BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAMES HAWKS, Claimant, File No. 932117 vs. A P P E A L SHELLER-GLOBE CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 26, 1992 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Although Dr. Austin could not predict how long claimant's chemical or environmental sensitivity would persist, he clearly indicated that claimant's reactive airways disease was permanent. Claimant might be asymptomatic at a point in time but that does not mean that the reactive airways disease is gone. It was Dr. Austin's opinion that the rotocast powder or something physically in the air when the rotocast machine is working that caused claimant's reactive airways disease. (Exhibit 20, pages 14, 17, 21 and 26) That defendant shall pay the costs of this matter including transcription of the hearing and shall reimburse claimant for the filing fee if previously paid by claimant. Signed and filed this ____ day of July, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1087 Keokuk, Iowa 52632 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 1108.30; 1803 Filed July 15, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES HAWKS, Claimant, File No. 932117 vs. A P P E A L SHELLER-GLOBE CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 1108.30 Claimant's reactive airway disease found to arise out of and in the course of employment. Residual of sensitivity on reexposure to airway irritants found causally related to original injury. 1803 Forty-seven-year-old claimant, with no impairment rating; with management and entrepreneurial skills; who is currently self-employed in his own business; who was able to continue working for the employer, albeit in a different job not involving irritant exposure, until the plant closed; and, whose only restriction is to avoid exposure to any airway irritants to which he is sensitive, was awarded five percent permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES HAWKS, : : Claimant, : File No. 932117 : vs. : A R B I T R A T I O N : SHELLER-GLOBE CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by the claimant, James Hawks, against his self-insured employer, Sheller-Globe Corporation, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury allegedly sustained on February 20, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Burlington, Iowa, on February 14, 1992. A first report of injury has been filed. The record consists of the testimony of claimant as well as claimant's exhibits 1 through 11 and 13 and defendant's exhibits A and B. issues Pursuant to the hearing assignment order, the prehearing report and the oral stipulation of the parties, the parties have stipulated to the following: that claimant was off work from July 25, 1989, through July 28, 1989, and from January 2, 1990, through January 6, 1990; that the commencement date for any permanent partial disability benefits due claimant is January 7, 1990; that charges for medical treatment for claimant were fair and reasonable charges; that claimant was single, entitled to one exemption and had a gross weekly wage of $430.00 at the time of the alleged injury entitling claimant to weekly compensation at a rate of $255.22, as reflected in the applicable rate table. It is noted this figure is less than the $257.01 rate the parties suggested. Page 2 Issues remaining to be decided are: 1. Whether claimant received an injury which arose out of and in the course of claimant's employment; 2. Whether a causal relationship exists between claimant's alleged injury and claimed disability; 3. Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement; and, 4. Whether claimant is entitled to payment of certain medical costs as authorized by defendant and as causally related to claimant's work injury. findings of fact The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 47-year-old gentleman who has completed high school and has had technical school training in computer repair. Claimant has also taken a locksmith repair course. Claimant worked for Sheller-Globe from December 5, 1988, through July 1991 when the automotive technologies portion of the Sheller-Globe facility closed. Claimant is currently self-employed in his own print shop. Claimant began that business approximately a year and one-half ago, that is, prior to the closing of the automotive technologies division. Claimant's color photocopy business reproduces color copies, applies custom imprinting to fabrics, does desk top publishing and computer graphics, makes keys and offers lock repair. Claimant is not exposed to chemicals to which he is reactive in that business. Claimant had an extensive work history prior to beginning work with Sheller-Globe. Claimant has been a factory worker, a life insurance seller, an escrow collection department manager, a restaurant manager, a restaurant franchise owner, a home repairer, a computer portrait business owner, and an emergency medical technician with an ambulance service. Claimant is a nonsmoker and had no history of bronchial problems when he began work with Sheller-Globe on December 5, 1988. Claimant initially glued strips for the employer and felt no immediate ill effects from the glue. As part of the process, claimant dipped the ends of strips in cans containing Toluene, a lubricant. On February 20, 1989, while performing that job, claimant had a violent coughing spell. Claimant saw Ronald Kinateder, M.D., on February 21, 1989. Dr. Kinateder advised that claimant be restricted from working in areas containing Toluene. Claimant was returned to work areas containing Toluene and given a dust mask. A dusk mask is effective against airborne particles, but is ineffective in keeping out fumes. Page 3 Dr. Kinateder subsequently referred claimant to Milton F. Austin, M.D., an internist. Per Dr. Austin, claimant was admitted to Keokuk hospital on July 26, 1989, with acute gastrointestinal bleeding due to a one centimeter gastric ulcer and for chronic cough. Claimant continued to treat with Dr. Austin subsequent to his hospitalization and, on January 2, 1990, claimant was again hospitalized after claimant had started coughing while painting with latex paint at home. Dr. Austin has diagnosed claimant's condition as obstructive airway disease or occupational asthma. Sometime subsequent to the receipt of Dr. Kinateder's restrictions, claimant was moved to the "padded side" or automotive technologies division of the plant. Claimant was not there exposed to Toluene, but reported that his coughing was triggered again in July 1989 by something in the rotocast department. Claimant self-reported a loss of smell. Medical reports do not confirm this and causal relationship between that alleged condition and claimant's employment is not found. Claimant was making $12.00 per hour when the automotive technologies division closed. Claimant expressed a fear of returning to factory work in that he fears chemical exposure in such environments would be problematic in ways that exposure was not problematic prior to his Sheller-Globe employment. He was offered a job as a welding apprentice which he did not accept as he felt the job would expose him to harmful fumes. Claimant reported he did not apply for work in a local corn processing plant for a similar reason. Claimant's self-employment also likely influenced his decision not to seek other outside employment after his layoff, however. Claimant first saw Dr. Austin on June 13, 1989, with complaints of fullness in the right chest with decreased lung capacity and increased shortness of breath with activity and complaints of tender raised nodular lesions on the legs and face occurring with the chest pain. On June 20, 1989, Dr. Austin opined that claimant's chest discomfort was the result of obstructive lung disease and bronchial spasm, that is, mild asthma triggered by claimant's new job of working with powder containing a plastic resin. Dr. Austin reported that claimant experienced more right side difficulty in that claimant had had a prior right lung resection as a child. On June 27, 1989, Dr. Austin opined that exposure to chemicals contained in the rotocast powder would continue to exacerbate claimant's asthma. Pulmonary function tests completed at the Keokuk Area Hospital on June 14, 1989, were compatible with minimal small airway obstructive disease with some degree of reversibility. Diffusion capacity was mildly diminished, but the tests were otherwise relatively normal. Dr. Austin's notes reflect that a bronchoscopy on August 11, 1989, confirmed that claimant had irritated Page 4 tracheobronchial mucosa consistent with occupational asthma. Notes report that claimant, on August 16, 1989, was working with rotocast powder and fumes and again was experiencing severe coughing and asthma. A note of September 26, 1989, indicates claimant's asthma subsided after claimant was transferred from work involving rotocast powder. Dr. Austin has opined that claimant's problems resulted from exposure to rotocast powder or "something physically in the air" when claimant worked with rotocast powder. He further opined that it was therefore extremely likely that any inhaled agent which produces coughing or a subjective sense of irritation for claimant would provoke bronchial spasm in claimant and that claimant's reactive airway disease likely will persist in that reexposure to the chemical compounds that initiated it or exposure to other environments that irritate his airways will probably trigger his reactive airway disease. Dr. Austin "assumed" that, if adequate testing were done, claimant would be found to have some degree of impairment now given his degree of physical inflammation [related to his reactive airway disease]. Thomas E. Hakes, M.D., an internist, evaluated claimant on consultation during a July 1989 hospitalization. Dr. Hakes opined that claimant's problem related to simple irritation of the upper airway and may have been triggered by dust at work. He further stated that the problem was now feeding upon itself in a vicious cycle. Leonard D. Grayson, M.D., evaluated claimant through pulmonary function studies completed before, immediately subsequent to and then 20 minutes subsequent to inhalation of Toluene and heated rotocast powder. Claimant's FEV1 dropped after the Toluene inhalation, but recovered within 20 minutes. Claimant's FEV1 was not affected by rotocast powder inhalation. Claimant's FEF25-72 showed a definite drop after Toluene inhalation with recovery 20 minutes later and again no effect from rotocast powder. Dr. Grayson opined that, given such findings, the rotocast powder was not playing a part in claimant's problems, while inhalation of Toluene or similar fumes would likely cause claimant problems. Material safety data sheets indicate that inhalation of Toluene at high vapor concentrations can irritate the eyes and respiratory tract. Toluene is a negligible hazard at ambient temperatures, but mechanical dilution and ventilation is recommended where the product is used in a confined space; is heated above ambient temperatures; or is agitated. It is expressly found that dipping a strip of material into Toluene would agitate or stir up the Toluene. The safety data sheet on rotocast vinyl powder recommends that self-containing breathing apparatus and full protection clothing be used when working with the powder. It states that exposure to the dust may cause irritation of the skin and mucous membranes although, under normal usage, it is suitable for nuisance dust (apparently with Page 5 respiratory protection). It is expressly found that claimant did develop Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). For reasons stated in the above Findings of Fact, claimant has carried his burden of proving that he suffered an injury by way of development of obstructive airway disease or occupational asthma subsequent to his exposures to Toluene and rotocast powder while working for the employer. Our next concern is whether claimant has shown a causal relationship between the injury and claimed disability. 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 Page 6 Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Claimant has clearly established a causal relationship between the injury and claimed temporary disability related to his two hospitalizations. The medical records clearly establish that claimant was treating for obstructive lung disease up to and including the time of his hospitalization in July 1989. That claimant's July 1989 hospitalization also related to a gastric ulcer does not diminish its relationship to the chronic cough which Dr. Hakes related to upper airway disease. Claimant is entitled to healing period benefits for the time off on account of that hospitalization, that is, July 25, 1989, through July 28, 1989. Likewise, claimant has established the requisite causal connection between his work injury and claimed disability related to his second hospitalization beginning January 2, 1990. While claimant's reaction then started after coughing while working with latex paint at home, the reaction to the latex paint fumes was consistent with the pattern of reaction which Dr. Austin opines the initial work exposure created. Additionally, it is inconsistent with any known medical history of claimant prior to the work exposure. Such places that reaction within the sequela of events flowing from the work injury. Claimant is entitled to healing period benefits from January 2, 1990, through January 6, 1990. A more difficult question exists as to whether claimant has shown a causal relationship between his injury and claimed permanent disability. Dr. Austin, however, has opined that it is likely that claimant's reactive airway disease will persist in that reexposure to the chemical compounds that initiated it will likely trigger further lung disease. Dr. Hakes has characterized claimant's problem as part of a vicious cycle which may have been set off by claimant's work exposure. Claimant's medical history is consistent with any permanent problems having their basis in his work exposure. Given such, claimant has established the requisite causal relationship between his work injury and claimed permanent disability with such claimed permanent disability found to be likely continued problems with reactive airway disease should claimant be reexposed to the chemical compounds that initiated the disease or other airway irritants to which claimant is now sensitized. It is expressly found that claimant has not established any causal relationship between his work injury and his gastric ulcer. The only evidence relative to any such relationship is Dr. Austin's testimony that claimant was under stress at work at the time he developed the gastric ulcer. Such, without more, is found to be insufficient to establish a causal relationship between claimant's work injury and his subsequent ulcer. We consider the question of whether claimant is entitled to payment of medical costs in evidence. Page 7 Section 85.27 provides that defendant shall pay reasonable and necessary medical expenses related to claimant's work injury. Defendant initially argues that defendant did not authorize claimant's medical care or expenses and that the lack of authorization bars any recovery for those expenses. Defendant has denied liability for claimant's injury. Defendant, in denying liability, lost the right to control claimant's care and therefore the nonauthorization argument is not viable. Claimant is clearly entitled to payment of his medical expenses related to treatment of his obstructive airway disease. He is clearly not entitled to payment of those medical expenses related to treatment of his gastric ulcer. Unfortunately, claimant has not provided an itemized list of medical expenses. Therefore, it is impossible to order payment as to express items listed as medical expenses. Defendant is liable for those expenses directly related to claimant's obstructive airway disease, however. We reach the question of claimant's entitlement to permanent partial disability benefits. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. As noted, claimant has been given no impairment rating. His only limitation is that he should avoid reexposure to the chemicals which initially caused his problems and other airway irritants which cause him problems. These restrictions do not appear to cause claimant significant problems in daily living, although they might well impact on the activities in which claimant could engage in an industrial setting. Fortunately, claimant appears highly Page 8 qualified for a variety of positions outside of an industrial setting. Likewise, he appears to have some capacity to work within industrial settings provided he is not exposed to likely airway irritants. That capacity was demonstrated by his ability to continue working at Sheller-Globe, albeit in a different plant division, after his exposure until that division's closing. There is little testimony in the record as to claimant's earnings at the time of his transfer to the padded division as opposed to his earnings at the time of the plant closure. Such would be the best evidence of any actual loss of earnings related to claimant's exposure and his restrictions on industrial areas where he can work. Without such, it is difficult to attribute any actual loss of earnings to claimant's chemical exposure in that he was able to remain employed with the employer subsequent to the development of his work-related condition. Claimant appears motivated to work and as noted has considerable experience which will likely permit him to work in a variety of settings which do not involve the type of chemical exposure to which he is now sensitized. Indeed, claimant apparently is able to work without undue problems in his own business and that business appears consistent with claimant's overall experience, education and entrepreneurial skills as demonstrated by his work history prior to being employed by Sheller-Globe. When all of the above is considered, it is determined that claimant has sustained a loss of earning capacity of five percent. order THEREFORE, IT IS ORDERED: Defendant pay claimant permanent partial disability benefits for twenty-five (25) weeks at the rate of two hundred fifty-five and 22/100 dollars ($255.22) per week with payments to commence on January 7, 1990. Defendant pay claimant healing period benefits at the rate of two hundred fifty-five and 22/100 dollars ($255.22) per week from July 25, 1989, through July 28, 1989, and from January 2, 1990, through January 6, 1990. Defendant pay accrued amounts in a lump sum. Defendant pay interest pursuant to Iowa Code section 85.30. Defendant pay claimant claimant's medical expenses which relate to his work-related obstructive airway disease. Defendant pay costs pursuant to rule 343 IAC 4.33. Defendant file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. Page 9 ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Page 10 Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1087 Keokuk, Iowa 52632 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 1108.30; 1803 Filed March 26, 1992 HELENJEAN M. WALLESER before the iowa industrial commissioner ____________________________________________________________ : JAMES HAWKS, : : Claimant, : File No. 932117 : vs. : A R B I T R A T I O N : SHELLER-GLOBE CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1108.30 Claimant's reactive airway disease found to arise out of and in the course of employment. Residual of sensitivity on reexposure to airway irritants found causally related to original injury. 1803 Forty-seven-year-old claimant, with no impairment rating; with management and entrepreneurial skills; who is currently self-employed in his own business; who was able to continue working for the employer, albeit in a different job not involving irritant exposure, until the plant closed; and, whose only restriction is to avoid exposure to any airway irritants to which he is sensitive, was awarded five percent permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EILEEN M. OLSON, File No. 932283 Claimant, A R B I T R A T I O N vs. D E C I S I O N WHITE CONSOLIDATED INDUSTRIES, INC., Employer, Self-Insured, Defendant. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Eileen M. Olson, against her employer, White Consolidated Industries, Inc., self-insured employer, defendant. The case was heard on April 13, 1994 at the Webster County courthouse in Fort Dodge, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of claimant's spouse, Terry Olson, and the testimony of Kathy Warren, Workers' Compensation Administrator. Finally, the record is comprised of joint exhibits 1-23. STATEMENT OF THE ISSUES The sole issue for determination is the nature and extent of claimant's permanent partial disability. STATEMENT OF THE FACTS The deputy, having heard the testimony and considered all the evidence, finds: Claimant is married with four minor children. She is a 1977 graduate of Fort Dodge High School. Claimant commenced her employment with the present defendant on March 28, 1988. She was hired as an assembly worker. Defendant is engaged in the business of manufacturing washers and dryers. Initially, claimant was hired to place a wire onto the base of the dryer drum. She was engaged in those duties for the first six months of her employment. Claimant described the work as "not heavy labor." Next, claimant was assigned to assemble front panels. The process required repetitive motions of claimant's thumbs and fingers. There were repeated motions using fine motor coordination. Claimant testified she performed the same process as many as 600 times per evening shift. She performed the same job for approximately one and one half years without any difficulties. Then the process was modified and claimant was required to use both her right and left hands. Claimant explained, during the hearing, that her right hand began to ache. She experienced some night pain. She described her pain as "a dull ache." Claimant visited the plant nurse who dispensed over-the-counter Advil to claimant. On October 5, 1989, claimant sought treatment from Joseph X. Latella, D.O. His office note provided the following relative to claimant's condition: Pushing motion at work. The hand and thumb, right side are numb. Tinel's (+), Phelan's (-), R.O.M. (+). Works on dryer line and problem with pain for one month. Reported this type of injury one months [sic] ago. Nalfon, B-6. Treatment: 1. Posterior gauntlet, 2. B-6, T.I.D., 3. No pushing motion with hand, 4. No air gun. Right hand has pain when gautlet [sic] is taken off. Now left hand hurting. Mid forearm down to wrist. Was lifting black cards and pushing some cards onto dryer. Some pain now. To give off 2 days and re-evaluate. Good R.O.M. but tendonitis, S/S starting. No Phelen's [sic] or Tinel's. (Exhibit 1-1, 1-2) Dr. Latella continued to provide conservative care. Claimant was evaluated by Michael J. Kitchell, M.D., after an EMG was performed. The neurologist opined: On examination Eileen was a healthy appearing, alert woman with a blood pressure of 122/84. Her pulse rate was 78. Her HEENT exam was unremarkable. She did have a Tinel's sign over the carpal tunnel areas bilaterally. There was no atrophy or deformity in the muscle groups of the hand, however. Her neurologic examination revealed the reflexes to be 2+ in the upper extremities. Her motor examination revealed no weakness in the left arm, but she did have mild weakness of the opponens pollicis and abductor pollicis brevis muscles in the right hand. Her sensory examination revealed a diminution to pin prick in the median nerve distribution of both hands. Her vibratory sensation though was normal. Her nerve conduction velocity testing showed the left median motor and left median sensory values to be slightly slowed across the carpal tunnel. The terminal latency for the left wrist was 4.2 milliseconds. On the right her median sensory and median motor values were slightly slower than on the left. The terminal latency was slightly more delayed also at 4.3 milliseconds. My impression, therefore, is that Mrs. Olson does have a mild bilateral carpal tunnel syndrome, slightly worse on the right than the left. She will be checking back with you for further advice on treatment. In the meantime, I have recommended that she continue with the wrist splints and medication. (Ex. 2-1, 2-2) Claimant underwent a right carpal tunnel release in November of 1989. Surgery for a median nerve entrapment was also performed. She progressed reasonably well following the surgery. Next, she underwent a left carpal tunnel release in January of 1990. She did not recover as well from the second surgery. Claimant experienced continued difficulties with her left wrist. Approximately two months later, claimant returned to Dr. Kitchell for a follow-up appointment. He opined the following in his report of February 27, 1990: On examination Eileen had a blood pressure of 112/70. Her pulse rate was 82. Her extremity examination revealed well-healed carpal tunnel surgical scars. There was a Tinel's sign over the left carpal tunnel region. Her neurologic examination revealed the reflexes to be normal and strength was normal in the right hand, but on the left she had mild weakness of the opponens pollicis and abductor pollicis brevis muscles. There was some break-away weakness also in other muscle groups of the hand. Her sensory examination revealed a diminution of pin prick in the median nerve distribution of the left hand. Her nerve conduction velocity testing showed the left median motor nerve conduction to be borderline slowed from wrist to palm. The terminal latency was barely within normal limits at 4.1 milliseconds, whereas 4.2 milliseconds or below is considered the normal range. Her left median sensory nerve conduction velocity also showed a slight slowing from wrist to palm at 40 meters per second, whereas the normal value is 44 meters per second or above. I did check 1 centimeter segments of the nerve in the carpal tunnel with the electrical stimulator, to see if there was any localizable slowing present. There was no definite area of significant delay or slowing. In comparison to her study of November, 1989, she had virtually no difference in the values. My impression, therefore, is that Eileen still has a mid left carpal tunnel syndrome. It may be worth while waiting a little longer, but she might want to consider carpal tunnel release surgery again if her symptoms continue. As I mentioned above, though, I could not localize any one area where there was a significant delay in the carpal tunnel region. (Ex. 3-1, 3-2) Since claimant had persistent pain in her left hand and wrist, she sought another medical opinion. Scott Neff, D.O., opined in the subsequent opinion: Repeat EMG study is still abnormal. She has some tenderness in the palm, and she has been told that this is inflammatory changes. Her EMG remains abnormal. Her hand goes to sleep and has the typical symptoms of carpal tunnel, and the Phalen's maneuver is positive at about 45 seconds. I do not detect a neuroma over the palmocutaneous branch of the median nerve proximal to the wrist crease, but there is a neuromatous change in the palm. Her thenar motor function is normal, and she has relatively weak grip. She has now been approximately 5 months from surgery, and she says that her other side is functioning beautifully, and was immediately better after surgery. The left side is still painful, gives her difficulty at night, and causes weakness and loss of grip. The sensation changes are still present. Although I don't know whether she has a recurrent scar, or what is going on in the wrist, I believe that decompression of the left carpal tunnel is warranted. (Ex. 5-1) Dr. Neff then performed another carpal tunnel release on claimant's left wrist. This second surgery occurred in June of 1990. Several months later, Dr. Neff opined the following with respect to claimant's return to work: This patient was last seen by me on 23 July 1990. Revision carpal tunnel surgery puts her at risk of scaring and I would not recommend that she be exposed to repetitive flexion and extension of the wrist, vibration or repetitious hand motions. Her surgery was performed on 05 June 1990, and we will not know for several months whether or not her nerve will heel [sic] normally. (Ex. 5-2) Dr. Neff also restricted claimant from lifting five pounds or less, and she was to refrain from any overhead work (Ex. 5-3). Despite the work restrictions, Dr. Neff opined that claimant did not sustain any permanent impairment because of her work injury (Ex. 21-1). In June of 1991, Dr. Neff determined: Persistence of restricted activity is warranted and it might be reasonable to have her go back to a job where she has automated capability for bag opening. Repeat surgery is not indicated. I appreciate the opportunity of seeing her, and I certainly agree with nonsteroidal anti-inflammatory medication treatment on a prn basis. I would support continued use of the wrist splint as she is currently doing at work. (Ex. 5-5) Claimant sought an additional medical opinion from David D. Gerbracht, M.D., a rheumatologist. He would not provide an impairment rating for claimant's condition because: I am in no position to render an opinion on permanent work disability since I only saw her once and she appeared to be handling the duties that were presently expected of her at work without any significant discomfort. I do not routinely render work disability evaluations, and if you are interested in such, I would recommend referring her to an orthopedic surgeon who does so. (Ex. 17-1) In February of 1993, claimant was again examined and evaluated by Dr. Kitchell. The neurologist noted: Her examination today again showed well-healed carpal tunnel surgical scars bilaterally. There was a nodule at the right wrist, just on the radial side of the scar, and she had a Tinel's sign present over the carpal tunnel area also. She had restriction of range of motion of the thumb, including both the opposition, as well as flexion of the thumb. She did not have any other restriction of her finger movements. Her examination showed fairly good strength in the right hand except for opposition of her thumb against the index and middle fingers. I felt her abductor pollicis brevis muscle was fairly strong, and there were no other muscles that were weak with individual testing in the right hand. She had normal reflexes again in her upper extremities. It remains my impression that Mrs. Olson most likely has a tendonitis involving the flexors and opposition of the right thumb. I did recommend a rheumatologic consultation for her. (Ex. 19-1) In his deposition, Dr. Kitchell testified regarding claimant's physical condition: He opined: Q. Did you find anything to support impairment? A. I found no neurologic impairment. I did feel that she had some restriction of range of motion of the thumb movement which would lead to what I would consider orthopedic impairment. I don't feel as though I'm an expert, though, on determining orthopedic impairment. (Ex. 22-16) Dr. Kitchell did acknowledge that claimant was experiencing some difficulties with her right upper extremity (Ex. 22-17). Dr. Kitchell did testify that: A. I would consider the surgery to have been successful. I do feel that she still has some minor symptoms that we could consider to be due to a carpal tunnel syndrome, but there is no media nerve damage. The symptoms that she still has that I believe are related to a carpal tunnel syndrome are those of a slight numbness if she keeps her hand in a bent position, but she was wearing the wrist splint, and she found that helpful at preventing those types of symptoms, so if you ask was the surgery a complete 100 percent total success, I would not say that it was a perfect result, but then again, I don't feel that there is any significant media nerve damage, so even though I might not consider the result from her surgery to be perfect, there is no impairment due to the media nerve injury. (Ex. 22-17) However, Dr. Kitchell attributed claimant's problem to a form of tendonitis. Dr. Kitchell testified: A. Yes, it was my feeling -- it was my impression that those type of symptoms -- after I had examined her, it was my feeling that those type of symptoms were related to musculoskeletal problems of tendonitis. Q. A tendonitis? A. Yes. Q. And what is a tendonitis? A. A tendonitis is an inflammation along the tendons that go from the forearm down into the fingers. Q. In other words, the tendonitis would have had --would the tendonitis have had any relationship to the carpal tunnel syndrome? A. Tendonitis and carpal tunnel syndrome are actually two different diagnoses, but they often occur in patients because they are both related to activity, so a carpal tunnel syndrome is a nerve injury. A tendonitis is due to movement or activity of certain tendons, in her case, the tendons that go to the thumb. Q. And this is an inflammation? A. Yes, it may be related to excessive activity, or it may be due, just as I said, to an idiopathic, unknown type of inflammation that occurred in that particular area. Q. What was your impression as to whether or not this tendonitis was, in fact, related to the scar from her surgery? A. I felt that it was possible that the scar from the surgery has some indirect relationship to the tendonitis, but I felt it was probably more likely that the tendonitis was either related to activity or due to an idiopathic condition where there was inflammation in the sheath or the condition of the tendons that go to the thumb. (Ex. 22-18 through 22-20) Claimant desired an independent medical examination from a physician of her own choosing. As a consequence, claimant's attorney referred claimant to David Archer, M.D., a family practitioner who specializes in disability determinations, using the AMA Guides to the Evaluation of Permanent Impairment. Dr. Archer provided written reports and he testified by deposition. In his report of July 10, 1992, Dr. Archer opined: Her general physical examination was basically within normal limits, and I will not relate all the details here. However, her physical exam is notable for limitation in flexion, aduction [sic] and opposition of the thumbs on both the right and the left hands, which are important movements for dexterity. These limitations in motion appear to be due to her surgical scars. The worksheets are enclosed for detail. Restriction numbers translate into a 3% upper extremity impairment on the left, and 5% on the right, in addition to 30% right upper extremity impairment for minor causalgia and failed surgery for median nerve entrapment. This entrapment involves the region of the surgical scar with referred pain proximally into the muscles of the forearm rather than distally, and is therefore a distinct finding from tendonous range of motion limitation. Her strength is average using a Jaymar dynamometer. She gave a good effort and is valid. No impairment is assigned for loss of strength. In addition, there was no vascular impairment. Range of motion impairment is static and permanent, but I would like to point out that no specific treatment for her causalgia has been undertaken. It is, therefore, possible that with evaluation by a neurologist or pain clinic specialist, that some remission of these symptoms could be obtained. I have seen Miss Olson once for the purpose of this evaluation, and have not provided treatment. However, I believe some treatment may be available, and would be happy to discuss treatment with her or make appropriate referral... (Ex. 23 - Deposition Ex. 1) Later, Dr. Archer modified his original opinion. In his report of October 4, 1993, Dr. Archer corrected his original impairment rating. He opined: I appear to have made an arithmatic error and combined upper extremity impairment of the right wrist with the range of motion numbers, and incorrectly arrived at a figure of 20% whole person impairment. Referring back to the upper extremity worksheet on page 13 of the AMA Guides to Permanent Impairment, the numbers should be as follows: right upper extremity impairment for pain in the region of the scar should be 15%, for loss of range of motion, right upper extremity impairment 5%, left upper extremity impairment 3%. This combines to 21% upper extremity impairment; and converts to 13% whole person impairment, at this time, by table 3, page 16 of the AMA Guides. As is evident from her history, Ms. Olson will probably continue to show improvement in the pain related to the scars involving her wrists. How much improvement she will enjoy is not clear at this time, especially in view of her continued light duty work using her hands. She will continue to have 8% upper extremity impairment, or 5% whole person impairment based on failed carpal tunnel surgery. The remainder should be reassessed on a regular, perhaps, annual basis. I sincerely regret this error as I try very much to be precise. I hope that this has not been an inconvenience. (Ex. 14-7) During his testimony, Dr. Archer summarized claimant's condition as follows: A. Well, I feel like to summarize the whole case, this lady developed carpal tunnel syndrome due to her work. She was successfully released on both sides. Q. Through the surgeries? A. Through the surgeries that were performed. I think the surgeries were appropriate and successful. However, she has residual symptoms on the right side as a result of the surgical scar on the right side. And I honestly don't know if revision of that surgical scar or injection with local anesthetic or steroid or something like that or just the passage of time would be enough to get her symptoms into remission. Q. Are her symptoms now that you see -- saw in her in June and that you reported as shown in Deposition Exhibit 1, are those common in your experience with people that have had carpal tunnel syndrome and surgery? A. I don't think they're common. I think they're a small, but real minority though. Q. Okay. A. 10 percent, 5 percent, 10 percent. Q. Are her symptoms consistent? A. Yeah. The symptoms that she's having are really consistent with any surgical scar, but especially one that's in the area of a joint. I've seen it with knees, I've seen it with compound fractures that required open reduction, that sort of thing. Q. Are Ms. Olson's symptoms and the causalgia and lost motion, are these permanent problems in your opinion? A. The loss of range of motion is probably static and permanent. The causalgia may or may not be permanent. I honestly don't know. Having seen her once, I didn't feel comfortable stating that it was permanent. In fact, it's-- I'm not a pain clinic specialist or a neurologist, but had she been a patient of mine, rather than just a consultation, I would have referred her to somebody who could inject that and see if we could get some remission. (Ex. 23-13 through 23-15) Since August of 1990, claimant has been able to return to work. In order to perform her work duties, she often pushes with her arms rather than with her wrists. Claimant testified she has weakness in her hands, and that she has had some difficulties at work. She has not lost work time since her August return to work. Claimant testified that she has reduced the stress on her hands by eliminating certain housekeeping tasks from her regular weekly routine. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). 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). The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Iowa Code section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). A wrist injury generally is an injury to the hand, not the upper extremity. The hand extends to the distal end of the radius and ulna, including the carpus or wrist. Elam v. Midland Mfg., II Iowa Industrial Commissioner Report 141 (App. 1981). Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Claimant has sustained a permanent impairment as a result of her bilateral carpal tunnel syndrome. The question of the degree of impairment is at issue. Both Dr. Kitchell and Dr. Neff discuss minor impairments but they give permanent work restrictions. Despite the permanent work restrictions, neither physician will assess a permanent impairment rating. However, both physicians have the reputations for testifying as "defense doctors." This deputy is mindful that claimant is permanently restricted. She has modified the manner with which she performs her job duties. At times, she is required to wear wrist splints in order to complete her work tasks. It stands to reason that if there had been no functional impairment, then work restrictions would be unnecessary. Likewise, if there had been no impairment, then wrist splints would be unnecessary. Such is not the case. Dr. Archer has addressed the issue of causalgia with respect to the present condition. He testified that he had often seen problems related to a scar, once surgery had been performed. Dr. Archer opined that claimant's pain was referred pain due to the surgical scarring. Dr. Archer testified that he had personally observed such conditions on other occasions. In this instance, claimant's problematic condition is adjacent to her surgical scar. It is the determination of the undersigned that claimant's condition is related to claimant's work injury. Prior to her surgeries, claimant had experienced no difficulties with her hands. Claimant has had to modify her job duties. She cannot use her wrists in the same fashion as she had used them prior to the work injury. Often, she must wear her wrist splints or she must use ice packs to relieve her pain. The testimony of Dr. Archer is accorded great weight. He has had specific instruction in using the AMA Guides in determining functional impairment. He has taken week long courses on using the AMA Guides. He has assessed numerous patients using the AMA Guides. Dr. Archer's description of his calculations is in detail. His reports are specific. In light of the foregoing, it is the determination of the undersigned that claimant is entitled to a permanent partial disability in the amount of 13 percent to the body as a whole as provided by section 85.34(2)(a). She is entitled to 65 weeks of permanent partial disability benefits at the stipulated rate of $252.90 per week. Prior to the hearing defendant paid 25 weeks of benefits to claimant. She is entitled to the remaining 40 weeks commencing from January 26, 1991. ORDER THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant sixty-five (65) weeks of permanent partial disability benefits at the stipulated rate of two hundred fifty-two and 90/l00 dollars ($252.90) per week with the remainder due and owing from January 26, 1991. Defendant shall take credit for the twenty-five (25) weeks previously paid to claimant. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year. Costs are taxed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of January, 1995. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jerry Schnurr, III Attorney at Law PO Box 952 Ft Dodge IA 50501 Mr. Robert C. Landess Attorney at Law 2700 Grand Ave STE 111 Terrace Center Des Moines IA 50312 5-1800 Filed January 18, 1995 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EILEEN M. OLSON, File No. 932283 Claimant, A R B I T R A T I O N vs. D E C I S I O N WHITE CONSOLIDATED INDUSTRIES, INC., Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1800 Permanent partial disability was found. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ KEITH F. BOWMAN, SR., Claimant, vs. File No. 932701 ALLIED CONSTRUCTION SERVICES, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE COMPANY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed July 21, 1993 is affirmed and is adopted as the final agency action in this case with the following additional analysis: The Second Injury Fund of Iowa argues that it should not be responsible for any portion of claimant's disability that is caused by his vision loss, his breathing problems, and his back problem. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager 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). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). In a permanent partial disability case, where other conditions of the body, unrelated to the member injured, contribute to claimant's overall disability, an apportionment is not necessary, Page 2 as only the disability caused by the work injury can be compensated. Denekas v. Aalfs Manufacturing Co., Appeal Decision, December 1991. Where a claimant is found to be permanently and totally disabled, apportionment for prior disability is not appropriate. Wissler v. City of Fremont, Iowa, Appeal Decision, February 22, 1993. Where the work injury causes a partial disability only, prior health conditions not related to the work injury but that nevertheless affect claimant's overall disability are not the responsibility of the employer. An apportionment of those conditions from the award of benefits is not necessary, however, as the award of industrial disability will be based solely on the effects of the work injury. Thus, where a claimant suffers an injury to the back, and also has a prior disability of the knee, the award of industrial disability for the injury to the back will be based on that injury alone. No apportionment for the prior knee condition is required, as the award does not contemplate any disability resulting from the knee, only disability resulting from the injury to the back. However, clearly, if claimant in the above example had a prior disability to the back that was disabling as envisioned by Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991), that prior disability would be apportioned out of an award that otherwise gauged the entire disability of the back. Thus, claimant's breathing, back and vision conditions are not prior conditions of a body part affected by the work injury, and thus the principle of "apportionment" has no application here. If claimant's work injury had caused partial disability only, his back, vision and breathing conditions would not enter into the calculation of his disability and would not form a basis for an award of benefits. Claimant would only be compensated for the effects of his work injury, and his industrial disability would be based on the disability resulting from the work injury alone without regard to disability caused by his preexisting breathing, vision and back problems. However, in this case claimant's condition after his work injury is total disability. When a work injury renders a claimant totally disabled, the employer (in this case, the Fund) is responsible for that total disability even if some portion of the disability is caused by factors not related to the work injury. Claimant was not totally disabled prior to the work injury, but is totally disabled after the work injury. When the work injury tips the balance to the point of total disability, the employer or second injury fund is responsible. Second Injury Fund of Iowa shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 3 Copies To: Mr. Stephen D. Lombardi Attorney at Law 10101 University Ave., Ste 202 Des Moines, Iowa 50325 Mr. Stephen W. Spencer Attorney at Law P.O. Box 9130 Des Moines, Iowa 50306-9130 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 1804; 3201; 2601.10 Filed February 25, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ KEITH F. BOWMAN, SR., Claimant, vs. File No. 932701 ALLIED CONSTRUCTION SERVICES, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE COMPANY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. _________________________________________________________________ 1804; 3201; 2601.10 Claimant awarded permanent total disability benefits based on an injury to the knee. Claimant's prior loss was to the other knee. Claimant also suffered numerous other conditions, such as severe vision loss, back problems, breathing problems, etc. Second Injury Fund's argument that it should be given "credit" for claimant's vision, back and respiratory problems was rejected. Under the statute and case law, the Fund is entitled to a "credit" for the disability associated with the prior loss and the current injury. Where the second injury results in permanent partial disability, the Fund, like an employer, is also entitled to have any preexisting disability apportioned out. However, where the injury results in total disability, the Fund, like an employer, is not entitled to an apportionment. This was especially true in this case, because the conditions the Fund sought to apportion (respiratory, back and vision conditions) were not work related and were not prior conditions of the lower extremities, and thus would not have been relied upon in an award of permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : KEITH F. BOWMAN, SR., : : Claimant, : : vs. : : File No. 932701 ALLIED CONSTRUCTION SERVICES,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant Keith Bowman seeks benefits under the Iowa Workers' Compensation Act upon a petition in arbitration against his employer, Allied Construction Services. Allied Construction is insured by defendant Allied Mutual Insurance Company. Claimant also seeks benefits from the Second Injury Fund of Iowa. Mr. Bowman sustained an injury to his left knee on October 19, 1989. This cause came on for hearing in Des Moines, Iowa on February 8, 1993. Testimony was received from claimant and his wife, Sandra Bowman. Claimant's exhibits 1-9 were received into evidence. ISSUES All parties stipulate that claimant sustained injury arising out of and in the course of employment on October 19, 1989. It is also stipulated that the injury caused both temporary and permanent disability. Entitlement to healing period benefits is no longer in dispute. Permanent disability is a scheduled member disability to the left leg. The parties also have stipulated to a compensation rate of $403.66, agree that medical benefits are no longer in dispute, and stipulate that defendants paid 22 weeks of permanent partial disability benefits at the correct rate. Issues presented for resolution include: 1. The extent of permanent disability; Page 2 2. Whether the Second Injury Fund of Iowa is liable on the claim. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Keith Bowman, nearly 56 years of age at hearing, has been troubled by a long and complex medical history. Mr. Bowman suffered a closed head injury in a bicycle accident at approximately age 14. He was in a coma for 21 days, after which he had to re-learn many basic academic skills such as writing and spelling. Mr. Bowman finished the tenth grade in a special education program, but currently finds himself unable even to handle much of his fifth grade daughter's school work. Psychologist Sally Kessman evaluated claimant in 1991. She found that although claimant's basic arithmetic skills and ability to think associatively were borderline, his full scale IQ was within the low average range and she found it likely that he had functioned at that level throughout his life. Full scale IQ on WAIS was prorated as 82 (claimant was unable to completely perform all tests due to his vision deficit). Claimant also apparently developed some sort of embolism behind the right eye which necessitated surgery. He now has a severe visual deficit in that eye, and to a lesser degree on the left side. On the right side, claimant suffers a "black spot" in the center of his field of vision, and has blurry or hazy side vision. On the left side, he is developing a similar spot, but the problem is less severe. Claimant was seen at the Neuro-Ophthalmology Clinic at the University of Iowa Hospitals and Clinics in 1991. Visual acuity on the right was 20/500, correctable only to 20/200. Acuity on the left was 20/100, correctable to 20/70. Claimant also suffers a hearing impairment on the right side. He has suffered a partial amputation to the right small finger (he is left hand dominant). He has suffered back problems, especially with bending. He also suffers respiratory problems from a form of noncontagious tuberculosis. And, Mr. Bowman has suffered bilateral knee injuries, both while employed by Allied Construction Services. After leaving school, claimant worked a number of relatively unskilled jobs, such as dishwasher, machine operator, sod layer and in golf course landscaping. However, he has worked most of his life as a drywall finisher. Mr. Bowman was so employed on January 6, 1981, when he felt a "snapping sensation" in his right knee. Arthroscopic examination was performed on January 30, finding a bucket handle tear of the medial meniscus. A partial medial meniscectomy was thereupon carried out. Recuperation was slow, whereupon claimant underwent a second arthroscopic procedure on July 16. The treating surgeon, Richard L Kreiter, M.D., several times charted his recommendation that Page 3 claimant seek other employment, although most people with "bucket handle" tears do return to their usual occupation, and claimant could "certainly" do work which did not require squatting, kneeling or significant climbing. Unfortunately, drywall finishing does require significant climbing. Dr. Kreiter's last chart note, dated October 20, 1981, stated that he "tried again to impress upon him the importance of looking for other employment if he cannot carry out his present occupation." Although the record is a little unclear, claimant apparently was not allowed to return to Allied as a union drywall finisher due to medical restrictions. Claimant then moved to the state of Florida and worked in the drywall trade for several years. However, he eventually returned to Iowa and this time was reemployed by Allied Construction Services. The injury that triggered this litigation occurred on October 19, 1989, when claimant fell approximately six or eight feet. He suffered a fracture to the left patella and another to the left middle finger. Once again, recuperation was slow, and claimant eventually underwent surgery on March 16, 1990. Joshua D. Kimelman, M.D., performed a partial medial meniscectomy and arthroscopy with findings of frayed degenerative posterior one-third of medial meniscus tear. On July 20, 1990, Dr. Kimelman charted that claimant could return to a light duty job; either sedentary work or work that does not require lifting or climbing. Although claimant has made several attempts to return to the drywall trade, he has been unable to work more than a few hours due to pain in his left knee. On October 25, 1990, Dr. Kimelman reported that the prognosis for returning to full active duty was extremely unlikely, and that claimant was a candidate for vocational rehabilitation. On October 30, 1991, Dr. Kimelman reported that claimant had a five percent impairment to each lower extremity and further restricted claimant from climbing activities. Claimant was seen for evaluation by Mark B. Kirkland, D.O. Dr. Kirkland reported on July 1, 1992 his impression of: 1. Patellofemoral compression syndrome, left knee. 2. Status post inferior pole non-displaced patellar fracture of the left knee. 3. Status post arthroscopic subtotal meniscectomy. 4. Tight lateral retinaculum of the left knee. Dr. Kirkland was not asked to evaluate the right knee. He believed that claimant was "very weak" in terms of overall fitness and thought claimant looked much older than his stated age. This observer developed the same impression at hearing: claimant gives an appearance of frailty and premature aging. Page 4 Dr. Kirkland assigned a nine percent impairment rating to the left leg, based four percent on residuals of the meniscectomy and five percent for the "impact-loading" injury to the patella. He suggested restrictions against frequent or repetitive squatting or stair climbing. Claimant complained at hearing of constant burning in the left leg, "snags" when he gets up, swelling, and sleep disturbance due to pain. Asked in an interrogatory to describe his complaints, he answered: I have severe pain in my knee, it locks up and still swells up when there is prolonged standing or walking. I still can't walk up stairs right or carry anything of weight to put pressure on my leg. I can't squat anymore. if I sit long in one position, my leg will lock up and I have to massage my knee. Sometimes the pain is so bad it will wake me up at night. Sometimes there is no pills that will help the pain. Both knees still get rubbery feelings and are unstable. In 1991, claimant undertook vocational evaluation at the Iowa State Vocational Rehabilitation Facility. Given claimant's problems with vision and knees, the facility could recommend only selective, sedentary placement in the position of production assembler. Claimant had the ability to work accurately in assembly work, but would likely be restricted from fine assembly tasks that required good visual acuity. Unlike the opinion developed by Dr. Kirkland, the ISVRF believed claimant showed good motivation. ANALYSIS AND CONCLUSIONS OF LAW While the treating surgeon has assigned a five percent impairment rating to the left leg, the evaluating physician, Dr. Kirkland, assigned a nine percent rating. The nine percent rating is more persuasive, in that it takes both the meniscal tear and patellar fracture into account. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. Page 5 The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. 1982). Unfortunately, Mr. Bowman is not a very attractive candidate for competitive employment. For almost the last 30 years, he has worked as a drywall finisher. His medical restrictions now clearly exclude him from continuing in that profession. Mr. Bowman has very little formal education and functions only in the low average range of intelligence. Given also his age, substantial retraining is simply not realistic. Lifting restrictions will prevent claimant from working as a construction laborer, and his previous work as a busboy or dishwasher is probably foreclosed by his inability to stay on his feet for an extended time. The Iowa State Vocational Rehabilitation Facility could Page 6 recommend only selective, sedentary assembly work. Claimant's loss of visual acuity will foreclose him from much of even this limited market, and he will probably need an accommodating employer to permit changing positions regularly. It seems clear that claimant has a severe weakness in his inability to read instructions. His respiratory problems attributable to tuberculosis will require placement away from chemical fumes or areas of heavy dust and paint spray. Considering all these factors, it must be concluded that at the present time, claimant's industrial disability is permanent and total. The parties have stipulated to the commencement of permanency benefits on March 28, 1991. Because this is a second injury fund case, requiring an apportionment of liability between the Fund and employer, it is appropriate to assess the permanent partial disability attributable to claimant's lower extremity disability to the employer on that date, and thereafter assess claimant's total industrial disability to the Fund. Under Iowa Code section 85.34(2)(o), compensation for the leg is 220 weeks. Nine percent is 19.8 weeks, equivalent to 19 weeks, 6 days. The Fund is also entitled to "credit" for claimant's previous loss to the right leg, equivalent to 11 weeks. The Fund has failed to present evidence of the degree of impairment attributable to claimant's visual deficits, so "credit" cannot be calculated. Fund liability therefore will commence 30 weeks, 6 days after March 28, 1991: on November 1, 1991. Because defendants Allied Construction Services and Allied Mutual Insurance Company have paid voluntary benefits in excess of their liability, claimant shall take nothing as to them. ORDER THEREFORE, IT IS ORDERED: As to defendants Allied Construction Services and Allied Mutual Insurance Company, claimant takes nothing. Defendant Second Injury Fund of Iowa shall pay weekly benefits of four hundred three and 66/100 dollars ($403.66) to claimant commencing November 1, 1991, and continuing during such time as claimant remains permanently and totally disabled. The Fund shall pay interest on accrued benefits from the date this decision is filed. Claimant's costs are assessed to defendants Allied Construction Service and Allied Mutual Insurance Company. Each defendant shall bear its own costs. Signed and filed this ____ day of July, 1993. Page 7 ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Stephen D Lombardi Attorney at Law 10101 University Avenue Suite 202 Des Moines Iowa 50325 Mr Stephen W Spencer Attorney at Law PO Box 9130 Des Moines Iowa 50306-9130 Ms Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 1804; 3201; 2601.10 Filed July 21, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : KEITH F. BOWMAN, SR., : : Claimant, : : vs. : : File No. 932701 ALLIED CONSTRUCTION SERVICES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 1804; 3201; 2601.10 Permanent total disability was assessed against Second Injury Fund. Claimant suffered separate injuries to both knees. Although claimant also had severe visual deficits, Fund was not given "credit" because impairment could not be calculated absent any medical rating. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES G. STUMPFF, File No. 932836 Claimant, A P P E A L vs. D E C I S I O N SECOND INJURY FUND OF IOWA, Defendant, ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 18, 1994 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: As correctly stated by the deputy, "...the first requirement to establish Fund liability is the previous loss of a hand, arm, foot, leg or eye." For purposes of triggering Fund liability, when there is an impairment to the fingers or toes, it is necessary to ascertain whether there is disability in the hand or foot. Simmons v. Black Clawson Hydrotile, 34 Biennial Rep., Iowa Indus. Comm'r 313 (Appeal Dec. 1979) (Dist. Ct. App. settled) and Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, (2nd Ed.) 17-3. In the instant case and for the reasons stated by the deputy, the medical records do not show disability in claimant's hand related to the 1976 finger injury. Accordingly, Fund liability is not triggered. Citing Second Injury Fund v. Neelans, 436 N.W.2d 355, 356-357 (Iowa 1989) and Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 470-471 (Iowa 1990), claimant asserts that the loss to a finger does establish a loss to the hand for second injury fund purposes (Claimant's Brief and Argument, pp. 5-6). The industrial commissioner does not agree with claimant's reading of Neelans and Braden. Neither case stands for the proposition that loss to a finger, with no showing of disability in the hand, triggers second injury fund liability. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of May, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr J Richard Johnson Attorney at Law PO Box 607 1715 First Avenue SE Cedar Rapids IA 52406 Page 2 Mr James F Christenson Assistant Attorney General Hoover State Office Building Tort Claims Division Des Moines IA 50319 3202 Filed May 18, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES G. STUMPFF, File No. 932836 Claimant, A P P E A L vs. D E C I S I O N SECOND INJURY FUND OF IOWA, Defendant, ___________________________________________________________ 3202 Prior injury limited to the finger did not consitute qualifying previous loss to trigger Fund liability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES G. STUMPFF, Claimant, vs. B. G. BRECKE, INC., File No. 932836 Employer, A R B I T R A T I O N and D E C I S I O N AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding upon the petition in arbitration of James Stumpff against employer, B. G. Brecke, Inc., its insurance carrier, Aetna Casualty & Surety Company, and the Second Injury Fund of Iowa. Claimant sustained a severe injury to both wrists in a fall on October 24, 1989. He has since entered into an agreement for settlement with defendants B. G. Brecke and Aetna, followed by a partial commutation. Only Mr. Stumpff's claim against the Second Injury Fund of Iowa remains for consideration in this proceeding. A hearing was accordingly held in Cedar Rapids, Iowa on July 15, 1993. The record consists of claimant's exhibits 1-10, Second Injury Fund's exhibits AA-GG, and the testimony of claimant and John Suter. ISSUES The parties have stipulated that claimant sustained injury arising out of and in the course of employment on October 6, 1976 (the prerequisite "prior" loss) and October 24, 1989, and agree that the injury caused permanent disability. The parties also stipulated to the rate of compensation ($524.56). Issues presented for resolution include: 1. Whether claimant sustained a qualifying prior injury under Iowa Code section 85.64; and, 2. If so, the extent of Second Injury Fund liability. Page 2 FINDINGS OF FACT The undersigned deputy industrial commissioner finds: On October 6, 1976, claimant suffered a severe injury when his fingers were caught between concrete chutes, nearly severing his right index finger at the distal one-third of the proximal phalanx. An open reduction of the fracture was performed by Bruce L. Sprague, M.D., with the assistance of Drs. DeCesare and Craven. Dr. Sprague's surgical notes show fracture of the proximal phalanx with disruption of the extensor mechanism, and contused but intact neurovascular bundles. Dr. Sprague wrote that the PIP (proximal interphalangeal joint) was not entered. That is to say, the surgical procedure was limited to the finger, and did not invade the hand. Dr. Sprague eventually rated impairment at 73 percent of the finger, which he then correlated to eighteen percent of the hand and sixteen percent of the upper extremity. ANALYSIS AND CONCLUSIONS OF LAW Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). As seen, the first requirement to establish Fund liability is the previous loss of a hand, arm, foot, leg or eye. In this case, claimant relies on the 1976 injury to establish prior loss. Numerous cases have held that the loss of a finger does not trigger Fund liability. Gilbert v. Second Injury Fund of Iowa, (Arb. Dec., Sept. 29, 1989); Fugit v. Jimmy Dean Meat and Second Injury Fund of Iowa, (Arb. Dec., March 19, 1991); Patton v. Roberts Dairy and Second Injury Fund of Iowa, (Arb. Dec., January 13, 1992). The medical records do not show disability in claimant's hand related to the 1976 finger injury. The fact that claimant suffers a loss of grip strength is to be expected with such a severe finger injury, but fails to demonstrate Page 3 independent disability of the hand. Similarly, the fact that the Dr. Sprague extrapolated his impairment rating to the hand and upper extremity does not indicate that the injury extended either to the hand or the arm. Claimant has complained of pain, but pain alone does not establish disability absent objective findings. On the basis of the entire record, the 1976 injury is limited to the index finger, and accordingly fails to trigger Fund liability. ORDER IT IS THEREFORE ORDERED: Claimant shall take nothing further. Costs are assessed to claimant. Signed and filed this ____ day of January, 1994. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr J Richard Johnson Attorney at Law PO Box 607 1715 First Avenue SE Cedar Rapids Iowa 52406 Mr Thomas N Kamp Attorney at Law 600 Davenport Bank Building Davenport Iowa 52801 Mr James F Christenson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 3202 Filed January 18, 1994 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES G. STUMPFF, Claimant, vs. B. G. BRECKE, INC., File No. 932836 Employer, A R B I T R A T I O N and D E C I S I O N AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ 3202 Prior injury limited to the finger did not consitute qualifying previous loss to trigger Fund liability.