusive, Page 7 indicator of the rate of pay which she should receive when providing services for David. It is therefore determined that Katheryn should be paid at the rate of $6.50 per hour for all the hours she has worked up to the date of this hearing. In the future payments Katheryn Hamer should be paid monthly for the services she renders to David. At the present time two hours per day appears to continue to be a reasonable amount of time. With the passage of time it is expected that the rate of pay should increase commensurate with inflation and normal increases in the cost of living. It is therefore determined that during the period of time from October 13, 1989 through November 3, 1989, Katheryn devoted 120 hours to caring for David which, at the rate of $6.50 per hour, entitles her to be paid $1430. It is further determined that during the period of time from October 25, 1991 through the date of hearing, Katheryn devoted a total of 1310 hours to the care of David. At $6.50 per hour this computes to $8515. The combined total owed to Katheryn for the nursing services she had provided to David is therefore $9945. ORDER IT IS THEREFORE ORDERED that defendants pay David Hamer the sum of nine thousand nine hundred forty-five dollars ($9945) for the reasonable value of the nursing services provided to him by his wife Katheryn Hamer and that the payment thereof be made payable jointly to Katheryn and David Hamer. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies to: Mr. Jay P. Roberts Attorney at Law 620 Lafayette St. PO Box 178 Waterloo, Iowa 50704 Mr. John Bickel Mr. Richard C. Garberson Attorneys at Law 500 Firstar Bank Bldg PO Box 2107 Cedar Rapids, Iowa 52406 2501 2505 Filed November 4, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DAVID HAMER, : : Claimant, : : vs. : : File No. 923913 WISERT PRECAST CONCRETE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2501 2505 Spouse awarded $9945 for services rendered caring for totally disabled husband over a period of approximately four years. Payment awarded for nursing type services but not for homemaker type services. Nursing services broadly defined to include dressing, bathing, administering medication, special food preparation, exercising, and accompanying to medical appointments. Pay awarded at rate the wife normally earned in her regular employment. She was not a nurse and held not entitled to nurse's pay scale. Award based on two hours of services per day, not the entire time she was present with her husband. Section 85.27 list of services covered held to be illustrative - not limiting. Section 85.38(1) prevents defendants from recovering credit for services gratuitously provided by others.