Page 1 before the iowa industrial commissioner ___________________________________________________________ : DONALD RICKELS, : : Claimant, : : vs. : : File No. 924674 IOWA STATE MEN'S REFORMATORY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Donald Rickels, against his employer, State of Iowa at the Men's Reformatory, defendant. This is a case which has been brought pursuant to Chapter 85B. The case was heard in Des Moines, Iowa on July 17, 1991. The record consists of the testimony of claimant. Additionally, the record consists of the testimonies of Sidney R. Myers, Russell E. Williams, Jon Husman, and Danny Oltmann. The record also consists of joint exhibits 1-10. issues The issues to be determined are: 1) whether claimant received an injury which arose out of and in the course of employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent disability benefits; and, 4) whether claimant is entitled to certain medical benefits pursuant to section 85.27. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 53 years old. He commenced his employment at the Men's Reformatory on July 17, 1972. Claimant was hired as a Carpenter I. He progressed to a Carpenter II. From 1972 to 1983, claimant engaged in the structural work of new buildings. His duties were varied. Approximately two years after he started working, claimant was trained and licensed to use a "Ramset Gun." The Ramset Gun is a tool which is used to anchor a nail Page 2 into stone or concrete. The nail will penetrate through two inches of concrete. The manufacturer of the tool describes the Ramset gun as: STANDARD VELOCITY PRINCIPLE The most powerful method of fastening, the Standard Velocity System provides unequalled holding power. Drive pins and threaded studs are driven directly into masonry or steel by the force from a special Ramset industrial powder load. A dependable, low maintenance method of fastening wood and metal to tough, thick materials--steel up to 1" thick and concrete of any compressive strength. (Exhibit 9, page 3) The operator must push the gun against the wall and release the fire pin. When the nail is released, there is a very loud noise. If the gun is shot in an enclosed space, a louder noise is made. Claimant described the sound as an echoing sound which was two times louder than when the gun was shot outside. In 1974 or 1975, claimant used the Ramset Gun on a daily basis at the Iowa Men's Reformatory. He was installing strips around the windows so that plastic could be placed across them. Claimant testified that for a one to two month period, claimant shot the Ramset Gun 100-200 times per day. Claimant's testimony revealed that he wore a band around his ears, stuffed his ears with cotton, but that his ears would ring for days after he used the Ramset Gun. Claimant also testified he used the Ramset Gun for projects other than the window one. Claimant testified he performed other work where the Ramset Gun was not used. Often he worked in the carpentry shop where several tools were operating and producing loud sounds. The tools were the radial arm saw, the planer and the diamond core drills. On November 16, 1984, claimant voluntarily transferred to Luster Heights which is a camp associated with the reformatory. Claimant became a correctional officer. His duties did not require claimant to work around loud noises. Claimant explained he first experienced hearing problems in 1988. He stated he could not discriminate sounds when his wife spoke. Nor could he hear the telephone ring. Claimant first had his ears tested on February 28, 1989, at the Prairie due Chien Memorial Hospital. In her report of March 1, 1989, Sandra H. Woodward, M.S. CCC-A, described claimant's test results. She wrote: Mr. Donald Rickles [sic] was seen February 28, 1989 at Prairie du Chien Memorial Hospital for an audiological evaluation. The results of that evaluation indicate the presence of a bilateral Page 3 high frequency sensor ineural hearing loss with only fair speech discrimination when evaluated in quiet. A trial period of amplification with binaural in-the-ear hearing aids is recommended. This type of hearing loss may be caused by prolonged exposure to excessive noise levels. High frequency hearing loss typically creates certain problems. First, the individual will experience difficulty sorting one voice out of a background of noise, and second, he will have difficulty hearing words clearly, particularly in a noisy environment. Given Mr. Rickles' [sic] description of his work environment and responsibilities, it is suspected that a significant hearing loss might be both a handicap for him, and a security risk. Therefore, use of hearing aids is strongly recommended. Please do not hesitate to contact me if I can provide further information. (Ex. 5, p. 3) As a result of his hearing tests, claimant was fitted with hearing aids. Claimant had his hearing tested again on December 18, 1990. Ms. Woodward's audiological report indicated: Pt concerned that hrng has worsened.- Has lost HAs. Test results are very similar to those obtained 2-28-89. Moderate to severe sensorineural loss above 1000 Hz with fair speech discrim bilat. Rec: Replace aids under warranty. (Ex. 2, p. 2) Claimant filed his original notice and petition with the Iowa Division of Industrial Services on August 24, 1990. At the time of the hearing, claimant was still employed at Luster Heights as a correctional officer. He testified he had used the Ramset Gun on two occasions between 1983 and 1989. conclusions of law Occupational hearing loss is defined in section 85B.4. Under the section, an occupational hearing loss is a permanent sensorineural loss of hearing in one or both ears in excess of 25 decibels which arose out of and in the course of the employment and was caused by prolonged exposure to excessive noise levels. An excessive noise level is sound capable of producing occupational hearing loss or sound exceeding the time and intensities listed in the table in section 85B.5 or both. See Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 1987). Page 4 The table in section 85B.5 then, is not the minimum standard defining an excessive noise level in section 85B.4(2). The table in section 85B.5 lists noise level times and intensities which, if met, will be presumptively excessive noise levels of which the employer must inform the employee. See Muscatine County, Supra. A claim for an occupational hearing loss may be brought pursuant to section 85B.8. The section provides that: A claim for occupational hearing loss due to excessive noise levels may be filed six months after separation from the employment in which the employee was exposed to excessive noise levels. The date of the injury shall be the date of occurrence of any one of the following events: 1. Transfer from excessive noise level employment by an employer. 2. Retirement. 3. Termination of the employer-employee relationship. The date of injury for a layoff which continues for a period longer than one year shall be six months after the date of the layoff. However, the date of the injury for any loss of hearing incurred prior to January 1, 1981 shall not be earlier than the occurrence of any one of the above events. Section 85B.8 provides that the date of injury in an occupational hearing loss claim is the date of occurrence of "any one" of either transfer from excessive noise level employment, retirement or termination. "Any one of the following events" has been interpreted by the industrial commissioner in a declaratory ruling. The phrase is interpreted to mean the first to occur of the events. See: In Re Declaratory Ruling of John Deere Dubuque Works of Deere & Company, III Iowa Industrial Commissioner Report 147. The supreme court has also held the same position in the case of John Deere Dubuque Works of Deere & Company v. Weyant, 442 N.W.2d 101 (Iowa 1989). In the arbitration case of Udell v. John Deere Dubuque Works of Deere & Company, Vol. 2, No. 1 Industrial Commissioner Decisions 407 at 409-410 (1985), Deputy Walleser wrote: Claimant alleges in his petition that his injury date was his retirement date, apparently September 1, 1982. The objective evidence does not support claimant's contention, however. Work histories for claimant indicate he has not consistently worked at noise levels exceeding 70 dba since becoming an industrial forklift operator on August 11, 1969. Prior to that date, he had had substantial noise exposure exceeding 86 dba. Thus, a 16 dba reduction in the intensity of claimant's work noise exposure occurred on and Page 5 after August 11, 1969. The times and intensities table of 85B.5 is not an exclusive listing of excessive noise levels. Prolonged exposure to excessive noise levels may result over time where the intensity of exposure is less but the duration greater. However, the tables delineate times and intensities of exposure which by law are excessive noise levels. They also provide guidance in considering whether a less intense or less prolonged exposure could reasonably result in an excessive noise level exposure. In this case, both the actual reduction in weighted noise exposure and the fact that the reduced weighted noise exposure was at least 20 dba below the 90 dba for an eight hour duration listed in the table supports the findings that claimant was transferred from excessive noise level employment on August 11, 1969. Claimant's occurrence date, if any, is August 11, 1969, a date prior to the January 1, 1981 effective date of chapter 85B. Claimant argues in his brief that the occurrence of any enumerated event should be sufficient to permit filing a claim for a loss allegedly occurring before January 1, 1981. Such is not the case, however. Section 4.5, Code of Iowa, provides that a statute is presumed to be prospective in its operation unless expressly made retrospective. The legislature did not expressly make chapter 85B retroactive. The Act as a whole must be construed in that light. Hence, the addition of the final sentence to section 85B.8 saves claims for occupational hearing loss incurred prior to January 1, 1981 if any of the enumerated events occurred at a time which would place the prospective claim within the applicable limitation period. Section 85B.14 makes section 85.26(1) and (3) applicable to chapter 85B. Therefore, a potential claim for occupational hearing loss benefits which could be filed on or after the January 1, 1981 effective date of the occupational hearing loss act without exceeding the limitation period of section 85.26(1) is a valid occupational hearing loss claim within the parameters of the Act. Section 85.26(1) permits commencement of an original contested case proceeding within two years of the occurrence of the injury. Claimant's date of occurrence of injury, if any, was August 11, 1969. Claimant commenced his claim on May 22, 1984. Clearly, the section 85.26(1) limitation period was exceeded. Under the foregoing analysis, claimant's potential claim is not among those within the parameters of the Act. Claimant's claim must fail. Claimant also argues in his brief that the discovery rule should save his claim for occupational hearing loss benefits. We shall first address that argument on its face. Page 6 The discovery rule delays the accrual of the cause of action until the injured person has in fact discovered his injury or by exercise of reasonable diligence should have discovered it. Chrischilles v. Griswold, 260 Iowa 453, 463, 150 N.W.2d 94, 100 (Iowa 1980). The limitation period under section 85.26 begins to run when the employee discovers or in the exercise of reasonable diligence should have discovered the nature, seriousness and probable compensable character of the injury for which benefits are claimed. Orr v. Lewis Central School District, 298 N.W.2d 256, 261 (Iowa 1980). In the context of the notice statute, section 85.23, the Iowa Supreme Court has explained its similar rule thusly: The reasonableness of the claimant's conduct is to be judged in the light of his own education and intelligence. He must know enough about the injury or disease to realize it is both serious and work-connected, but positive medical information is unnecessary if he has information from any source which puts him on notice of its probable compensability. Robinson v. Department of Transportation, 296 N.W.2d 809, 819 (Iowa 1980). Both standards are apparently derived from the following statement of the discovery rule in workers' compensation cases: "The time period for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease. 3A [sic] Larson, Workmen's Compensation 78.41 at 15-65 to 15-66 (1976)" as cited in Robinson at 812. When claimant's argument is taken at its face, the discovery rule does not save his alleged claim. Claimant was well aware of noise induced hearing loss for he had suffered such a loss during his military service and had received a service disability for that loss. Claimant also knew he was exposed to noise in his work. Claimant is a gentleman of at least average intelligence. He, therefore, could reasonably be expected to both recognize that he had a hearing loss and to inquire as to the loss' work-relatedness and possible compensability within a short time of experiencing the loss. There is no evidence in the record demonstrating claimant did either. Hence, on its face the discovery rule could save claimant's claim. Claimant's argument as to the discovery rule also fails for a more fundamental reason. Claimant would have the discovery rule create Page 7 commendable claims for persons who suffered a hearing loss beyond the Act's effective date, but who did not discover that loss until the effective date.... Claimant alleges on the face of his petition that he had sustained an injury in the form of a hearing loss on January 18, 1989. The basis for selecting this injury date is unclear to the undersigned. However, this deputy acknowledges that claimant's first hearing test did occur on February 7, 1989. As an affirmative defense, defendant maintains that claimant has not filed his claim in a timely fashion. Defendant argues in its brief the following: The Claimant was a Carpenter at Anamosa from July 16,1972 [sic] until he transferred to Luster Heights on November 16, 1984 to assume the duties of a correctional officer. Subsequently, he left the job at Anamosa to assume the duties of a quieter occupation at Luster Heights. Therefore the Claimant meets the first criteria of 85B.8 and the date of occurrence of his injury was the date of his transfer to Luster Heights - November 16, 1984. Claimant filed his petition on August 28, 1990. Therefore based upon 85B.14, the Claimant has clearly failed to file his petition within the two years allotted by the applicable statute of limitations. (Defendant's brief, page 5) Defendant also argues that claimant should have exercised reasonable diligence in recognizing the hearing loss before the statute of limitations had tolled. Defendant too maintains that the discovery rule does not apply in this situation. Defendant argues in its brief at pages 6-7 the following: The application of the discovery rule delays the accrual of the cause of action until the injured person has in fact discovered the injury or by exercise of reasonable diligence should have discovered it (emphasis added). Chrischilles v. Griswold, 260 Iowa 453, 463, 150 N.W.2d 94,100 (1967). John Deere Dubuque Works v. Myers, 410 N.W.2d 255 (Iowa 1987). The limitation period of 85B.14 begins to run when the employee discovers or in the exercise of reasonable diligence should have discovered the nature, the seriousness and the probable compensable character of the injury for which benefits are claimed (emphasis added). Orr v. Lewis Central School District, 298 N.W.2d 256, 261 (Iowa 1980). Page 8 The discovery rule, which may save claims which fall under Chapter 85B, does not save Claimant's petition in this instance.2 The Claimant is a high school graduate who appeared to be of average intelligence. He testified that he complained of excessive noise on several occasions to his supervisor during the time he was at Anamosa. Therefore he was clearly aware that his job duties between 1972 and 1984 encompassed activities which could be harmful to his hearing. Claimant reported symptoms of a hearing loss, allegedly related to occupational noise exposure to doctors in 1989. It is reasonable to assume that he should have also been aware of those symptoms in the years immediately following his transfer to Luster Heights away from the occupational noise which allegedly precipitates his hearing loss.3 ___________________________ 2 But Cf. John Deere Dubuque Works v. Myers, 410 N.W.2d 255 (Iowa 1987). (Discovery rule applies to hearing loss statutes.) In John Deere, Claimant suspected a loss of hearing about 4 months after he was laid off and separated from the excessive noise which is alleged to have caused his loss of hearing. He was sent to an otolaryngologist on March, 18 1982 [sic] who diagnosed him with a high frequency sensorineural hearing loss related to noise exposure at work. Subsequently he filed a petition with the Industrial Commissioner on March 7, 1984. Distinguishing the case at hand, Claimant does not discover a hearing loss until approximately 13 years after the incident he alleges was most responsible for his hearing loss and 4 years after he transfers to another job which removes him from the activities he asserts caused his hearing loss. In addition he does not file a petition until August 28, 1990 - almost 15 years after he used the Ramset Gun on a frequent basis. 3 See Vandermulen v. John Deere Dubuque Works of Deere & Company, 2 Industrial Comm'r 412,415 (1985). (If a person reported a hearing loss to a physician in 1983, it is reasonable to assume he was aware of the symptoms when the hearing loss occurred in July of 1979.) It is the determination of the undersigned that claimant's claim is barred by the statute of limitations. Using the statutory mandates of section 85B.8 and section 85.26, and using the rationale applied in Weyant, supra, there is only one date which can be used at the date of occurrence. It is the November 16, 1984 date. This date represents the date on which claimant transferred from the Men's Reformatory in Anamosa, a workplace where there had been at least action levels of noise, to Luster Heights, a place where there had been a much quieter work environment. Page 9 Claimant filed this action on August 24, 1990. More than two years had expired since claimant's transfer date to Luster Heights. Claimant's claim is barred by the statute of limitations. Even if the discovery rule is applied in this case, claimant's claim is untimely. Claimant's date of transfer is November 16, 1984. Claimant testified he first experienced problems with his hearing in 1988. His hearing was tested in 1989. Claimant appears to be average in intelligence. He has graduated from high school. He was in the armed forces. It would have been reasonable for claimant to have discovered a potential work related hearing loss prior to 1988, 1989, or the date of the petition, August 24, 1990. Therefore, it is the determination of the undersigned that claimant's claim is barred. The discovery rule does not render this claim timely filed. order THEREFORE, IT IS ORDERED: 1. Claimant shall take nothing from this proceeding. 2. The costs of this action are taxed to claimant. Signed and filed this ____ day of November, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Mark S. Pennington Attorney at Law 620 Fleming Bldg Des Moines IA 50309 Mr. Charles S. Lavorato Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 2208; 2402 Filed November 13, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ___________________________________________________________ : DONALD RICKELS, : : Claimant, : : vs. : : File No. 924674 IOWA STATE MEN'S REFORMATORY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ 2208; 2402 Claimant did not timely file his claim for benefits pursuant to a hearing loss claim under section 85B. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JANE E. BOESE, : : File No. 924677 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N DURANT FOUNDRY & MACHINE, : : Employer, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jane E. Boese, claimant, against Durant Foundry & Machine, employer (hereinafter referred to as Durant Foundry), an uninsured defendant, for workers' compensation benefits as a result of an alleged injury on September 29, 1989. On December 18, 1990, a hearing was held on claimant's petition and the mat ter was considered fully submitted 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. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits received into the evidence are listed in the prehearing report. It should be noted that although the undersigned excluded defense exhibits A & B from the evidence at hearing, a review of those documents which were received as an offer of proof indicates that their receipt into the evidence would not have changed the outcome of this decision. According to the prehearing report, the parties stipu lated that claimant's rate of weekly compensation, if bene fits are awarded, is $130.78 per week. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether an employer-employee relationship existed between claimant and Durant Foundry at the time of the alleged injury; II. Whether claimant received an injury arising out of and in the course of employment; III. The extent of claimant's entitlement to disabil ity benefits; and, Page 2 IV. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant places claimant's credibility at issue during cross-examination as to the occurrence and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. Claimant was employed by Durant Foundry for approxi mately 52 days prior to the work injury as a grinder. Claimant was given a large belt grinder which required the use of both of claimant's hands to grind surfaces of large and small parts for an entire work week working constantly eight hours per day, five days per week. The grinder was powered by an electric motor. Claimant testified that due to vibrations, the speed of the motor and the weight of the grinder, claimant had to tightly grip the grinder throughout the course of a day. Soon after beginning this job on July 5, 1989, claimant began to experience numbness and tingling in her left hand. Eventually, this numbness and tingling extended into the right hand. Defense witnesses testified that they observed claimant using wrist splints soon after she began working for them. Claimant denied that this occurred immediately. Claimant had no such problems before the work injury. This finding is based upon claimant's uncontroverted testimony. Claimant has not returned to Durant Foundry since leaving on October 3, 1989. On or about September 29, 1989, claimant received an injury to both of her arms which arose out of and in the course of her employment at Durant Foundry. The injury was diagnosed as a bilateral de Quervain's tenosynovitis and overuse syndrome. This injury extends to tissues beyond the hand and into the arm. Initially, claimant attempted to treat her wrist problems herself. Claimant continued work ing until September 29, 1989, at which time she sought pro fessional medical treatment. Claimant left work on October 3, 1989, under the orders of her physicians. Claimant's primary treating physician was Leo A. Kulick, M.D., an orthopedic surgeon. Claimant was off work until Dr. Kulick released claimant from his care on November 13, 1989. Claimant reached maximum healing at that time according to Dr. Kulick. The medical treatment received by claimant con sisted of wrist splints and surgery on the left wrist. The causal connection of claimant's arm condition to her Durant Foundry job is based upon the uncontroverted views of Dr. Kulick as set forth in the evidence. As a result of the work injury of September 29, 1989, claimant has suffered a five percent permanent partial impairment to the left arm. The right wrist problems resolved after claimant left work. Also, claimant is perma nently restricted from repetitive activity of her left hand Page 3 involving gripping or vibration. No physician has given an impairment rating but claimant testified that she has lost significant grip strength and endurance in her left hand. As a result of the work injury of September 29, 1989, claimant has incurred the expenses listed in exhibit 3. These expenses are reasonable. This finding is based upon the fact that claimant has paid these expenses and there is no contrary evidence offered by defense. conclusions of law I. The employment status of claimant was never really contested at hearing. II. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose 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 circumstances of the injury. See 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, 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 therein. In the case sub judice, the injury came on gradually over time and the date of injury is the approximate date when claimant left her employment due to injury. It is not necessary that claimant prove her disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from con tinuing to work. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unsched uled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the com pensation payable is limited to that set forth in the appro priate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the Page 4 industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case sub judice, it was found that claimant suf fered a five percent permanent loss of use of her arm. Based upon such a finding, claimant is entitled as a matter of law to 14.5 weeks of permanent partial disability bene fits under Iowa Code section 85.34(2)(m) which is five per cent of 250 weeks, the maximum allowable for an injury to the arm in that subsection. As claimant has established entitlement to permanent partial disability, claimant is also entitled to weekly ben efits for healing period under Iowa Code section 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 she was performing at the time of injury; or, until it is indicated that significant improve ment from the injury is not anticipated, whichever occurs first. It was found that claimant left work on October 3, 1989, never to return to Durant Foundry. However, it was also found that claimant reached maximum healing on November 13, 1989. Healing period benefits will be awarded accord ingly. IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is enti tled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendants to make such pay ments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, all requested medical expenses were found reasonable and causally connected to the injury. All will then be awarded. order 1. Defendant, Durant Foundry, shall pay to claimant fourteen point five (14.5) weeks of permanent partial dis ability benefits at the rate of one hundred thirty and 78/l00 dollars ($130.78) per week from November 14, 1989. 2. Defendant, Durant Foundry, shall pay to claimant healing period benefits from October 3, 1989 through November 13, 1989, at the rate of one hundred thirty and 78/l00 dollars ($130.78) per week. 3. Defendant, Durant Foundry, shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any the expenses paid by her. 4. Defendant, Durant Foundry, shall pay accrued weekly benefits in a lump sum. 5. Defendant, Durant Foundry, shall pay interest on Page 5 weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendant, Durant Foundry, shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reim bursement to claimant for any filing fee paid in this matter. 7. Defendant, Durant Foundry, shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Alan Hartsock Attorney at Law 4th Flr Rock Island Bldg P O Box 4298 Rock Island IL 61204 Mr. Lyle A. Chapman, Jr. Durant Foundry & Machine Company Durant IA 52747 5-1803 Filed April 18, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : JANE E. BOESE, : : File No. 924677 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N DURANT FOUNDRY & MACHINE, : : Employer, : Defendant. : ___________________________________________________________ 5-1803 Extent of disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICKY LEE HAYES, : : Claimant, : : vs. : : File No. 924795 BRUCE AND OTTO LORCH, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GRINNELL MUTUAL REINSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ricky Lee Hayes, claimant, against Bruce and Otto Lorch, employer, and Grinnell Mutual Reinsurance Company, insurance carrier, as defendants. Claimant sustained an injury on July 24, 1989, which arose out of and in the course of his employment. The record in this case consists of testimony from the claimant and Bruce Lorch; claimant's exhibits 1 through 6; and, defendants exhibits 1 through 21. The matter came on for hearing on April 16, 1992, at Storm Lake, Iowa. issues The parties submit the following issues for resolution: 1. Whether claimant's work-related knee injury, which he sustained on July 24, 1989, caused claimant to suffer a back condition; and, 2. The amount of permanent partial disability claimant has sustained to his right knee due to the work-related injury on July 24, 1989. Page 2 findings of fact The undersigned deputy, having reviewed all the evidence received, finds the following facts: Claimant, Ricky Lee Hayes, was born on March 14, 1963. At the time of the hearing, he was 29 years of age. Claimant graduated from Lyons Public High School in 1982. Since graduating from high school, claimant has held a number of jobs, including work as a lifeguard; lawn care provider; seed salesperson; assembly line worker at Iowa Beef Processors; truck driver; and, other manual labor and minimum wage paying jobs. In 1988, he began working for the defendant employer, Bruce and Otto Lorch, also known as Lorch Pork. He was hired as a breeding man, which required him to work outside caring for hogs from farrow to finish. He cared for approximately 700 sows. In July of 1989, claimant was working on a two person crew baling straw. He jumped off of the hayrack and as he landed heard a pop in his right knee. He notified his employer, and continued to work. That evening, claimant received treatment from James Clemens, M.D., who treated claimant with ice and Darvocet and referred claimant to J.P. Michael Donohue, M.D., an orthopedic specialist located in Storm Lake, Iowa (Defendants' Exhibit 7). Claimant visited Dr. Donohue on July 26, 1989. After an examination, it was determined that claimant had sustained a ligament strain and possible anterior cruciate ligament medial meniscus injury. Claimant was re-evaluated approximately one week later, and displayed continued swelling of the right knee and limited range of motion. He was scheduled to undergo an arthroscopic evaluation on August 11, 1989. During the procedure, Dr. Donohue confirmed that claimant had sustained a complete tear of the anterior cruciate ligament, and recommended reconstructive surgery. This was undertaken on August 30, 1989 (Def. Ex. 18). Post-operatively, claimant undertook an aggressive rehabilitation program. Dr. Donohue released claimant to return to restricted work activities on January 12, 1990. Claimant was not to perform any twisting or "cutting" activities with the right knee. He was not rehired by the defendant employer, and undertook a job search. Dr. Donohue predicted that claimant would have some permanent impairment based upon damage to the ligaments and to the medial femoral condyle, and that claimant would reach maximum medical improvement one year after the reconstructive surgery (Def. Ex. 18, p. 16). Claimant continued to receive follow-up care from Dr. Donohue, whose notes indicate that on April 2, 1990, claimant had a sudden increase in pain and swelling in the Page 3 right knee. Claimant denied any specific injury, and Dr. Donohue indicated claimant had sustained a breakdown of the adhesions in the right knee (Def. Ex. 18, p. 13). On April 13, 1990, it was recommended that claimant reinstitute monitored rehabilitation. Although claimant displayed improvement on follow-up visits to Dr. Donohue, on July 17, 1990, he reported an increase in pain and discomfort with the right knee. Dr. Donohue recommended continued strengthening exercises and avoidance of stressful activities of the knee, but no further treatment. He recommended that claimant obtain a second opinion, and claimant proceeded to see David Minard, M.D., in Omaha, Nebraska. Dr. Minard's notes indicate that on July 8, 1990, claimant was walking in his yard when his right knee gave out. He consulted Dr. Minard on July 17, 1990, who scheduled claimant for arthroscopic surgery (Def. Exs. 10 and 11). Claimant returned to Dr. Donohue on August 7, 1990, and reported a new problem, low back discomfort. A physical examination revealed tenderness over the lumbosacral joint, with limited range of motion on forward flexion and hyperextension. Straight leg raising exams were negative, and Dr. Donohue diagnosed a myofascial strain of the lumbar spine. Apparently, claimant asked Dr. Donohue whether the back problem was caused by limping a change of gait, but Dr. Donohue was unable to attribute the low back discomfort to the right knee problem due to the length of time between claimant's original knee surgery and the first complaint of low back problems (Defendants' Exhibit 18, pages 6-7). Dr. Donohue performed a final evaluation on August 15, 1990. An examination of the knee revealed some loss of range of motion of the right knee and stated that claimant had reached maximum medical improvement. Dr. Donohue stated that the persistent discomfort experienced by claimant was "most likely secondary to early degenerative changes secondary to the osteochondral injury." (Def. Ex. 18, pp. 3- 4) On September 21, 1990, Dr. Donohue was of the following opinion: As you know, the patient sustained an injury to his knee on July 24, 1989. Included in that injury were an osteochondral injury to the medial femoral condyle of his right knee as well as an acute rupture of his anterior cruciate ligament. The osteochondral fragments were removed arthroscopically and he subsequently underwent an anterior cruciate reconstruction. Unfortunately, the patient continues to be symptomatic from what I believe is early degenerative changes following his significant injury to the weight-bearing surface of the distal femur. He has also exhibited slight laxity in the anterior posterior plane consistent with slight stretching of his cruciate graft. However, it would be my opinion that the majority of his symptoms are secondary to Page 4 degenerative changes secondary to the cartilagenous [sic] injury. Based on the findings on the last examination, it would be my opinion that the patient has sustained a 17% percent impairment of the right lower extremity.... With respect to future treatment, as I have previously stated, I believe that at a minimum the patient may require surgical removal of the stitches along the medial knee which have been bothersome for him. The patient also has requested a second opinion and as a significant portion of his impairment from my observation appears to be secondary to degenerative changes at the site of his cartilage loss along the medial femoral condyle, it would be my opinion that a repeat arthroscopic examination to view this area as well as review the reconstruction site may be indicated at some point in the future. (Def. Ex. 12), pp. 1-2) In February of 1991, claimant sought treatment from Mark E. Wheeler, M.D., who took x-rays of claimant's right knee. The results showed a flattening of the medial femoral condyle. Dr. Wheeler felt claimant was symptomatic with popping in the right knee and felt that an arthroscopy was necessary. He stressed that he felt claimant was experiencing significant traumatic arthritis in the knee, and recommended claimant undergo vocational rehabilitation (Def. Ex. 14). Claimant underwent surgery in April of 1991, and progress notes from Dr. Wheeler indicate that claimant continued to complain of pain and aching in the right knee. His progress for the next several months remained unchanged, and it was recommended that claimant be retrained in sedentary type of work. Examination of the right knee revealed full range of motion with good ligamentous stability. Examination of his back revealed no areas of tenderness. Neurological examinations and straight leg raising tests were negative (Def. Ex. 17, p. 3). Eventually, claimant underwent arthroscopic surgery in the left knee due to two or three "relatively large loose bodies." Claimant also underwent x-rays, a CT scan and a myelogram of the low back and the results of these tests showed that claimant had degenerative disc disease at the L2-3 levels. A back rehabilitation program was recommended (Def. Ex. 17, pp. 1-2). Page 5 analysis and conclusions of law The first issue to be addressed is whether claimant sustained an injury to his back, or an aggravation of a preexisting condition of his back, on July 24, 1989. Defendants admit that on July 24, 1989, claimant sustained an injury to his right knee when he jumped off of a hayrack while working for Bruce and Otto Lorch. Approximately one and on-half years later, claimant began experiencing back problems. He believes these problems are directly related to the right knee problems, and asserts that due to a limp or change in his gait to compensate for the right knee injury, he now suffers from back problems. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 24, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 24, 1989, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, Page 6 compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Medical documentation reveals that claimant's first complaints of back pain came in August of 1990. Dr. Donohue examined claimant's back, and based on his findings diagnosed myofascial strain of the lumbar spine, etiology of which was unknown. Most notably, Dr. Donohue specifically stated that he was unable to perform the opinion that claimant's back pain or strain was caused by the original right knee injury (Claimant's Exhibit 5, pp. 23-24). And, Dr. Donohue was unable to state that claimant's limp and change of gait aggravated his preexisting back condition (Cl. Ex. 5, p. 30). Additionally, Dr. Donohue was unaware of claimant's visits to a chiropractor for treatment of a back problem due to a softball game incident (Cl. Ex. 5, P. 24; Def. Ex. 13). The undersigned finds no evidence which persuades her by a preponderance of the evidence that claimant's back problem is causally connected to the right knee injury. The final issue to be addressed is the extent of claimant's impairment to the right leg. Although claimant argues that he is entitled to a substantial award to compensate for an industrial disability, claimant's injury is to a scheduled member. He is compensated pursuant to Iowa Code section 85.34(2)(o). Claimant has been given two impairment ratings. Dr. Donohue assigned a 17 percent impairment and a 13 percent impairment based on various examinations (Def. Ex. 12; Dev. Ex. 18, p. 2). However, Dr. Donohue's calculations to arrive at the two different ratings remain unchanged. Each examination revealed that claimant's impairment is based on 2 percent loss of flexion; 10 percent arthritic changes; Page 7 and, 5 percent residual laxity. The undersigned finds that claimant sustained a 17 percent permanent partial disability due to his work-related accident. He is entitled to 37.4 weeks of benefits. order THEREFORE, it is ordered: That defendants shall pay claimant permanent partial disability benefits for thirty-seven point four (37.4) weeks at the rate of two hundred eighty and 89/100 dollars ($280.89), beginning September 21, 1990. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall be given credit for benefits previously paid. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Joseph L Fitzgibbons Attorney at Law 108 n Seventh St P O Box 496 Estherville IA 51334 Page 8 Mr Charles T Paterson Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 5-1803; 5-1803.1 Filed May 26, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : RICKY LEE HAYES, : : Claimant, : : vs. : : File No. 924795 BRUCE AND OTTO LORCH, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GRINNELL MUTUAL REINSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803; 5-1803.1 Claimant sustained a work injury to his right knee. Almost two years later, claimant developed back problems which he related to the work injury. No medical evidence was submitted to establish the necessary causal connection between claimant's right knee injury and his back condition. Claimant awarded benefits pursuant to the schedule; he was denied benefits for the back injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARILYN SHAFFER, : : Claimant, : File No. 925034 : vs. : : A R B I T R A T I O N FEDERAL EXPRESS, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ Statement of the case This is a proceeding in arbitration brought by Marilyn Shaffer as a result of injuries to her back which occurred on June 23, 1989. Defendant admitted compensability for the injury, paid weekly benefits and paid medical expenses. The case was heard and fully submitted at Des Moines, Iowa, on June 28, 1991. The record in the proceeding consists of joint exhibits 1 through 9 and 11, testimony from claimant, Kent Jayne, Roger See and Judy Steenhoek. issue The sole issue presented for determination is the extent of claimant's entitlement to permanent partial disability benefits under Iowa Code section 85.34(2)(u). findings of fact Having considered all the evidence received the following findings of fact are made: Claimant, Marilyn Shaffer, began work for employer on March 12, 1984. While performing work for employer on June 23, 1989, she injured her low back when she bent over to pick up some packages and felt a sharp pain. Claimant underwent surgery for an L5-S1 disc herniation and was discharged to return to work with a 10-pound work restriction. Employer offered claimant a temporary position in December 1989 at $7.99 per hour as compared to her wage of $10.40 per hour at the time of the injury. Employer later retracted its offer of work and placed claimant on a lay off due to her work injury. Employer failed to offer vocational rehabilitation or further light duty after the lay off. Claimant sought further employment and eventually became employed with a medical supply sales company starting January 14, 1991. Her duties consist of answering telephones, assisting customers and entering orders onto a CRT. Claimant, at the time of hearing, is still so employed Page 2 at an hourly wage of $7.50. Claimant testified that she is actually salaried at a rate of $14,400 per year and works 40 hours per week. The sole issue presented concerns the extent of claimant's entitlement to industrial disability. Factors to be considered when assessing industrial disability include claimant's age, education, experience, permanent impairment, work restrictions, wage loss and employer's offer of work. At the time of injury, claimant was age 35 and a high school graduate. She has no post-high school training and employer offered none through vocational rehabilitation subsequent to the injury. Claimant's work experience consists primarily of factory production work and heavy labor work. Claimant is now precluded from performing most of the prior work for which she has experience due to the 10-pound lifting restriction. Claimant's permanent impairment ratings were 10 percent, 17 percent and 35 percent. William R. Boulden, M.D., rated the injury at 10 percent and found the L5-S1 disc to be work related. He further stated that the L4-5 disc was not work related and actually preexisted the June 23, 1989, injury (exhibit 19, page 12). Dr. Boulden's opinion with respect to the L4-5 disc is found to be correct in that claimant had experienced prior bouts with back pain. However, prior to the injury, claimant was never permanently restricted from work due to the back pain. Therefore, apportionment is not appropriate. Thomas Bower, L.P.T's 17 percent rating and Rodney Johnson, M.D.'s 35 percent rating are not totally disregarded. They are simply given less weight as they appear to base their ratings on preexisting conditions and upon more subjective complaints. Claimant's work restriction is generally described as no lifting over 10 pounds. This lifting restriction prevents claimant from performing most of the manual labor jobs she had with employer. Her prior jobs required lifting of up to 75 pounds. The lifting restriction excludes claimant from a significant segment of the job market for which she has training and experience. Current earnings is also evidence of industrial disability. If claimant had not been injured and had remained with employer at the same job, she would be earning over $11 per hour. After the injury, employer offered light duty work at the rate of $7.99 per hour until her lay off. Claimant now earns the equivalent of $7.50 per hour with a reduction in fringe benefits. Claimant has sustained a significant loss of actual earnings based upon her wage history. Page 3 Employer conduct with respect to the offer of work after an injury is also to be considered. Employer did offer work after the injury for a short period of time. However, employer then imposed a lay off upon claimant and failed to make any effort to locate alternate work which fit her work restriction. Employer brought forth testimony that claimant could bid into other jobs within the company. However, no such jobs were available in the Des Moines area nor does the evidence support a finding that suitable work was available in Iowa. It is found that employer made no effort, after the lay off, to locate alternate work either inside the company or otherwise. Based upon a review of the entire record, it is found that as a result of the June 23, 1989, injury, claimant has sustained a significant loss of access to the job market for which she has training and experience. It is also found that claimant has sustained a very significant loss of actual earnings. It is also found that employer failed to make a good faith effort to re-employ or offer vocational rehabilitation. Having considered all the material factors it is found that claimant sustained 55 percent industrial disability as a result of the June 23, 1989, injury to her low back. conclusions of law Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss Page 4 of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). A defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Upon considering all the material factors, it is found that the evidence in this case supports an award of 55 percent permanent partial disability which entitles the claimant to recover 275 weeks of benefits under Iowa Code section 85.34(2)(u). order IT IS THEREFORE, ORDERED: Defendant is to pay to claimant two hundred seventy-five (275) weeks of permanent partial disability at the rate of two hundred eighty-four and 30/100 dollars ($284.30) per week commencing February 6, 1990. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. 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 defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1991. Page 5 ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jim Lawyer Attorney at Law 1200 35th St. STE 500 West Des Moines, Iowa 50265 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave STE 111 Des Moines, Iowa 50312 Page 1 51803 Filed July 2, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : MARILYN SHAFFER, : : Claimant, : File No. 925034 : vs. : : A R B I T R A T I O N FEDERAL EXPRESS, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51803 Claimant, age 35, with L5-S1 surgery, a 10 percent to 35 percent impairment, 10-pound lifting restrictions, high school education, heavy labor work experience, no offer to re-employ by employer and no vocational rehabilitation found 55 percent industrially disabled. Claimant earned $10.40 per hour at the time of injury and now earns $7.50 per hour. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHERRI K. MOREHOUSE, Claimant, vs. File No. 925056 BLUE STAR FOODS, A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on October 21, 1993, at Council Bluffs, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury that occurred on July 20, 1989. The record in the proceedings consist of the testimony of the claimant; claimant's daughter, Jennifer Morehouse; Susan Logan; joint exhibits 1 through 17; and, Second Injury Fund's exhibits A through C. ISSUES The issues for resolution are: 1. Whether an injury arose out of and in the course of claimant's employment on July 20, 1989, as to claimant's right leg; 2. Whether there is a causal connection as to claimant's right leg injury and the alleged July 20, 1989 injury; 3. Whether there is a simultaneous bilateral injury to claimant's right and left legs on July 20, 1989; and, 4. Whether claimant is entitled to Second Injury Fund benefits. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified in person and also through a deposition taken on September 9, 1992, represented by claimant's exhibit 17. The Second Injury Fund moved to strike or prevent claimant from testifying as to certain evidence concerning her schooling for a nursing home degree and her job search. The Second Injury Fund had a standing objection concerning such testimony. The ruling on said objection was reserved until the time of this decision. The Second Injury Fund's motions and objections are overruled. Claimant is a 35-year-old high school graduate who received an associate degree in professional studies and was able to transfer some courses to Metro College in which she was taking a nursing home administration program she began in September 1990, full time, and expected to graduate in the spring of 1993. She was not working while going to school full time. She said she was an "A" student while in school. Claimant indicated she could not MOREHOUSE V. BLUE STAR FOODS PAGE 2 complete her nursing home administration program and at the time of her hearing was no longer in the program nor was she going to school. She said she needed six months at 40 hours per week practice in a nursing home to complete her degree of programs and contends she was unable to do this practice aspects because of her condition. She contends her knees would not allow her to do it. She contends no one explained the physical demands of the nursing home administrator. Claimant indicated that she first knew of these conditions about one and oneéhalf years after she began the course work when they started setting out certain conditions of practicing. Claimant began working for defendant employer on March 19, 1984, and said she had no trouble with her left or right knee at that time. Claimant described the nature of her work with defendant employer which was as a general laborer on the line. She stood doing her job, weighed meats, etc. The floor she stood on was concrete. Claimant testified she injured her left knee on July 18, 1985, when she fell over a cement block. She had arthroscopy surgery on her left knee and the doctor gave her a permanent partial impairment of 5 percent and claimant was paid workers' compensation by defendant employer because of that injury. Claimant said she continued to have left knee problems between the surgery and up to her July 20, 1989 alleged injury. Claimant said she had no right knee problems from 1985 to July 1989. Claimant described how she injured herself on July 20, 1989. She said she was moving an ice tank full of sauce while she was operating the sauce line and in the process of turning a corner with the ice tank, she slipped on something and lost control of the ice tank and wound up being stuck between the ice tank and a pallet full of shrink wrap. At the hearing, she indicated that her left knee hurt. She said she had difficulty walking and favored the left leg a lot, thereby, putting weight on the right side. She said her knee became worse and in September 1989, the doctor did an arthroscopy on the left knee. She said that after this surgery, most of her weight then was placed on her right leg and she told the doctor the right leg was getting worse. On October 19, 1989, claimant said she had bilateral knee surgery. She said she had a slow recovery and couldn't squat. She returned to light duty in November 1989 and indicated her knees were still sore and she was afraid of the plant environment as the floor were often wet and slippery. Claimant contends that the company did not sufficiently accommodate her or that her job was such that she still had to get up and down. She said she made an effort but finally quit on April 16, 1990. At the time she quit, claimant indicated in her deposition that she was working part-time for BQC Tapes and that she did that job full-time after quitting defendant employer and was making $5 per hour putting together CDs. She then left that employment to go to school. She acknowledged that she probably would still be working there if they still had a job available if she hadn't quit to go to school. (Joint Exhibit 17, page 5) In claimant's deposition it appeared that the employer was attempting to work her back into what she was doing before or at least attempting to accommodate her. She was on the second shift at that time and the plant attempted to accommodate her and it appeared she wanted to be on the first shift which would be the day shift and which was a shift she was originally on at the time of her alleged injury. Claimant then indicated that she was tired of the hassle and had been there six years and had had enough and that is when she quit. (Jt. Ex. 17, p. 14) MOREHOUSE V. BLUE STAR FOODS PAGE 3 Claimant related the current problem she is having which includes not being able to stand for a long period of time or sitting for over an hour or so and she can now walk only three or four blocks. Claimant was then asked as far as what jobs she looked for and as indicated earlier there was an objection to this line of testimony by the Second Injury Fund because as per Second Injury Fund's exhibit A, interrogatory No. 28, they asked for claimant's job seeking and at that time, apparently around January 1992, when she answered her interrogatories, she indicated she had worked for defendant employer until May 1990 and quit to start school. The Second Injury Fund's objection was basically that there was no updating of her interrogatories to show or give the Second Injury Fund any indication of where she attempted to become employed or what jobs she sought. The Fund understood she hadn't been seeking any jobs. They felt at a disadvantage and moved to strike any testimony as to any job seeking evidence. As indicated earlier, the motion was overruled. The undersigned might note that he was not impressed with the alleged job search or any effort claimant made. Claimant related one of the reasons she went back to school was that she understood that a graduate from the nursing home and administration program could earn $20,000 to $25,000 per year and with experience could earn up to $40,000, and this type of job would get her out of the production industry. Jennifer Morehouse, claimant's 17-year-old daughter, testified she has lived with her mother since July 20, 1989, and that she now has to help her out more than before. She indicated she scrubs the floors, does all the heavy work and cleaning, washes the dishes, and takes care of her mother when she is not feeling well. She indicated that before July 20, 1989, claimant could go up and down the stairs and did not need a brace to support her knee. She said that she and her mother used to ride bicycles, go for long walks, went bowling and dancing at church. She said she doesn't dance anymore or cannot do what she used to do. Susan Logan testified that she has known claimant for 13 years and is her good friend. She is 33 years of age. She indicated she visits claimant at her home and has noticed changes. She said that she and claimant used to go dancing in 1980 and 1982 and lived together in 1984 when claimant had her first injury. She said she didn't live with claimant at the time of her July 20, 1989 injury but indicated claimant's left knee would go out and she and claimant's daughter would have to catch claimant. She said she used to bowl with claimant but they don't do it anymore nor do they walk or ride bicycles. Although there is testimony and evidence that would indicate that pursuant to the July 20, 1989 alleged injury that there may have been injury to the knees, but the greater and overwhelming evidence as reflected in claimant's exhibits 1 through 5 show that claimant's first complaints were really to her left knee and that was where the treatment was taking place. This conclusion seems to be summed up in the October 18, 1990 letter of Louis F. Tribulato, M.D (Jt. Ex. 1(a)), in which he indicated that claimant did not mention pain in her right knee when he first saw her and that it was only after arthroscopic surgery on her left knee that she started complaining of pain in the right knee and this at the time was attributed to favoring the left knee and putting additional weight and stress on the right knee. The record shows claimant's first surgery on her left knee was September 6, 1990. Although there were some underlying MOREHOUSE V.BLUE STAR FOODS PAGE 4 problems of claimant's right knee that were ultimately determined, the doctor opined that this condition was aggravated and was made symptomatic as a result of claimant favoring her left knee and therefore the right knee symptoms were due to problems with the left knee which required her to favor her left knee and put more weight on her right knee. Although he indicated the basic pathology was not caused by the work-related injury, the basic pathology that she had in her right knee was apparently symptomatic prior to the injury to the left knee and was made symptomatic as a result of favoring her left knee. He therefore opined that the impairment to claimant's right knee is related to the left. The report of Jack A. McCarthy, M.D., (Jt. Ex. 2(a)) supports that claimant's initial injury was to her left knee. There is no mention of her right knee on this August 17, 1989 report. Joint exhibit 4(b) is the operative report of claimant's September 6, 1989 arthroscopy of her left knee. Again, there is no indication of any problems with her right knee at that time. Joint exhibit 5(a) is the October 19, 1989 hospital record in which claimant was admitted and prepared to have a bilateral retinacular release. Joint exhibit 7(a) is the April 1, 1986 report of R. Michael Gross, M.D., in which he opined that claimant had a 5 percent permanent disability of the left knee as a result of her partial medial meniscectomy that she had on August 6, 1985. Joint exhibit 7(e)(2) is the August 9, 1989 notes of Dr. McCarthy in which the history again given by the claimant reveals her contention that she injured her left knee again. Joint exhibit 10 is an exhibit that includes the interview and data concerning claimant receiving vocational rehabilitation benefits and various grants and reflects within said document claimant's authorization and help in going to school to get her professional studies degree and nursing home administration degree from Metropolitan Community College. On page 5 of said exhibit under the date of January 27, 1992, it indicates that claimant had a 3.6 grade average and that she was taking several classes at the present time and that the combination of classes would allow her to get the two degrees. It further indicated that claimant was not able to get a practicum that semester and therefore would be graduating a year later than anticipated as a practicum is only offered in the winter term. Page 6 of said report of the date of July 2, 1992 indicates claimant planned to graduate in May of 1993 and has an overall grade point average of 3.5. The undersigned does not know why joint exhibit 12 was submitted as an exhibit. It has no bearing on this case and does not help decide any dispute. The undersigned notes that the Second Injury Fund's exhibits B and C are identical to joint exhibits 15 and 16, respectively. The undersigned does not know why there is duplication particularly since at the beginning of the hearing he emphasized the fact he didn't want there to be any duplication. Joint exhibit 16 or Second Injury Fund's exhibit C is a document that seems to indicate that claimant received a full duty release from work injury as of July 12, 1990. This document is a self serving document and the undersigned sees no such medical release in the file. The July 12, 1990 date is the date MOREHOUSE V. BLUE STAR FOODS PAGE 5 claimant was terminated officially from her employment with defendant employer because of her voluntarily leaving work in April and not giving any indication she wanted to continue working. The undersigned believes that the most recent status of claimant's restrictions or conditions as to what she can do are reflected in the April 19, 1990 report of Dr. Tribulato. (Jt. Ex. 1(c)(3)) in which the doctor indicated that he thought claimant should definitely avoid any work which required squatting or kneeling and no work which requires running, jumping or twisting of the knees. She should also avoid hard and damp cements since this tends to aggravate symptoms claimant has. It would appear from the record that the defendant employer did not have work for claimant that would prevent claimant from violating any of those conditions. If defendant did, it doesn't seem like defendant employer made a very good effort to comply. Likewise, it seems like claimant made no follow-up effort although she was interested in trying to work for defendant in some capacity as reflected in her November 22, 1989 letter. (Jt. exhibit 11) Claimant did return to work and worked for defendant employer until she quit in April 1990. There is nothing in the record showing any follow-up by the claimant after April 16, 1990, but the record shows claimant was eventually interested in going to school and was working for a tape company voluntarily for $5 versus the $7.10 she was earning in July of 1989. The parties are arguing whether an injury to claimant's right leg arose out of and in the course of her employment on July 20, 1989. It appears from the evidence that the undersigned has several choices. Either that there was no injury to claimant's right leg or that a separate injury occurred to claimant's right leg on a date different than July 20, 1989, or that there was a simultaneous bilateral injury to claimant's right and left leg on July 20, 1989, or there was an injury that was a sequela of claimant's July 20, 1989 work injury. The undersigned finds that the much greater weight of evidence shows that claimant did not incur a simultaneous bilateral injury to her lower extremities on July 20, 1989. Claimant contends that she suffered injuries to both knees on that date. If that is a fact, then the histories are devoid of any evidence of that for the most part and that the first indication of problems of the right knee was around October 1989 at which time claimant had a bilateral release on her right and left knee. Claimant is taking an alternative position which the undersigned believes is in fact the situation and that is that claimant's right leg problems are a sequela of her left knee work injury that occurred on July 20, 1989. The greater weight of medical evidence shows that when claimant began having problems with her left leg pursuant to her July 20, 1989 work injury, she was favoring that leg and it caused additional weight bearing on claimant's right leg. This is supported by Dr. Tribulato. It is also very understandable on how these things occur. Claimant is a rather heavy weight individual. The evidence shows that claimant was having no trouble of any consequence or nature with her right leg prior to July 20, 1989, and although she might have had an underlying latant condition that can be and was in fact aggravated, the undersigned finds that any aggravation of any underlying condition that existed prior to July 20, 1989 was materially aggravated, lighted up and heightened by her July 20, 1989 work injury. MOREHOUSE V. BLUE STAR FOODS PAGE 6 It is undisputed that claimant had a 5 percent permanent impairment to her left leg prior to July 20, 1989, and that permanency existed to that leg on that date. The evidence shows that claimant has a 15 percent permanent impairment to her left leg and to her right leg, 5 percent of which impairment to her left leg preexisted from a prior injury in 1985. The undersigned therefore finds that claimant's 15 percent impairment to her right leg and the 10 percent of the impairment to her left leg and the surgeries claimant had on the left leg in September 1989 and the bilateral release on October 19, 1989 were causally connected to claimant's July 20, 1989 work injury. The undersigned therefore finds that the defendant employer is liable to the claimant for 33 weeks of permanent partial disability benefits for the 15 percent permanent impairment to claimant's right leg and 22 weeks for the 10 percent permanent impairment caused to claimant's left leg by the July 20, 1989 injury, amounting to 22 weeks, the total amount being 55 weeks for which defendant employer is liable to the claimant at the stipulated rate of $168.69. The Second Injury Fund takes the position that there was a simultaneous bilateral injury and that therefore would leave them free of any liability. Although as mentioned above, the undersigned found there wasn't a bilateral simultaneous injury to the left and right leg, the mere fact that there is a bilateral injury in addition to a prior qualifying first injury does not under the law of this agency free the Second Injury Fund from any liability. The undersigned is only mentioning this because in the Second Injury Fund's brief it seemed to indicate there is no chance of finding any liability of any kind on the Second Injury Fund if you have a first injury to the left leg and then a subsequent bilateral simultaneously injury to the left and right legs. The undersigned must now determine as to whether the Second Injury Fund has any liability. Since claimant does have loss of 5 percent permanent impairment of her left leg as a result of her first injury in 1985, and has incurred a second injury to her right leg as a result of a July 20, 1989 injury that has resulted in a 15 percent permanent impairment, and since both of the permanent disabilities as to the initial injury and the second injury exists as of the date of the hearing, the Second Injury Fund has some liability. The claimant voluntarily quit work for defendant employer and it appears she did this mainly in order to seek through further education a degree in nursing home administration and a degree in professional studies. Claimant was a good student and she pursued her education through the help of vocational rehabilitation and certain grants and other subsidies and welfare that helped her live during these period along with having received some workers' compensation benefits. Claimant anticipated to substantially and economically enhance herself and had dreams of starting off with $25,000 to $30,000 in income and reaching ultimately with experience $40,000 to $45,000 in income versus $7.10 which is approximately what she was earning at the time she left defendant employer's employment and the $5 she was earning when working for a tape company prior to beginning school. Somewhere along the line claimant's desire to complete her nursing home education program was aborted because claimant could not complete a practicum. The undersigned is not sure from the evidence as to whether it is because the program couldn't be offered or claimant contends her injury prevents her from doing the practicum or applying for it. It seems unbelievable that at the stage claimant began school and was taking the courses to attempt to complete this program which she anticipated completing no later than the spring of 1993 and actually had anticipated MOREHOUSE V. BLUE STAR FOODS PAGE 7 completing sooner, she did not know the conditions or requirements for the program. Claimant knew her physical capacities by that time or, at least, her contentions and it seems that proper inquiries could have been and should have been made by her plus it seems that the vocational rehabilitation people or whoever else may have aided her in getting all of the money and grants for this education should have had the program sufficiently outlined and should have known if claimant could complete it or not. The evidence is insufficient as far as the undersigned is concerned as to know the total picture concerning this. It is obvious the defendants, particularly Second Injury Fund, did not know that claimant wasn't going to be able to complete her nursing home administration program through the Metro Community College and seemed surprised at the hearing. Claimant then testified that she did try to find employment or jobs and sent out some resumes. This, again, surprised the Second Injury Fund as they thought claimant was still getting her education. It was this testimony in these areas that caused the Second Injury Fund to raise their objections which were overruled. The undersigned will mention again that he was not impressed with claimant's testimony as to either looking for jobs or her contention that she send out resumes. There is no clear evidence to whom she sent them or what type of job she was looking for. The undersigned might therefore add that even though he overruled the Second Injury Fund's objections to testimony in the areas of claimant's education and stopping the same and claimed she made an attempt to look for jobs, the undersigned has given no weight to such evidence or testimony of claimant, therefore, resulting in no detriment to the Second Injury Fund. The greater weight of evidence does show that claimant has been affected by her first and second injury and that she is unable to return to the work for which she was formerly performing for defendant employer at the time of her injury and also at the time that she quit work in April of 1990. The undersigned believes that the defendant employer could have accommodated and might still be able to accommodate the claimant but claimant then took the choice of getting her education. That was her voluntary choice. Claimant then worked for awhile at $5 per hour for a tape company before beginning school full time. The evidence would seem to indicate that claimant with her present situation may still find work in the range of $5 to $8 per hour. Although education is never wasted, it appears that the education claimant had to be a nursing home administrator is of no value as to obtaining such position even though it may have given her some insights as to something else. The undersigned finds that claimant does have a loss of income as a result of her July 20, 1989 injury and the sequela to said injury. The undersigned further finds that claimant is able to do some work and is not totally disabled as she contends. The undersigned feels that claimant needs to be more motivated and that once this litigation ends, she may have more incentive to try to find a job. Claimant must realize that she does have some permanent impairment so she will have aches and pains and that is why she is getting compensation for her impairments and any second injury benefits that may be allowed herein. Claimant must go on with her life and be more motivated. Claimant is young and has a good intellectual capacity as she was getting as high as a 3.6 average at the Metro Community College being a full-time student. Taking into consideration claimant's injuries; her present condition; her work experience; her intellectual abilities; her wages prior to injury and after injury; the location and severity of her injury; her age; any healing period which was in dispute; her motivation; and, functional impairment to her left and right lower extremities, the undersigned finds that claimant has MOREHOUSE V. BLUE STAR FOODS PAGE 8 currently a 35 percent industrial disability which in and as itself would amount to 175 weeks. Deducting from that amount 25 weeks due to claimant's 5 percent permanent impairment to her left leg from the first injury in 1985 and 55 weeks which is the defendant employer's liability as a result of the July 20, 1989 injury to claimant's left leg and the sequela to said injury occurring to claimant's right leg, the Second Injury Fund is liable to the claimant for 95 weeks of permanent partial disability benefits at the rate of $168.69 per week. The parties stipulated that any disability benefits would begin April 6, 1990. The defendant employer's liability for 55 weeks of permanent disability benefits would end April 26, 1991, and the Second Injury Fund then would begin paying their 95 weeks on April 27, 1991. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that she received an injury on July 20, 1989, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 20, 1989, is causally related to the disability on which ?she now bases?her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. 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). 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. Before the Second Injury Fund is triggered three requirements must be met. First, the employee must have lost or lost the use of a hand, foot, leg or eye. Second, the employee must sustain MOREHOUSE V. BLUE STAR FOODS PAGE 9 another loss or loss of use of another member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and second injury. See Allen v. The Second Injury Fund, State of Iowa, Thirty-Fourth Biennial Report, Iowa Industrial Commissioner 15 (1980); Ross v. Service Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa Indus. Comm'r 273 (1979). The Fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second Injury Fund v. John Deere Component Works, Iowa Supreme Court Case No. 88-399, filed February 22, 1989. It is further concluded that: Claimant incurred an injury that arose out of and in the course of her employment to her left leg causing claimant to have a 10 percent permanent impairment in addition to a 5 percent permanent impairment claimant previously had resulting from a 1985 injury, which impairment was still existing on the date of claimant's July 20, 1989 work injury. Claimant incurred an injury to her right leg as a sequela to and as caused by the July 20, 1989 work injury causing claimant to have a 15 percent permanent impairment to her right leg. Claimant did not incur a simultaneous bilateral lower extremity injury on July 20, 1989. Claimant incurred a surgery in September 1989 to her left leg and a bilateral release to claimant's left and right leg in October of 1989, all caused by claimant's July 20, 1989 work injury. Although claimant may have had an underlying latent potential condition in her right knee, claimant had no prior problems affecting her prior to July 20, 1989, and that the July 20, 1989 work injury and sequela to the same affecting claimant's right leg caused claimant's preexisting right leg condition to be materially and substantially aggravated, heightened and lighted up. Defendant employer is liable to claimant for 55 weeks of permanent partial disability benefits as a result of claimant's July 20, 1989 work injury and sequela to said injury. The Second Injury Fund is responsible to pay claimant 95 weeks of permanent partial disability benefits because of claimant having a 35 percent industrial disability caused by the July 20, 1989 work injury and the first injury of July 1985, and that said sum is the net after deducting claimant's prior first injury impairment and defendant employer's obligation. ORDER THEREFORE, it is ordered: Defendant employer shall pay unto claimant fiftyéfive (55) weeks of permanent partial disability benefits at the rate of one hundred sixtyéeight and 69/100 dollars ($168.69) beginning April 6, 1990, and shall be given credit for twentyétwo (22) weeks of permanent partial disability previously paid. Defendant Second Injury Fund shall pay unto claimant ninetyéfive (95) weeks of permanent partial disability benefits. Said MOREHOUSE V. BLUE STAR FOODS PAGE 10 benefits shall begin April 27, 1991, which is after defendant employer has paid its fiftyéfive (55) weeks. Defendant employer shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendant employer shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Interest accrues on the benefits the Second Injury Fund pays commencing the date 1984). In this case it was fairly debatable whether the injury caused any impairment and if so how much. Dr. Boulden and Physical Therapist Bower questioned whether claimant was permanently disabled by finding that his pain complaints were not consistent with normal medical knowledge and experience and that claimant had not exhibited a reasonable effort to rehabilitate himself. Dr. McGuire was very critical of claimant on various points and concluded that he had no disability from this injury. Dolan v. Aid Insurance Company, 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar Meyer Foods Corp., file number 724378 (1989); Collins v. Hawkeye Moving & Storage, file number 873651 (Appealed and settled). Likewise, even though claimant denied he was having any problems with his low back on account of the two automobile accidents, defense counsel showed that this testimony was inconsistent with prior testimony of claimant (Tran. pp. 60-65). Claimant's counsel admitted there were inconsistencies in his testimony (Tran. p. 65). CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made. That claimant sustained the burden of proof by a preponderance of the evidence that the injury of September 12, 1989 was the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant has sustained the burden of proof by a preponderance of the evidence that he sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant sustained the burden of proof by preponderance of the evidence that his healing period ended on May 31, 1991 and that his permanent partial disability benefits should commence on June 1, 1991. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). That claimant failed to sustain the burden of proof by a preponderance of the evidence that defendants delayed and failed to commence permanent partial disability benefits without reasonable or probable cause or excuse. Iowa Code section 86.13. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of one hundred eighty-eight and 61/100 dollars ($188.61) per week in MOREHOUSE V. BLUE STAR FOODS PAGE 11 the total amount of nine thousand four hundred and thirty and 05/100 dollars ($9,430.05) commencing on June 1, 1991. That the previous award of the previous deputy of healing period benefits for the period from January 4, 1990 through May 31, 1991 would consume the credit for the twenty-one (21) and three-sevenths (3/7) weeks of workers' compensation benefits paid to claimant prior to hearing and cannot be used as a credit against this award. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Delbert C. Binford Attorney at Law 1200 Hub Tower 699 Walnut Street Des Moines, IA 50309 Mr. Joseph M. Barron Mr. Paul C. Thune Attorneys at Law Des Moines Bldg., Suite 700 405 Sixth Ave. P.O. Box 9130 Des Moines, IA 50306-9130 5-1100; 5-1108 5-3202; 5-1803 Filed December 15, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SHERRI K. MOREHOUSE, : : Claimant, : : vs. : : File No. 925056 BLUE STAR FOODS, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1100; 5-1108; 5-3202 Found claimant incurred a right knee injury that arose out of and in the course of her employment and was a sequela to her July 20, 1989 left leg injury resulting in claimant being awarded permanent partial disability from defendant employer and permanent partial disability from Second Injury Fund. 5-1803 Found claimant did not incur a simultaneous bilateral lower extremity work injury.