Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY SCHEUERMANN, : : Claimant, : File No. 928147 : vs. : A R B I T R A T I O N : OSCAR MAYER FOODS CORP., : D E C I S I O N : Employer, : Self-Insured, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Larry Scheurermann, claimant, commenced with the filing of a petition on December 12, 1989 against Oscar Mayer & Co. employer and self insured for worker's compensation benefits as a result of an alleged occupational hearing loss. The parties appeared as follows: the claimant in person and by his counsel Steven Jayne of Des Moines, Iowa and Harry Dahl, Sr. of Des Moines, Iowa for Oscar Mayer. The record in this proceeding consisted of the following: 1. The live testimony of the claimant. 2. Claimant's exhibits 1, 2 and 12 and Oscar Mayer's exhibits A-C. At the close of all evidence, the case was deemed fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. The rate of compensation, in the event of an award, is $243.51 per week. Claimant's gross weekly wage equals $377.92. At the time of the alleged injury, claimant was married and had one dependant child. He is entitled to three exemptions. In connection with any medical benefits claimant may be entitled to, the provider of the services would testify that the fees were fair and reasonable and necessary for treatment of the hearing loss Entitlement to temporary total disability or healing period benefits is not an issue in this dispute. Likewise, Page 2 the commencement date of benefits and entitlement to medical benefits are not issues for this decision. There are no bifurcated claims. The parties agree as to the amount of costs to be taxed. The defendants make no claim for employee nonoccupational group health plan benefits paid prior to hearing. ISSUES 1. Whether claimant sustained an injury on December 12, 1987 which arose out of and in the course of his employment. 2. The extent of entitlement to weekly compensation for permanent disability benefits and the commencement date therefore. 3. Oscar Mayer has pleaded two affirmative defenses, lack of notice in conformance with Iowa Code section 85.23 (1989) and statute of limitations pursuant to Iowa Code Section 85.26 (1989). FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. Claimant has worked for Oscar Mayer for 25 years as a meat cutter. He worked primarily on the cut floor pulling loins, lifting and trimming neck bones. Claimant last worked for Oscar Mayer on December 30, 1987. 2. Claimant had hand problems prior to 1985 which resulted in surgery. Claimant's healing period apparently lasted from October 1985 to February 1986. A claim for benefits relating to these problems is not in issue here. 3. In January of 1988, claimant had open heart surgery. After he recovered from his heart surgery, he had a second surgery on both of his hands. The surgeries on his hands prevented claimant from returning to work before the plant closed. While claimant intended to return to Oscar Mayer, to resume his work, the plant closed February 1, 1989. 4. Before claimant left the plant in December of 1987, he had a hearing test in July of 1987. Sometime before or after this last test, but while claimant was still working for Oscar Mayer, claimant had a conversation with the plant nurse who indicated to him that his hearing was worse. This conversation occurred before the statutory injury occurrence date which is one of three dates, December 30, 1897, February 1, 1989, or March 13, 1989. There is no evidence in the record that claimant had contact with anyone at Oscar Page 3 Mayer after December 30, 1987 regarding a hearing loss however. Oscar Mayer received no information or notice regarding claimant's hearing loss before December 8, 1989. See, Interrogatories 3, 8, Defense Exhibit C. 5. Claimant had hearing tests at work in 1976, 1977, 1978, 1981, 1982, 1984, and July of 1987. Additionally, claimant had a hearing test by an independent audiologist on March 13, 1989. 6. By 1981, Oscar Mayer was aware that cut floor employees were exposed to noise level of 85db or more. These employees were thereafter included in the annual hearing test performed at the plant as part of the hearing conservation program implemented in 1979 by Oscar Mayer. A noise monitoring study performed in 1987 indicates the following noise levels in the Perry plant: Location 8 hr. Time Weighted Average Exposure Wanderer 90db Stomach-vise line 90db Pull Leaf Lard 90db Shaving 98db Dropping Heads 91db Back Saw 94db Head Table 89db Kill-Utility 98db Apparently, a noise monitoring survey was not made of the cut floor. The claimant did indicate that his work station was approximately 50 feet from the shaving area but that the noise on the kill floor was louder than on the cut floor. There is no evidence of the noise levels on the cut floor however. Claimant did indicate his work area was noisy however. It is clear from this testimony and the noise survey, that claimant worked in a noisy work environment. Some parts of the plant were presumptively excessive noise areas. See, Iowa Code 85B.5 (1989). Claimant indicated that he worked on the kill floor for a short period of time before transferring to the cut floor. He was placed on light duty in 1986 on the kill floor. He did not work in the other areas identified in the noise monitoring survey. 7. There is no evidence in the record interpreting the audiometric test results from Oscar Mayer from the period 1976 to 1987. Additionally, the evidence showing a hearing loss reflected in the test dated March 13, 1989 is inconclusive. The audiologist apparently marked on the exhibit to show where the normal hearing range should be for claimant but this information was not apparent from the face Page 4 of the exhibit. The audiologist indicated that there had been a sensorineural loss of hearing but her follow-up letter of July 28, 1989 does not indicate where the claimant's normal hearing range is. There is no other expert testimony interpreting the results of the test performed at Oscar Mayer or the test performed by the audiologist. Given the state of the documentary evidence and the testimony adduced at the hearing, there is no way to determine whether there has been a sensorineural loss of hearing in one or both ears in excess of twenty-five decibels. CONCLUSIONS OF LAW AND ANALYSIS 1. Whether claimant sustained an injury on December 12, 1987 which arose out of and in the course of his employment. Iowa Code chapter 85B (1989) provides benefits for occupational hearing loss. Iowa Code section 85B.4(1) (1989) defines occupational hearing loss as permanent sensorineural loss of hearing in one or both ears in excess of 25 decibels which arises out of and in the course of employment caused by prolonged exposure to excessive noise levels. Iowa Code section 85B.4(2) (1989) defines excessive noise level to mean sound capable of producing occupational hearing loss. Iowa Code section 85B.5 (1989) further defines excessive noise level as sound which exceeds the times and intensities published in that section of the Iowa Code chapter 85B (1989). As with any type of workers' compensation claim, including an occupational hearing loss claim, the claimant has the burden of proving by a preponderance of the evidence that he has a hearing loss due to noise exposure in the work environment and it is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). The Iowa Supreme Court has indicated that there can be a hearing loss even if the noise level is below the level indicated in Iowa Code section 85B. 5 (989). Muscatine County v. Morrison, 409 N.W.2d 685, 688 (Iowa 1987). The Court also indicated that if the tables set out in Iowa Code section 85B.5 (1989) were not implicated in claimant's hearing loss, then the claimant must prove the loss of hearing was due to exposure to sound at work capable of producing that loss. Duration and intensity of exposure will be helpful to prove the necessary link between noise at work and the hearing loss. Muscatine County, 409 N.W.2d at 688. In this instance there is evidence that claimant worked in a noisy environment, but that is the only thing the claimant proved. The evidence is reveals that Oscar Mayer thought that the noise on the cut floor was at or exceeded Page 5 85db. However, the evidence is not clear that this was the noise level all the time and that this level of noise caused a permanent occupational hearing loss in the claimant. The claimant testified that the noise level on the cut floor was not as loud as the kill floor. The kill floor noise level was at 98db. Claimant also testified that he stood about 50 feet from the shaving area which had a noise level of 98db. From this testimony, the evidence suggests that the noise level was less than 98db. Since the differential between the range of noise levels is significant, it would be speculative to conclude that the tables in Iowa Code section 85B.5 were implicated in this instance. Such speculation cannot form the basis for an award for worker's compensation benefits. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 737-738 (Iowa 1956). However, even assuming that the noise level on the cut floor was excessively noisy and claimant was exposed to constant noise level for nearly 25 years, which produced a hearing loss as the court in Muscatine County, 409 N.W.2d at 688 suggests, this conclusion the application of the duration and intensity test articulated in Muscatine County, 409 N.W.2d at 688, does not relieve claimant of his burden to show not only a hearing loss but one that is permanent and in excess of 25db. There is no evidence in the record that shows that claimant has suffered a permanent sensorineural loss of hearing in one or both ears in excess of twenty-five decibels. The only evidence of sensorineural hearing loss is a statement by the audiologist on her report of March 13, 1989 that there has been a loss. There is no evidence of the amount of the loss. The follow-up letter dated July 27, 1989 from the audiologist reports the result of the March 13, 1989 test. But, there is no interpretation, or any comparison of the audiometric tests performed at Oscar Mayer and the test performed in March of 1989. The Oscar Mayer audiometric tests submitted by claimant are meaningless without some accompanying interpretation and comparison to the last test performed in March of 1989. Additionally, the audiologist apparently marked the normal hearing threshold areas on her report, but this information is not on the exhibit submitted as part of the record in this case. There is no way to discern from the report submitted how much of a loss the claimant has suffered. Consequently, claimant has failed to sustain his burden of proof and takes nothing from this proceeding. 2. Timely notification pursuant to Iowa Code section 85.23(1989) Even though claimant has failed to sustain his burden of proof in connection with showing a permanent sensorineural hearing loss in excess of 25db, the issue of failure to give notice must be considered because it is a jurisdictional issue. This issue requires a two pronged analysis to determine whether the provisions of Iowa Code section 85.23 (1989) as made applicable to occupational hearing loss by Iowa Code section 85B.14 (1989) have been satisfied. The first question is whether the employer or an employer's representative either had actual knowledge of the occurrence of an injury or notice of some kind from the Page 6 employee or the employee's representative that an injury had occurred. Secondly, the employer must be advised within ninety days from the date of the occurrence of the injury. If no notice is given, or the claimant fails to advise the employer that an injury has occurred within 90 days of the statutory injury occurrence date, the claim is barred. The notice requirement protects the employer by insuring that the employer is alerted to the possibility of a claim so that an investigation can be made while the claim is fresh. Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985); Robinson v. Department of Transportation, 296 N.W.2d 809, 811 (Iowa 1980); Hobbs v. Sioux City, 2 N.W.2d 275, 276 (Iowa 1942). However, any actual knowledge an employer has of the reasonable possibility of a claim before the date of discovery satisfies the notice requirement of Iowa Code section 85.23 (1989) and the claimant is relieved of notifying the employer further in connection with the claimant's injury. Dillinger, 368 N.W.2d at 181. A defense of failure to give notice is an affirmative defense and the burden on this issue lies with the employer. Reddick v. Grand Union Tea Co., 296 N.W.2d 800, 803 (Iowa 1941); McMasters v. Hutchins, 120 N.W.2d 509, 514 (Iowa 1963). It is clear from the evidence that Oscar Mayer knew that it operated a noisy plant in Perry. It had a noise survey performed in 1987 to verify this conclusion. There were excessively noisy areas in the plant including the stomach vise line, the leaf lard area, the shaving area, the dropping heads area, the back saw area, the head table area and the kill floor. Oscar Mayer had also included cut floor workers in the annual hearing test program conducted in the plant as part of the hearing conservation program for workers who worked in environments where the noise levels exceeded 85db. More specifically, Oscar Mayer conducted hearing tests for the claimant. There is some evidence in the record that suggests that Oscar Mayer knew claimant had a hearing loss based on claimant's audiometirc tests performed at the plant on an annual basis and statements made by the plant nurse. There appear to be changes in the audiometric tests from year to year but the significance of those changes is unknown because there is nothing in the record explaining the meaning of the tests performed between 1976 and 1987. Claimant worked near but not in any of the presumptively excessive noise departments. The evidence as to what Oscar Mayer actually knew about claimant's hearing loss is in equipoise. Since Oscar Mayer has the burden on the issue of notice, it has failed to present sufficient evidence to show that it did not have actual knowledge of the claimant's potential claim for an occupational hearing loss. Based on the tenets of Dillinger, the claimant is relieved of the obligation to give the statutory notice required by Iowa Code 85.23 (1989). 3. Whether claimant timely filed his original notice and petition to preserve his claim for benefits. Oscar Mayer has also asserted a second affirmative defense regarding the timeliness of the filing of claimant's Page 7 original notice and petition. Iowa Code section 85B.14 (1989) provides that the provisions of the workers' compensation law in Iowa Code chapter 85 (1989) apply to occupational hearing loss cases in so far as applicable and when not inconsistent with Iowa Code chapter 85B (1989). Therefore, the statute of limitations of Iowa Code section 85.26 (1) (1989) is applicable to this hearing loss claim because there is no separate statute of limitations in Iowa Code section 85B (1989). Iowa Code section 85.26(1) (1989) requires an original proceeding to be commenced within two years of the date of injury. The statutory injury occurrence date is controlled by Iowa Code section 85B.8 (1989). The Supreme Court has interpreted this provision in John Deere Dubuque Works v. Weyant, 442 N.W.2d 101, 104-105 (1989). The Court found that the Legislature gave claimants four alternative time frames within which to calculate the statutory injury occurrence date for an occupational hearing loss. These dates include the transfer date from an excessive noise level employment by an employer, retirement date, a termination date of the employer-employee relationship and in the event of a layoff that lasts longer than one year, the statutory injury occurrence date is six months after the date of the layoff. In order to decide whether a claimant has been transferred from an excessive noise environment, the court adopted a four part test to use in analyzing whether a change in positions would constitute a transfer under Iowa Code section 85B.8 (1989). A transfer under this provision means: 1. A clearly recognizable change in employment status; 2. Which provides a reduction of noise exposure to a level that is not capable of producing an occupational hearing loss; and, 3. Which is permanent or indefinite in the sense that there is no reasonable expectation that the worker will be returned to a position with excessive noise level exposure in the ordinary course of operations in the employer's business. 4. The transfer to another position must continue for at least six months. Using the statutory guides and the analysis employed in Weyant, there are three possible injury occurrence dates that trigger the running of the statute of limitations. These include December 30, 1987, the date claimant left his employment and had heart surgery; February 1, 1989, the day the Perry plant closed and the employee-employer relationship terminated between Oscar Mayer and claimant; or March 13, 1989, the day claimant had his hearing test and was presumably advised that he had a progressive sensorineural hearing loss. Claimant filed this action on December 12, 1989. Using any of these dates, claimant has Page 8 timely filed his petition and Oscar Mayer has failed to sustain its burden in connection with its defense of statute of limitations. 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 March 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr Steven C Jayne Attorney at Law 5835 Grand Ave Ste 201 Des Moines Iowa 50312 Mr Harry W Dahl Sr Attorney at Law 974 73rd St Ste 16 Des Moines Iowa 50312 5-1402.20; 5-2208; 5-1403.30 Filed March 8, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : LARRY SCHEUERMANN, : : Claimant, : File No. 928147 : vs. : A R B I T R A T I O N : OSCAR MAYER FOODS CORP., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1402.20, 5-2208 Claimant failed to sustain burden of proof on an occupational hearing loss claim. There was no evidence in the record of a sensorineural hearing loss in excess of 25db. 5-1403.30 Employer pleaded two affirmative defenses; failure to give notice and statute of limitations. The evidence on the first defense was in equipoise and the employer failed to sustain its burden. On the second issue, any of the injury occurrence dates available in this dispute were within the two year statutory bar deadline and the claim was not barred on that basis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : HOWARD RAVELING, : : Claimant, : : vs. : : File No. 928403 THORSTAD CONSTRUCTION : COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Howard Raveling, against his employer, Thorstad Construction Co., and its insurance carrier, CNA Insurance, defendants. The case was heard on August 20, 1992, in Mason City, Iowa, at the Cerro Gordo County Courthouse. The record consists of the testimony of claimant. The record also consists of the testimony of Larry Allen Bash, owner of defendant employer. Additionally, the record consists of joint exhibits A through U. ISSUES The issues to be determined are: 1. Whether there is a causal relationship between the work injury and any permanent disability; 2. Whether claimant is entitled to any permanent partial disability benefits; and, 3. The appropriate rate to use when calculating any permanent partial disability benefits. Page 2 FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant turned 60 years old on June 12, 1992. He is a man of small physical stature. He completed the eighth grade in Minnesota. However, in 1946, he quit school in order to assist his father on the family farm. Claimant worked on the farm until the fall of 1951 when he became employed at Chicago Bridge and Iron. In January of 1952, claimant enlisted in the U.S. Army. He was in active duty for 23 1/2 months, and in January of 1954, he left active duty and was then on inactive duty for the next six years. In 1954, claimant returned to work on the family farm for approximately one and one-half years. Next, he returned to construction work where he was involved in erecting farm silos for three years. After that job, claimant worked at a filling station and then he again returned to farming. In March of 1967, claimant commenced employment with the then Thorstad Construction Company. He was initially hired as a shop worker. However, after a year, he began construction work at various job sites. His duties included repairing and building feed mills, grain elevators and fertilizer plants. Claimant also installed machinery, mixers, grinders and baggers. Claimant terminated his employment with Thorstad in 1975. Claimant then moved to Schaller, Iowa. He was employed by Hanson Silo from 1976 through 1978. At Hanson, claimant operated a concrete cement mixer, and he built concrete structures. In April of 1979, claimant returned to work for Thorstad Construction at a higher rate of pay. Mr. Larry Bosch later purchased the company from its former owners. Claimant remained employed by defendant employer for ten years. He worked up until the date on which he was injured. The injury occurred on August 20, 1989. Claimant was often a "working foreman" with supervisory responsibilities. During the course of his employment with defendant employer, there were years where claimant worked through the winter months. There were also years where claimant was periodically laid off during the winter months. On the date of the work injury, claimant was working at the AGP plant in Mason City. A plant addition was in progress. Claimant began work at 6:30 a.m. Generally, he worked until 5:00 p.m. However, on the date in question, claimant had only worked 15 to 20 minutes before he sustained his work injury. At the time of the work injury, claimant had just begun removing forms from hardened concrete. He was bent over in an attempt to pull up a stake. He slipped in mud as he was Page 3 pulling on the stake, and he felt a severe pain in his back but below his belt line. The parties stipulated that claimant sustained an injury which arose out of and in the course of his employment. That day, claimant was able to drive his own vehicle for a chiropractic treatment. He saw Richard W. Haas, D.C., immediatgely following the injury. Dr. Haas diagnosed claimant's condition as: "Lumbo-sacral sprain/strain with associated para-lumbar muscle spasm and muscle pain, caused by lifting a post out of the ground." (Defendants' Exhibit L) Dr. Haas referred claimant back to his treating chiropractor, Brian Nook, D.C. Dr. Nook had treated claimant on prior occasions for preexisting back problems. Claimant, at all times, had been able to return to work. Defendants eventually authorized treatment for claimant with John J. Dougherty, M.D., an orthopedic surgeon. Dr. Dougherty examined claimant on January 18, 1990. The orthopedic surgeon authored a report, dated January 23, 1990. In the report, Dr. Dougherty opined: In conclusion, I have reviewed the x-rays from Minnesota from Dr. Nook and basically they are about the same. I think this patient's main problem is degenerated disc at L-5, S-1. The question is, could he have a herniated disc too. I really don't think so. We opted to give him a better back support, put him on some medicine. Will see him in three weeks. In the meantime, we'll try to get an MRI. I don't think this patient has a herniated disc, but also question if he should be doing this type of work. If he has these tests and it proves to be negative, one could consider a back fusion. (Def. Ex. F, p. 2) Dr. Dougherty continued to treat claimant with physical therapy and medication. The physician recommended a functional capacity evaluation, which was duly performed. The evaluation contained the following restrictions: a. Sit 1-2 hours short durations. b. Stand 1-2 hours short durations 48" working height most comfortable. c. Walk 5-6 hours moderate distances. d. Occasionally: bend/stoop squat crawl climb stairs reach above shoulder level crouch kneel balance push/pull e. Occasionally lift: up to 10 lbs. above shoulders up to 24 lbs. desk/chair up to 34 lbs. chair/floor Dr. Dougherty later opined that claimant could perform some Page 4 type of work but that claimant was precluded from returning to his former position. Dr. Dougherty opined that vocational rehabilitation was in order. Defendants authorized medical management and vocational rehabilitation through Intracorp, Inc. During the course of its involvement in the case, Intracorp, Inc. supplied three individuals to work with claimant. Most of the allocated resources of the company were devoted to medical management rather than to vocational rehabilitation. However, Shelly Foss, the third specialist, did provide some vocational rehabilitation services to claimant. After a period of time, Ms. Foss closed the file on the matter. Eventually, claimant received disability benefits through the Social Security Administration. At the time of the hearing, claimant was not employed, however, he did assist his spouse, Mary, with her antique business. His duties included driving to and from the location for an antique show, loading and unloading antiques from the family vehicle, setting up the booth, and assisting customers with sales. In a video tape which was shown during the hearing, claimant was depicted performing many of the aforementioned activities. CONCLUSIONS OF LAW The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. Dr. Dougherty, the treating physician opined that: I have reviewed this patient's chart with regard to attempting a disability rating. I feel Page 5 this patient sustained a sprain superimposed upon his degenerative changes. I feel the degenerative changes are of longstanding duration. He denied having any significant problems before. If that truly be the case, I am a little surprised why he hasn't returned to the way he was last August. Be as it may, he says he has not. I would feel he's probably sustained a disability rating of around 7% permanent partial impairment of his body as a result of an aggravation apparently persisting and superimposed upon aggravation of his pre-existing condition. (Def. Ex. F, p. 7) Dr. Dougherty's opinion was uncontroverted. He causally related claimant's condition, in part, to the present work injury. The orthopedic physician opined there had been an aggravation to claimant's preexisting condition, and that claimant was left with a physical impairment and was unable to return to construction. Dr. Dougherty's opinion was given much weight since he was the authorized treating physician. There was no contrary evidence. Dr. Dougherty had ample opportunity to examine and treat claimant. This was a classic case under the rationale of Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991). Claimant's permanent disability was attributable to the August 29, 1989 work injury. Apportionment of disability was not proper here because prior to the August 29, 1989 work injury claimant was not industrially disabled. Defendants did not meet their burden of proof regarding the apportionment of any disability. The burden of showing that disability was attributable to a preexisting condition was upon defendants. Where evidence to establish a proper apportionment was absent, the defendants were liable for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Varied Enterprises v. Sumner, 353 N.W.2d 407, 410-11 (Iowa 1984). Here, defendants were liable for any existing disability. The claimant had the burden of proving by a preponderance of the evidence that the injury of August 28, 1989, was causally related to the disability on which he based 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 was insufficient; a probability was necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection was essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Claimant had sustained a permanent impairment because of his low back injury (Def. Ex. F-7). He was functionally impaired according to his treating orthopedist. Defendant employer had refused to accommodate claimant, despite the fact that claimant had worked as a supervisor. He was Page 6 precluded from returning to construction as a working foreman. Claimant was permanently restricted. Most construction sites had working foremen. Other than in the construction industry, claimant had few transferable skills. He did not even possess a GED. Claimant had an eighth grade education. His last year in formal education occurred in 1946. Claimant is 60 years old. His age was a disadvantage. Prior to the work injury, claimant had no thoughts of retirement, despite claimant's advancing age. Claimant's age had an effect upon claimant's industrial disability. His age placed him at a stage in life when most workers were retired or were contemplating retirement. Claimant's injury deprived him of earning capacity, but claimant lost less earning capacity than the earning capacity suffered by a much younger worker with a comparable injury. The approach of later years when it could be anticipated that under normal circumstances a worker would be retiring, was without some clear indication to the contrary, a factor which could be considered in determining the loss of earning capacity or industrial disability which was causally related to the injury. Merrill v. Eaton Corporation, 707565 (Appeal Dec. May 9, 1990); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979). In the case at hand, defendants emphasized the factor of motivation. They maintained that claimant had lacked the motivation necessary to obtain his GED and to find another position. While it was true that claimant had not followed through and obtained his GED, defendants had been more interested in the medical management of the case rather than in the rehabilitation. Claimant was not precluded from all employment. That fact was evidenced because claimant regularly assisted his spouse with her antique business. The video tape illustrated some of the duties which claimant could perform without visible strain (Def. Ex. E). Therefore, based upon all of the foregoing, it is the determination of the undersigned that claimant is industrially disabled. He is entitled to a permanent partial disability of 70 percent, commencing from the stipulated date of April 17, 1990. The final issue to address concerns the rate to be used in calculating claimant's weekly benefits. Defendants maintained claimant was a seasonal employee and that his weekly benefit rate was calculated pursuant to section 85.36(9). That section provided that: In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the weekly earnings shall bel noti350) weeks of permanent partial disability benefits from April 17, 1990 at the stipulated rate of two hundred thirty- seven and 17/100 dollars ($237.17) per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten (10) percent per year pursuant to section 85.30, Iowa Code, as amended. Defendants shall take credit for all benefits previously paid. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1992. ________________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr Steve Hamilton Attorney at Law 606 Ontario St P O Box 188 Storm Lake IA 50588 Mr Michael A McEnroe Attorney at Law 3151 Brockway Rd P O Box 810 Waterloo IA 50704 3000; 1800; Filed November 10, 1992 Michelle A. McGovern BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : HOWARD RAVELING, : : Claimant, : : vs. : : File No. 928403 THORSTAD CONSTRUCTION : COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 3000 Claimant was employed as a working foreman in the construction industry. His employer was engaged in the construction of metal buildings, bins and fixtures used in agriculture. Testimony was elicited that during some winter months, claimant had worked but that during other winter months, claimant was "laid off." Testimony was also elicited that employees of other construction companies were engaged in similar tasks during the winter months. It was held that claimant was not a seasonal employee under section 85.36(9). 1800 Claimant was awarded an industrial disability of 70 percent. He was functionally impaired because of a low back injury. The treating orthopedist precluded claimant from returning to the construction industry as a working foreman. The treating physician imposed rather severe restrictions on claimant. Claimant was 60 years old. He left school in 1946 when he was in the eighth grade. Claimant possessed no GED. He had few transferable skills outside of the construction industry. Defendant employer would not accommodate claimant, despite the fact that claimant had performed duties as a foreman. Claimant was capable of performing some duties. For several years, he had assisted his spouse in her antique business. His duties, as seen on a surveillance tape, included driving to and from the location of any antique show, loading and unloading antiques from the family vehicle, setting up booths, and assisting customers with sales. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KATHLEEN SUE FOX, : : Claimant, : : vs. : : File No. 928436 ALTOONA MANOR CARE CENTER, : : O R D E R Employer, : : C L A R I F Y I N G and : : D E C I S I O N NATIONAL UNION FIRE INSURANCE,: : Insurance Carrier, : Defendants. : ___________________________________________________________ The parties move to clarify the decision filed January 31, 1992, with reference to entitlement to temporary total disability benefits and rate of compensation. findings of fact The parties stipulated in the prehearing report that claimant was off work from September 8, 1989 through October 6, 1990. It was found that claimant returned to work on October 7, 1990. This period of absence from work was due to the work injury. With reference to rate, the parties stipulated that claimant is entitled to a rate of compensation appropriate for a gross weekly rate of $212.55, single status and entitlement to one exemption. The commissioner's published rate booklet calls for a rate of compensation based on those stipulations of $134.57. conclusions of law Claimant is entitled to temporary total disability benefits from September 8, 1989 through October 6, 1990 at the rate of $134.57 per week. order Any portion of the decision inconsistent with the above is modified accordingly. The balance of the decision is reaffirmed. Signed and filed this ____ day of February, 1992. Page 2 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Charles S. Crook, III Attorney at Law Suite 1100 Fleming Bldg 218 Sixth Ave Des Moines IA 50309 Mr. Andrew J. Bracken Attorney at Law 100 Court Ave Suite 600 Des Moines IA 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RANDY BEARD, Claimant, vs. File No. 928508 LAND O LAKES, A R B I T R A T I O N Employer, D E C I S I O N and KEMPER INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Randy Beard, against his employer, Land O Lakes, and its insurance carrier, Kemper, to recover benefits under the Iowa Workers' Compensation Act, as a result of an injury sustained on September 7, 1989. This proceeding came on for hearing before the undersigned deputy industrial commissioner at Waterloo, Iowa, on June 15, 1993. A first report of injury has been filed. The record consists of the testimony of claimant, of Robert Beard, of Ken Joseph Wragge, of Clara Johnson, Nolan Norris, and of Jamie C. Scott as well as of claimant's exhibits 1 through 4 and defendants' exhibits A. ISSUES Pursuant to the hearing assignment order, the hearing report, and the oral stipulations of the parties at hearing, the parties have stipulated to the following: (1) An employer-employee relationship existed between claimant and the named employer at the time of the injury; (2) Claimant did receive an injury which arose out of and in the course of his employment on September 7, 1989; (3) That injury was causally connected with a period of temporary total disability for which benefits have been previously paid; (4) The commencement date for any permanent benefits due claimant is April 9, 1990; (5) Defendants have paid claimant 60 weeks of permanent partial disability benefits at the weekly rate of $266.42; and the claimant, at time of injury, had a gross weekly wage of $450 and was single and entitled to one exemption resulting in a weekly rate of $266.42. Page 2 Issues remaining to be decided are: (1) Whether a causal relationship exists between the injury and claimed permanent disability; and (2) The nature and extent of any permanent disability benefit entitlement. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 32-year-old single man who has worked for the employer for 12 years. His prior work experience has been in general labor and farming. Claimant is a high school graduate who characterized his grades as average. Claimant reported having difficulties with reading, having repeated the second grade, and of having worked with a speech pathologist in third or fourth grade. On September 7, 1989, claimant received an injury arising out of and in the course of his employment while stacking commercial cartons of margarine, weighing from 10 to 30 pounds, onto a pallet to a height of approximately six feet. Claimant initially saw his family doctor and then saw, A. Donald Smith, M.D., the company physician. Dr. Smith placed claimant on strict bedrest and prescribed Motrin and Flexeril. Claimant did not improve and Dr. Smith referred claimant to _______ Crouse, M.D., an orthopedic surgeon. The insurance carrier subsequently referred claimant to Jitu D. Kothari, M.D., a board certified orthopedic surgeon who became claimant's treating physician. Dr. Kothari initially treated claimant conservatively with complete bedrest, epidural cortisone injection, exercise, physical therapy and analgesic and muscle relaxant medication. A lumbar myelogram was performed November 11, 1989. Dr. Kothari interpreted the myelogram as showing spondylolisthesis at the L4-5 level, with 1 cm anterior displacement of L4 over L5. The myelogram also revealed a nerve root defect on the left L4-5, with nonfeeling of the left L5 nerve root consistent with claimant's clinical findings of left leg pain. Dr. Kothari performed a bilateral, posterolateral spinal fusion of L4 through S1 using a donor bone graft on December 11, 1989. On April 5, 1990, Dr. Kothari reported that claimant was "okay for a sit-down job only", with minimal walking and standing and no lifting of greater than ten pounds and no bending, twisting and turning with his lower back as of Monday, April 9, 1990. On June 8, 1990, Dr. Kothari release claimant for fork lift truck driving and continued his ten pound lifting restriction as well as his restrictions on twisting, turning or bending with the back. On July 25, 1990, Dr. Kothari characterized claimant as clinically doing well and stated it was okay for claimant to return to his previous job, with the only restriction being a 30 pound weight restriction. On March 14, 1991, Dr. Kothari opined Page 3 that pursuant to page 73 of the AMA Guides, claimant had a 12 percent permanent impairment. Arnold E. Delbridge, M.D., also a board certified orthopedic surgeon, independently evaluated claimant on February 4, 1993 and issued medical reports on April 19, 1993, and May 3, 1993. Dr. Delbridge characterized claimant's fusion as solid. Dr. Delbridge found claimant had the following losses of lumbar range of motion: 20 degrees flexion; 10 degrees extension; 5 degrees side to side; and 10 degrees bilateral rotation. Dr. Delbridge characterized claimant as having a permanent partial impairment of 18 percent of the body as a whole pursuant to the combined values charts under the AMA Guides, stating that that represented 13 percent as result of a two-level operated spondylolisthesis and 6 percent as a result of the fusion. Dr. Delbridge agreed that claimant's maximum lifting should be 30 pounds with repetitive lifting of 15 to 20 pounds only and no lifting below knee level. Delbridge reported that claimant should not do continuous twisting and turning while lifting and should not engage in prolonged above-shoulder work. Given the impairment assignations of both Dr. Kothari and Dr. Delbridge, it is expressly found that claimant has a moderately severe permanent partial impairment of his lumbar spine on account of his spondylolisthesis and subsequent surgical fusion. Dr. Delbridge reported claimant's prognosis as guarded and stated that claimant "may very well" gradually deteriorate the disc at the L3-4 level given claimant's increased concentration of force on account of his fusion. Dr. Delbridge also opined that it was "entirely possible" that claimant "may run into further difficulties down the line, on account of his injury and fusion." Dr. Delbridge's comments in this regard are couched in the language of possibility and not probability. It is expressly found that the doctor's remarks are speculative only and do not reflect claimant's actual level of physical residuals as a result of his injury at time of hearing. Dr. Delbridge's remarks, therefore, are given little weight. Claimant returned to light duty work on April 9, 1990 and subsequently returned to his pre-injury job on a full duty basis with accommodation for his 30 pound lifting restriction. Claimant reported that he does not now stack but does do machine running and margarine packing. Claimant reported that he uses a fork lift or seeks help from other employees where substantial lifting is involved. In his recreational life, claimant continues to hunt, albeit with some difficulty. He reports he is unable to play softball, or snow and water ski. He is able to motorcycle ride and golf occasionally. Claimant is also unable to do heavy yard, wood cutting, fencing or farm work as he had done prior to his injury. Claimant currently earns $13.25 per hour. He could not recall his wage at the time of the injury. The record reflects claimant has received plant wide wage increases since his injury, however. Claimant has not missed work on account of his back but has taken voluntary layoff since his injury in order to "do things he wanted to do." Claimant has neither been criticized or Page 4 disciplined for his job performance since his return to work. Claimant stated that he had not bid on the material coordinator job when posted because it required lifting. He had not discussed whether the job could be modified to accommodate his lifting restriction with management before choosing not to apply. Claimant's seniority is such that claimant likely will not be subject to involuntary layoff with the employer. Claimant expressed a subjective concern that the employer's plant will close. The employer is currently making monetary investments to expand the Hudson plant. Given those activities, consideration of a plant closing that would end claimant's employment with this employer would be speculative. CONCLUSIONS OF LAW Our first concern is whether claimant has shown a causal relationship between his injury and claimed permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). There is little direct expert testimony relating claimant's current problems to his work injury. The history of the work injury, claimant's medical history and treatment subsequent to the injury, and 30 pound permanent lifting restriction the treating physician imposed subsequent to the injury and the assignation of functional impairment ratings subsequent to the injury make it more probable than not that claimant has permanent residuals resulting in permanent disability subsequent to the injury. Therefore, claimant has established a causal relationship between his work injury and his permanent disability. Page 5 We next consider the question of the extend of claimant's permanent partial disability entitlement. As claimant's injury is in the body as a whole his disability, of necessity, is industrial disability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, Page 6 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant has suffered no actual loss of earnings on account of his work injury. He returned to work in the job he held prior to the injury albeit with accommodation of his 30 pound lifting restriction. Claimant's current job is within claimant's educational attainment, work qualifications, and experience. It does not appear that claimant will have great difficultly in continuing to do his job or that claimant is likely to need to involuntarily leave his employment with employer in the foreseeable future. Claimant's functional impairment, as noted above, is moderately severe and with his 30 pound lifting restriction is likely to preclude claimant voluntarily leaving this employment and easily attaining another heavy labor job. Claimant's educational qualification and experience all indicate that, but for his functional impairment and restriction, he would be more employable in heavy labor jobs than in the moderate labor jobs for which his lifting restriction now suits him. Claimant's inability to easily secure other employment for which he would otherwise be suited is a factor that may properly be considered in assessing claimant's current industrial loss of earnings capacity. When that preclusion is considered with claimant's functional impairment, lifting restriction, education, qualifications, and past employment, claimant is found to have sustained a 15 percent loss of earnings capacity. Page 7 ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for seventy-five (75) weeks at the rate of two hundred sixty-six and 42/100 dollars ($266.42) with those benefits to commence on April 9, 1990. Defendants receive credit for benefits already paid. Defendants pay any accrued amounts in a lump sum. Defendants pay interest pursuant to section 86.30. Defendants pay costs pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as required by the agency. Signed and filed this ____ day of June, 1993. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert C. Andres Attorney at Law First National Bldg., 6th Floor E. 4th & Sycamore PO Box 2634 Waterloo, IA 50604-2634 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, IA 52801 51803 Filed June 28, 1993 Helenjean M. Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RANDY BEARD, Claimant, vs. File No. 928508 LAND O LAKES, A R B I T R A T I O N Employer, D E C I S I O N and KEMPER INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 51803 Claimant, who had returned to work with the employer in his pre-injury job with accommodation of his 30 pound lifting restriction, awarded 15 percent permanent partial disability subsequent to a work injury and related L4-S1 fusion for work-related spondylolisthesis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BETH WOLCOTT, : : Claimant, : : vs. : : File No. 928917 BIL MAR FOODS, INC., : : Employer, : N U N C : and : P R O : TRAVELERS INSURANCE COMPANY, : T U N C : Insurance Carrier, : O R D E R Defendants. : ___________________________________________________________ On January 23, 1992, the undersigned filed an arbitration decision in which he made an inadvertent error that should be corrected. The undersigned, on page 9 of said decision, in applying the provisions of 85.34(2)(s), took the 5 percent permanent impairment to the left upper extremity and the 18 percent permanent impairment to claimant's right upper extremity and converted them directly on the combined charts without first applying the conversions of the upper extremities to the body as a whole. Instead of the combined impairment being 22 percent permanent impairment, it should be 14 percent permanent impairment, taking the 3 percent body as a whole after being converted from the 5 percent upper extremity and taking the 18 percent upper extremity into an 11 percent body as a whole. Therefore, the undersigned should have found that the number of weeks to which the claimant is entitled to permanent partial disability benefits is 70 weeks instead 110 (500 x 14 = 70). The undersigned inserts the following in lieu of the last paragraph of the Conclusions of Law: Claimant did not have any permanent impairment or disability on the date she began work with defendant employer on June 12, 1984. Under the provisions of 85.34(2)(s), claimant is entitled under the combined charts to 70 weeks of permanent partial disability benefits at the rate of $194.32 per week based on the fact that claimant has a combined permanent partial impairment on the combined charts of 14 percent. The undersigned inserts the following in lieu of the first paragraph of the Order: That defendants shall pay unto claimant seventy (70) Page 2 weeks of permanent partial disability benefits at the rate of one hundred ninety-four and 32/100 dollars ($194.32), commencing August 8, 1990. The above paragraphs shall be inserted as if they were in the original decision. All the other provisions shall stand as previously set out therein unless inconsistent with the above changes therein. Signed and filed this ____ day of February, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Michael Chozen Attorney at Law 832 Lake St Spirit Lake IA 51360 Mr Charles T Patterson Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DAN PATTERSON, : : Claimant, : : vs. : File No. 928979 : JCA EXPRESS, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : FIREMAN'S FUND INSURANCE COS.,: : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Dan Patterson against his former employer JCA Express, Inc., based upon an injury that occurred on August 31, 1989. Claimant seeks a determination of his entitlement to healing period and permanent partial disability. The case was heard at Des Moines, Iowa on May 3, 1991. The evidence consists of testimony from Dan Patterson, Jerry Ayers, Neva Jorgenson and Doris Downs. The record also contains jointly offered exhibits 1 through 5. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Dan Patterson is a 34-year-old married man who lives at Rural Route 1, Peru, Iowa on a 260-acre farm. Patterson dropped out of high school at the tenth grade level. He related that school was difficult for him and that his grades were bad. Patterson completed a course in agriculture during the early 1980s. He obtained a GED in 1986. After leaving school, Patterson entered the United States Marine Corps for three years. Following his discharge, he worked for approximately a year operating a brake press for Fawn Engineering. Patterson then successfully operated a restaurant and a tavern for several years before returning to Fawn Engineering where he worked as an assembler. Patterson next worked as an electrician's helper for three or four months for a company that installed wiring in grain dryers. Patterson started farming in 1985. He grows row crops Page 2 and raises cattle. He has continued that operation and at the present time has 300 acres of crops and approximately 60 head of cattle. In 1986, Patterson began working for Madsen Truck Lines as an over-the-road driver. A few months later, he obtained employment with JCA Express, Inc., again working as an over-the-road driver. In three or four months, he got a job as a city driver which allowed him to be home every night. The work required that he handle, load and unload freight, most of which was by hand. He initially had no problems performing the job. He worked as needed by JCA and took time off for his farm work. On August 31, 1989, Patterson injured his back while attempting to shift a pallet loaded with paper plates in order to prevent a forklift driver from tearing the paper which covered them. The injury was reported promptly. Claimant obtained treatment from local physician Edward Miles, D.O., who in turn referred claimant to orthopaedic surgeon Martin Rosenfeld, D.O. Patterson was off work from September 1, 1989 until September 25, 1989 when he resumed work with a restriction against heavy lifting (exhibit 4, page 31A). In a report dated September 29, 1989, Dr. Miles indicated that claimant had been able to resume regular work and that no permanent defect was expected (exhibit 4, page 28). Patterson was assigned work which consisted only of driving the truck. He was given no duties which would require loading or unloading. According to Patterson, even simply driving aggravated his back severely and he sought additional medical care from Dr. Rosenfeld on October 3, 1989 (exhibit 4, page 54). At times over the years of his employment with JCA Express, Patterson had difficulties getting along with some of his employer's customers and in fact had caused the employer to lose some business. On September 27, 1989, Patterson was observed in an area of Des Moines which is commonly frequented by prostitutes and was observed picking up a woman in that area and then returning her approximately 15 minutes later. Neva Jorgenson, who observed the activity, used the company name from the truck Patterson was driving to locate the company and reported the incident. Patterson was subsequently discharged for misconduct. He received the discharge notice by certified mail on or about September 30, 1989 (exhibit 1, pages 9-12). Jerry Ayers, JCA Express, Inc., president, related that he did not mention the incident with the alleged prostitute in the original notification since he did not want to cause Patterson problems with his family, but that he did use the information when Patterson sought unemployment benefits. After returning to Dr. Rosenfeld, Patterson was initially treated with physical therapy until mid-November 1989 (exhibit 4, pages 34-51). An epidural steroid injection was administered on November 17, 1989 without significantly improving Patterson's condition (exhibit 4, page 64). A radiology report dated December 5, 1989 reported minimal spondylosis of the mid and thoracic spine Page 3 with mild midlumbar rotoscoliosis and some desiccation of the L4-5 intervertebral disc (exhibit 4, pages 79 and 80). The defendants became dissatisfied with claimant's course of recovery and directed him to seek further care from orthopaedic surgeon William R. Boulden, M.D. Dr. Boulden diagnosed claimant as having a degenerative lesion that has been significantly aggravated (exhibit 4, page 82). He related the aggravation to the August 31, 1989 injury and characterized it as an aggravation of a preexisting condition (exhibit 4, page 84). Dr. Boulden treated claimant with an exercise program and a corset. At an entry dated February 27, 1990, Dr. Boulden reported that claimant has reached maximum medical improvement, but that he was unable to return to truck driving as it would definitely aggravate his back. Dr. Boulden reported that claimant needs a job where he can change positions freely and avoid repetitive bending and twisting. As a result of a functional capacity assessment, a report dated March 6, 1990 indicates that claimant is classified as having the capacity to perform medium or light work and also that he has a ten percent permanent functional impairment as a result of his back condition (exhibit 4, pages 93 and 94). It is found that the assessment of this case as made by Dr. Boulden is correct. Dr. Boulden is a well-qualified orthopaedic surgeon who is fully familiar with the claimant's objective medical condition. Dr. Boulden would not be likely to be swayed by subjective complaints if there were not objective evidence to corroborate them. Patterson now limits his activities to farming in a quite modern farming operation which involves little physical labor. He has not sought other work. He performs custom baling and mowing. Patterson operates a modern tractor which would be expected to be much more comfortable than the tractors in common use 20 years ago. His statement comparing its comfort to a Cadillac is an exaggeration. During 1990, he earned approximately $10,000 performing custom baling. His profit from farming in 1990 was likewise approximately $10,000. Patterson's annual earnings from truck driving with JCA Express had been in the range of $6,000 or $7,000 dollars. He drove intermittently as needed by the employer and took time off as needed for his farming activities. conclusions of law The ultimate issues in the case are the extent of the healing period and the amount of permanent partial disability compensation. The healing period under section 85.34(1) of The Code ends at the time the employee returns to work, when it is medically indicated that further significant improvement from the injury is not anticipated or at such time as the employee is medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury, whichever occurs first. As established by Dr. Boulden, Dan Patterson is not Page 4 medically capable to returning to substantially similar employment. The healing period therefore ends with either a return to work or with the attainment of maximum medical improvement. According to Dr. Boulden, maximum medical improvement occurred February 27, 1990. That date is consistent with the course of treatment that had been provided. The question then becomes whether or not whatever farming activities were performed would have constituted a return to work. It is not every bit of gainful activity which constitutes a sufficient return to work to terminate a healing period. The requisite return to work must be substantial gainful activity. Merely hauling a load of grain to the local elevator does not constitute sufficient substantial gainful activity to end the healing period. A return to work usually indicates recuperation from the injury to the point that the individual is capable of resuming what is essentially full-time employment in order for the individual to earn a living. The evidence in this case shows that Patterson had not recuperated, was still under aggressive medical treatment and had not resumed activities which were in the nature of what would normally be considered full-time gainful employment. While he likely performed some farm chores, farming is not a particularly active vocation during the winter months. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 13-1; Donoho v. T & T Services, file number 722150 (Arb. Decn., February 28, 1989). Light work does not terminate the healing period, except in the temporary partial disability setting. Webb v. Lovejoy Constr. Co., II Iowa Industrial Commissioner Report 430, 433 (1981). It is therefore determined that the correct end of the healing period in this case is February 27, 1990, the point at which it was medically indicated that further significant improvement from the injury was not anticipated. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened Page 5 earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Aggravation of a preexisting condition is one form of compensable injury. 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). Much was made of the fact that claimant's employment was terminated for misconduct. The penalty for that misconduct was the denial of unemployment benefits. According to the medical evidence in the record, however, it is well established by Dr. Boulden that claimant is not physically capable of resuming work as a truck driver. According to Jerry Ayers, he would not hire a person to work as a driver with the medical restrictions which have been placed upon Dan Patterson. While Ayers indicated that he would have accommodated Patterson's restrictions, absent the misconduct, there is nothing in the record which explains how the claimant could have engaged in driving a truck and stayed within the restrictions. The assessment by Dr. Boulden is correct. Claimant is now engaged in a farming operation which seems appropriate for him. When all the pertinent factors of industrial disability are considered, it is concluded that Dan Patterson sustained a 25 percent permanent partial disability as a result of the August 31, 1989 injury. order IT IS THEREFORE ORDERED that defendants pay Dan Patterson twenty-five (25) weeks of compensation for healing period with three and four-sevenths (3 4/7) weeks thereof payable commencing August 31, 1989 and with the remaining twenty-one and three-sevenths (21 3/7) weeks payable commencing October 1, 1989, all payable at the stipulated rate of one hundred fifty-nine and 26/100 dollars ($159.26) per week. IT IS FURTHER ORDERED that defendants pay Dan Patterson Page 6 one hundred twenty-five (125) weeks of compensation for permanent partial disability at the stipulated rate of one hundred fifty-nine and 26/100 dollars ($159.26) per week payable commencing February 28, 1990. IT IS FURTHER ORDERED that defendants receive credit for all weekly compensation previously paid and that the past due, accrued amounts be paid to the claimant in a lump sum together with interest pursuant to section 85.30 of The Code computed from the date each weekly payment came due until the date of actual payment. 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 ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1802; 1803 Filed July 17, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : DAN PATTERSON, : : Claimant, : : vs. : File No. 928979 : JCA EXPRESS, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : FIREMAN'S FUND INSURANCE COS.,: : Insurance Carrier, : Defendants. : ____________________________________________________________ 1802 Where claimant had worked part time as a farmer and part time as a truck driver, it was held that the mere selling of some grain and performing light farm chores during the winter months did not constitute a return to work which terminated a healing period. Healing period was ended by the doctor's statement of maximum improvement. 1803 Thirty-four-year-old former truck driver and current farmer awarded 25 percent permanent partial disability based upon medical restrictions which eliminated him from truck driving. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MELINDA FRITZ, : : Claimant, : : vs. : : File No. 929055 HARKERS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE, : : Insurance Carrier, : Defendants. : ------------------------------ : MELINDA FRITZ, : : Claimant, : File No. 1010985 : vs. : A R B I T R A T I O N : HARKERS, INC., : D E C I S I O N : Self-Insured, : Employer, : Defendant. : ------------------------------------------------------------ STATEMENT OF THE CASE This decision concerns two proceedings in arbitration brought by Melinda Fritz against her former employer Harkers, Inc. File number 929055 deals with an admitted back injury of September 8, 1989. Claimant seeks compensation for permanent partial disability and payment of medical expenses. File number 1010985 deals with a disputed left shoulder injury of February 28, 1992. Claimant seeks compensation for healing period, permanent partial disability and payment of medical expenses. Claimant seeks to be paid mileage for two trips to Iowa City, Iowa. Claimant also seeks payment of expenses incurred in obtaining an independent medical examination from Jay J. Parsow, M.D., in the amount of $1430. This case was heard at Sioux City, Iowa, on November 19, 1993. The record consists of testimony from claimant; Philip Reinders; joint exhibits 1 through 4, 6, 7, 9, 10 Page 2 though 17, and 20 through 95; claimant's exhibits 96 through 100 and 102 through 107; and defendants' exhibit A. FINDINGS OF FACT Melinda Fritz is a 30-year-old woman who is a 1982 high school graduate. She characterized herself as an average student. She has no further formal education. Since leaving high school Melinda has worked as a cook in the kitchen of a nursing home. She sold shoes in the Cherokee, Iowa K-Mart store. There was an attempt to move her into a management position but the promotion did not work out for her and she left K-Mart. Melinda worked as a cook in the cafeteria of the Wilson Food plant. In September 1988 Melinda obtained employment with Harkers, Inc. She worked on a line packing meat into boxes. She worked on a three-person team in which one person assembled boxes while the other two packed patties into the boxes, weighed and then closed the boxes. The members of the team rotated positions every 15 minutes. The work involved repetitive activity at a relatively fast pace. Part of the time it was necessary to reach higher than shoulder level in order to obtain the boxes when packing meat. Melinda's past medical history is relatively unremarkable except for a few chiropractor visits in 1988. (exhibit 15). The records of that care indicate that claimant's neck, left shoulder and upper back were the principle sources of her complaints. Exhibit 103 seems to indicate that claimant was diagnosed with multiple sclerosis in June or July 1990. Despite a great amount of subsequent medical care and treatment there is nothing in the record of this case wherein any other physician suggests that she might have multiple sclerosis. Claimant denies ever being told that she had multiple sclerosis. This case has been fully and extensively litigated, no doubt at great expense to both parties. It would be expected that if there truly were a diagnosis of multiple sclerosis that it would have been investigated thoroughly and the results of that investigation entered into evidence. Some of the symptoms which claimant has described when seeing physicians would be consistent with multiple sclerosis. Nevertheless, a diagnosis of that magnitude cannot be made by the undersigned based upon the limited information found in exhibit 103. In view of the lack of a confirmed medical diagnosis it cannot be found that Melinda is afflicted with multiple sclerosis or that, even if she were, that it has any impact on the outcome of this case. In view of the many physicians who have seen her, the absence of any suggestion that multiple sclerosis is a possible source of her symptoms is a strong indication that it is not. It would be expected that it would have been raised by at least one of them if it were truly a potential source of her symptoms. Melinda was injured on September 8, 1989, when attempting to catch a tub of meat weighing approximately 75 pounds which slipped and was about to fall to the floor. Since that time she has had extensive physical therapy and care for her back. She complains of continuing discomfort and limitations regarding her back. Claimant went through a Page 4 course of conservative care. She was off work for a time, performed light duty work and was then placed back to full duty. She was off work for her back in the spring of 1990 and was sent to Iowa City, Iowa, for evaluation on two occasions. It is those two trips for which she seeks mileage. The transportation map of the state of Iowa published by the Iowa Department of Transportation shows the distance from Le Mars to Iowa City to be 303 miles each way. It is noted that claimant's home at Alton appears to be an equal distance from Iowa City. Accordingly, claimant would have traveled 1212 miles in attending those two appointments. The records of that evaluation, exhibits 27 through 30, show that claimant was treated for her back. Eventually, claimant resumed full duty at her employment and performed all the requirements of her employment until her left arm fracture. While claimant performed full duty work, she did so with pain. Over her course of care for her low back she received some relief with exercise and therapy but the relief was only temporary. It has been recommended by Anil K. Agarwal, M.D., that she restrict her activities which affect the back. He opined that she has a 2 percent permanent impairment due to her back injury. (ex. 92). Jay Parsow, M.D., evaluated claimant on September 13, 1993, only weeks after she was seen by Dr. Agarwal. Dr. Parsow provided a considerably higher rating of impairment and also recommended activity restrictions. (ex. 93). The primary treating physician for claimant's back condition has been J. Michael Donohue, M.D., an orthopedic surgeon who focuses his practice on spinal problems. Dr. Donohue has found no objective evidence of permanent impairment but has recommended activity restrictions based upon claimant's subjective complaints. (ex. 13, pp. 11-12). It is found that Melinda Fritz has no ratable permanent impairment under the AMA Guides to the Evaluation of Permanent Impairment. It is also found that her back injury did produce permanent symptoms which, in turn, have produced a need for permanent activity restrictions in accord with those recommended by Dr. Donohue. She therefore has a permanent injury and permanent disability affecting her low back, despite the fact that the nature of the condition does not result in a rating of impairment. Melinda was able to perform her work at Harkers despite her back condition. It would be expected that her access to employment would not be greatly affected by her back although there is some loss of access. On July 27, 1991, Melinda suffered a fracture of the left proximal humerus of her left arm. The fracture occurred while she closing a window at her parents' home. It occurred as a result of a tumor which had weakened the bone. Claimant was referred to Dr. Donohue who in turn referred her to Michael H. McGuire, M.D., a physician who has particular expertise in bone tumors. (ex. 13, pp. 10, Page 5 11 15, 16; ex. 36). Dr. McGuire eventually performed a graft in claimant's upper left arm which placed cadaver bone into the portion of the humerus affected by the cyst. (ex. 55). After a period of recuperation, Dr. McGuire examined claimant on November 15, 1991, and reported to Dr. Donohue that her shoulder was free from pain and that she had a full range of motion of the shoulder. (ex. 51). It should also be noted that in that report that claimant mentioned symptoms consistent with an ulnar nerve distribution problem affecting her right hand. Claimant resumed work. The records of all her work activities from the resumption of work in November 1991 until she left on February 28, 1992, are not in the record. Records of her work activity from January 6, 1992 through February 28, 1992, are in the record. (ex. 107). It is noted that she performed a variety of packing functions. It also appears that there tended to be a greater amount of the heavier boxes towards the end of the period. Commencing at approximately early February 1992 claimant developed a problem with her left shoulder. The problem progressed to the point that she left work on February 28, 1992. Her care was provided by Lynn A. Crosby, M.D., an orthopedic surgeon who has a particular focus on shoulder problems. (ex. 14, pp. 4-5). After diagnostic testing and arthroscopic surgery Dr. Crosby determined that claimant had inflammation of the biceps tendon in her shoulder and impingement in her left shoulder. He performed surgery in which he decompressed the impingement of the shoulder. (ex. 60). That surgery was performed on May 5, 1992. After a relatively uneventful period of recuperation, Dr. Crosby released claimant to resume part-time work effective July 2, 1992. She was to work part-time for three weeks and resume full-time work. (exs. 71 & 72). The employer would not make work available to the claimant. She was seen again by Dr. Crosby on July 29, 1992. (exs. 73 & 75). Claimant did not provide a statement from a physician before the end of September 1992 in order to extend her leave of absence with the employer. Her employment was terminated in early October 1992 (exs. 6, 7, & 9-12). Claimant applied for and received unemployment compensation. (ex. 96). There is a dispute between the physicians with regard to whether or not the claimant's employment from November 1991 through February 1992 was a substantial factor in producing the problems in claimant's left shoulder for which she underwent the surgery performed by Dr. Crosby. In making this determination, great weight is given to the fact that on November 15, 1991, claimant's shoulder was free from pain and exhibited a full range of motion. (ex. 51). Considerable weight is also given to the fact that Dr. Crosby's focus and high degree of expertise are shoulder problems. It is clearly superior to that of any of the other physicians in the record in this case. According to Philip Reinders the rack upon which boxes Page 6 are set is 50 inches from the floor. When a person removes a box from the rack a person would typically grasp the top of the side of the box closest to the person. This would place the hand a few inches higher than the top of the rack. If the boxes were stacked as was indicated is not uncommon, the height to which the person reached would be higher still. Simply stated, if the surface of the rack were 50 inches off the floor and boxes were eight inches high, the person would be reaching 58 inches if boxes were not stacked and 66 inches if they were stacked. The record shows claimant to be five feet eight inches tall. For such a person 58 inches would be at or above shoulder level and would present some risk for causing impingement. If the box was more than eight inches high at the point at which it was customarily grasped, the actual height to which the worker reached would be higher than 58 to 66 inches. The fact that the employer will allow an employee to use either arm to retrieve boxes or to use the dominant hand when packing is of little significance. Employees are required to keep up with a production line and will use whichever arm allows them to function most rapidly. The fact that risers were available does not mean that they were used. Claimant's appearance and demeanor were observed when she testified at hearing. She appeared to be a very credible and believable witness. She did not seem to be a whiner or complainer. Her testimony that she frequently reached overhead is certainly plausible and is found to be correct. On this issue it should be noted the cause of the shoulder impingement could be completely a result of the graft surgery or it could be a result of the work activity being superimposed upon a shoulder which was more susceptible to injury as a result of the graft surgery. The fact that the shoulder was symptom free when claimant resumed work and did not become symptomatic until she had been at work for a considerable amount of time tends to show that it is more likely than not that the work activities with the reaching above shoulder level played a part in causing the impingement to develop. It is found that the development of the impingement syndrome in claimant's left shoulder was an aggravation of a preexisting condition. It appears probable that the impingement would not have developed if claimant had not been performing repetitive work and reaching above shoulder level with her left arm. The assessment of Dr. Crosby is accepted and is found to be correct. He has the highest level of expertise in shoulder problems. Drs. Parsow and Agarwal were both retained for purposes of litigation. Drs. Crosby and Donohue were treating physicians. Dr. Crosby treated the shoulder while Dr. Donohue treated the back. Both of the treating physicians are found to be the most reliable as far as the parts of the claimant's body that they actively treated. Namely, the Page 7 assessment of the shoulder made by Dr. Crosby is accepted as being correct and the assessment of claimant's back made by Dr. Donohue is accepted as being correct. It is clear that Melinda has some disability affecting her left shoulder. The restrictions which have been recommended, however, appear to be the type of restrictions which would have been necessary in order to prevent the impingement syndrome from developing in the first place. It is clear that claimant did perform the reaching above shoulder level which has the propensity to cause the condition to develop. Impingement syndrome can have its onset in a relatively short amount of time. It does not necessarily require months or years of repetitive activity. The activities which claimant can currently perform with her left shoulder without causing additional injury are probably little different from what they would have been if she had not sustained the impingement injury. Her lack of range of motion appears to be more related to lack of use than to any inevitable result from her injury and the reparative surgery. When Melinda sought to return to work under Dr. Crosby's release the employer was not amenable. Apparently the employer has chosen to adopt a rule or policy which requires full capacity for individuals attempting to return to work from what it considers to be a nonoccupational injury or illness. Likewise, the employer for some reason has chosen to adopt a requirement for an authorized leave of absence in order to avoid termination of employment when it considers the injury or illness to be nonoccupational. The undersigned is not aware of any law or statute which requires an employer to have such policies. It is clear that if an employer refuses to allow an individual to return to work due to physical restrictions that resulted from an occupational injury and then terminates the worker's employment on account of unathorized absence, the termination of employment is proximately caused by the injury. It is a situation where the employer refuses to make work available to the injured employee as a result of the injury. The leave of absence request procedure is only a complication. If the employee had not been injured there would have been no reason for the employee to be off work. The chain of causation is clear and direct between the injury and termination of employment in this case. According to the claimant's testimony, the employer had positions in its work force which were compatible with her disability. Nothing appears in the record to explain why positions of that nature could not have been made available to the claimant in lieu of terminating her employment status. Claimant has worked extensively at resuming employment. Her success has been quite limited. She was evaluated at Hope Haven, Inc. Unfortunately, she demonstrates some weakness in the area of intellectual functioning. This is quite unfortunate for an individual whose physical capacity Page 8 has been diminished. It greatly limits her access to jobs. The two possible jobs of which she spoke at hearing are far from comparable in pay, benefits and working conditions to her job at Harkers. The loss of her employment at Harkers has had a large economic impact upon Melinda. It is much larger than the impact of her back injury. In preparing for this hearing claimant obtained an independent medical examination under the provisions of section 85.39 from Dr. Parsow. His charges, as shown on exhibit 97, are $1430. The statement is not itemized. There is no evidence that the charges have been paid. There is no other evidence in the record showing the amount charged to be reasonable. The undersigned is faced with either denying the entire amount of the charges or with assigning some reasonable amount under a quantum merit basis. It is clear that the services performed by Dr. Parsow are not valueless. Even though his assessment has not been accepted in this case, it cannot be said that it was totally worthless. To deny any allowance or recovery whatsoever would be unreasonable. The amount of charges for independent medical examinations is not an issue which is frequently litigated in this agency. A recent case, Wright v. Bridgestone-Firestone, file number 1023144 (February 5, 1993) allowed a fee of $600 as being reasonable. There was evidence that a reasonable charge would have been in the range of $350 to $400 for that examination. It is noted that in this case two injuries and two parts of the body are involved. It is found that a fee in the amount of $600 is the smallest amount that the undersigned would consider to be reasonable. While the full amount charged may certainly be reasonable, the burden of proof rests on the claimant. Page 9 CONCLUSIONS OF LAW Although there are two claims, the principles of law controlling the claims are similar. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational Page 10 disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. Aggravation of a preexisting condition is one manner of sustaining a compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). In file number 929055 the only issue is the one of permanent partial disability and its commencement date. It Page 11 is clear that claimant's back was not symptom free. She had been in treatment shortly before her arm fractured. Nevertheless, the restrictions from Dr. Donohue do not appear to be particularly onerous. It is determined that claimant has a 10 percent permanent partial disability of her back which resulted from the September 8, 1989 injury. Compensation for permanent partial disability is payable commencing at the end of the healing period. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). From the record it appears that claimant resumed work on or about October 16, 1989. Accordingly, the permanent partial disability compensation is payable commencing at that time. From October 16, 1989 through March 5, 1990, is a span of 20 1/7 weeks. It then appears that claimant's weekly compensation for healing period was reinstituted on or about March 6, 1990, and that she was paid weekly benefits until on or about June 2, 1990. Accordingly, the permanent partial disability compensation entitlement for the September 8, 1989 injury recommences effective June 3, 1990, and that the remaining 29 6/7 weeks are payable commencing on June 3, 1990. The fact that claimant was off work for a nonoccupational condition during part those 29 6/7 weeks does not eliminate or impair her entitlement to receive permanent partial disability compensation for the earlier work-related injury. In connection with her back injury, claimant traveled 1212 miles for receiving care the University of Iowa Hospitals at Iowa City. She has not been compensated for that mileage and is entitled to recover $254.52 for her transportation expenses under the provisions of section 85.27 and rule 343 IAC 8.1(2). Defendants offered no evidence that they have paid this mileage. It is well established that satisfaction of an obligation is a defense for which the burden of proof is on the party who would benefit from showing that the liability had been satisfied. Electra Ad Sign v. Cedar Rapids Truck Center, 316 N.W.2d 876 (Iowa 1982); Glenn v. Keedy, 248 Iowa 216, 80 N.W.2d 509 (1957). It has been found that the claimant's work activity following the graft surgery was a substantial factor in causing the impingement syndrome. It is likely that the graft surgery in some way predisposed claimant to develop the impingement syndrome but the greater weight of the evidence indicates that the shoulder was symptom free prior to claimant engaging in the work. It would be speculative to somehow surmise the impingement would have developed if claimant had not engaged in the repetitive work which involved reaching above her shoulder level. Claimant has carried the burden of proof of showing that it is probable that the work was a substantial factor in producing the impingement syndrome injury. Accordingly, she has proven proximate cause. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, Page 12 physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Since defendants are liable for the shoulder injury in the sense of the impingement syndrome they are likewise liable for the expenses associated with the surgery performed by Dr. Crosby and for payment of healing period compensation associated with that surgery. The medical expenses as set forth in exhibits 98, 99, 100, 102, 103, 104, 105, and 106 are as follows: St. Joseph Hospital $7,642.91 Anesthesia Services Medical Group 360.00 Hera Kinetics 2,045.00 Sioux City Radiological Group, P.C 214.00 Floyd Valley Hospital 26.50 Creighton University 565.22 Total $10,853.63 Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel, 394 N.W.2d 405. Claimant's healing period for file number 1010985, the shoulder injury, commences on the date of injury, February 28, 1992, and runs through July 29, 1992, when she was last seen by Dr. Crosby. It is noted that she was not released to unrestricted work and did not return to work as a result of the July 2, 1992 release. July 29, 1992, is found to be the date at which maximum medical improvement occurred. This is a span of 21 6/7 weeks. With regard to the shoulder injury the evidence does not show any restrictions upon claimant's activities which would not have been prudent to follow in order to have avoided the development of the impingement syndrome. The extent of functional permanent disability which has resulted from the development of the impingement syndrome is quite small in that regard. Nevertheless, it was sufficiently large for this employer to determine that it had no place for Melinda Fritz in its work force. There was no law which required the employer to terminate her employment and it could have placed her in its work force if it had chosen to do so. An employer's apparent determination that an Page 13 individual is too disable to have a place in its work force is entitled to a great deal of credibility since it is evidence that the degree of disability is considerable. 2 Larson Workmen's Compensation Law, 67.61. An employer's refusal to give any sort of work after a claimant suffers an injury may justify an award of disability and, similarly, the claimant's inability to find other suitable work after making bona fide efforts may indicate that relief should be granted. McSpadden, 288 N.W.2d 181. The claimant's failure to request and obtain a doctor's statement for a leave of absence does not break the chain of causation between the injury and termination of employment. In fact, since the healing period was ended on July 29, 1992, there was no basis for a doctor to issue another statement indicating that she was disabled from work. In fact, it likely would have been improper and inaccurate for the doctor to have done so. There is no reason to believe that any release issued subsequent to July 2, 1992, would have been any different than the release of July 2, 1992. Defendants could have chosen to place claimant into a work hardening program which would have provided essentially the same exposure as claimant's work within the restrictions recommended by Dr. Crosby. For some unknown reason they chose to terminate her employment. Claimant has made a bona fide effort to resume employment and in fact appeared about to enter into some sort of employment at the time of the hearing. It appears, however, that her actual earnings will be only a small fraction of what she earned with Harkers. When all the pertinent factors of industrial disability are considered, it is determined that Melinda Fritz sustained a 30 percent permanent partial disability as a result of her left shoulder injury. This entitles her to recover 150 weeks of permanent partial disability compensation. That compensation is payable commencing July 30, 1992. Dr. Parsow's independent medical examination applies to both files. The $600 fee previously found to be reasonable should be allocated one-half to each of the two files in this case, namely, $300 to each. As previously indicated, there is some value to his services. Agency expertise may be relied upon to provide an indication of the range of fees customarily charged for similar services. Section 17A.14(5). Despite the fact that claimant carries the burden of proving the reasonableness of the amount charged, it is clearly unreasonable to determine that an absence of direct evidence on that issue requires a finding that these services had no value whatsoever. The more correct approach is to allow an amount which would be within the lower range of that commonly seen in other cases. That amount is determined to be $600 in this case. ORDER IT IS THEREFORE ORDERED that in file 929055 defendants pay Melinda Fritz fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of one Page 14 hundred seventy-eight and 65/100 dollars ($178.65) per week with twenty and one-sevenths (20 1/7) weeks thereof payable commencing October 16, 1989, and with the remaining twenty-nine and six-sevenths (29 6/7) weeks thereof commencing June 3, 1990. It is further ordered that in file number 929055 defendants pay claimant two hundred fifty-four and 52/100 dollars ($254.52) for transportation expenses and three hundred dollars ($300) towards the cost of her independent medical examination. It is further ordered that in file number 1010985 defendants pay Melinda Fritz twenty-one and six-sevenths (21 6/7) weeks of compensation for healing period at the stipulated rate of one hundred eighty-two and 96/100 dollars ($182.96) per week payable commencing February 28, 1992. It is further ordered that in file 1010985 that defendants pay Melinda Fritz one hundred fifty (150) weeks of compensation for permanent partial disability at the stipulated rate of one hundred eighty-two and 96/100 dollars ($182.96) per week payable commencing July 30, 1992. Page 15 It is further ordered that in file number 1010985 defendants pay claimant's medical expenses as follows: St. Joseph Hospital $7,642.91 Anesthesia Services Medical Group 360.00 Hera Kinetics 2,045.00 Sioux City Radiological Group, P. 214.00 Floyd Valley Hospital 26.50 Creighton University 565.22 Total $10,853.63 It is further ordered that in file number 1010985 defendants pay Melinda Fritz three hundred dollars ($300) towards that cost of her independent medical examination. It is further ordered that all amounts of weekly compensation ordered in this decision which are accrued shall be paid to claimant in a lump sum together with interest pursuant to 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 February, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Mr. Dennis McElwain Attorneys at Law 632-40 Badgerow Bldg PO Box 1194 Sioux City, Iowa 51102 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St, STE 200 PO Box 3086 Sioux City, Iowa 51102 1803 1402.30 1402.20 1807 52206 2207 3700 2502 Filed February 23, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MELINDA FRITZ, Claimant, vs. File No. 929055 HARKERS, INC., A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE, Insurance Carrier, Defendants. ------------------------------ MELINDA FRITZ, Claimant, File No. 1010985 vs. A R B I T R A T I O N HARKERS, INC., D E C I S I O N Self-Insured, Employer, Defendant. ------------------------------------------------------------ 1803 For back injury which produced no ratable permanent impairment, but activity restrictions, claimant was awarded 10 percent permanent partial disability. For a shoulder impingement syndrome injury which produced little, if any, in the way of permanent impairment, but which caused the employer to terminate claimant's employment, despite the fact that it appeared to have suitable work available in its work force, claimant awarded 30 percent permanent partial disability. Failure to re-employ when an employer has the ability to do so, held to be evidence of a high degree of disability. The employer's procedure of terminating the Page 2 employment due to the claimant's failure to obtain a leave of absence was held to not break the chain of causation between the injury and the termination of employment. Defendants had refused to allow claimant to return to work under the restrictions imposed by her physician. 1402.20 1402.30 Where the physicians were in disagreement and the fact that the claimant was symptom free prior to performing the allegedly offending work activities was combined with a high level of shoulder expertise of her treating surgeon for the shoulder condition was accepted as being the correct assessment of the shoulder over that of the physician who treated her back. The orthopedic surgeon who treated her back was accepted as being correct in assessing the back condition. 1807 2207 It was held proper to pay permanent partial disability at a time when the employee was off work for a separate nonoccupational condition. 52206 Claimant had a cyst in the humerus. It was treated with a graft. When she returned to work following that graft surgery she developed impingement syndrome. It was held that she had sustained an injury in the nature of an aggravation with a preexisting condition caused by the cyst and graft. 3700 2502 Independent medical examination charged $1430. Claimant allowed to recover $600 on a quantum merit theory pursuant to 17A.14(5). The record had no direct evidence regarding the reasonableness of the charge.