BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JIM CHAMBERS, : : Claimant, : : vs. : : File No. 932925 IOWA EXPRESS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on November 16, 1993, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on October 17, 1989. The record in the proceeding consists of the testimony of the claimant; claimant's daughter, Sherri Chambers; claimant's wife, Judy Chambers; claimant's son, Mike Chambers, and, Craig Smith; joint exhibits 1 through 11 and defendants' exhibit A. ISSUES The issues for resolution are: 1. The nature and extent of claimant's permanent disability and entitlement to disability benefits; and, 2. Whether claimant is entitled to 86.13 penalty benefits. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified in person at the hearing and through his deposition taken September 25, 1992, represented by joint exhibit 10. Claimant is a 48-year-old high school graduate who spent twenty years and one month in the military, having received a medical discharge retirement in 1983. Claimant related his work history after he left the military. His work history involved but not necessarily limited to driving fuel tank trucks, driving trucks delivering equipment, unloading big trucks, some with truck tires weighing 50 to 150 pounds each, delivering perishables, loading and unloading the same. Page 2 Claimant began working for defendant employer in August or September of 1988 at $6 per hour. His duties involved driving a truck, delivering freight, and loading and unloading. Claimant described how he injured himself on October 17, 1989 while working for defendant employer. This injury resulted in him fracturing his right wrist and two ribs. Whether claimant was injured is not in dispute. Claimant described some of the medical treatment and related the surgeries he has had the last one being March 31, 1992, in which the hardware was removed. Claimant showed the location of his scar and indicated that he could not move his hand up and down or sideways because of his injury. Claimant testified that he hurt his arm while in the service in Germany in 1982. He indicated his arm got caught between two trucks and was crushed. He indicated he had two surgeries as a result of that injury, one in Germany and one in the United States that involved a bone graft. He acknowledged it was a serious injury but indicated he got along great and could do nearly everything up to his 1989 injury. These activities he could do involved mowing, raking, shoveling, bowling, playing golf. He indicated now he cannot bowl or do any yard work. Claimant then acknowledged that he is limited to doing certain things including yard work because of his heart condition. He said this heart condition was discovered when he had the surgery to fuse his wrist. He indicated he had triple bypass surgery eighteen months ago, is on medication, and got out of the hospital again the day before this hearing. He is not contending his heart problems are the result of any workers' compensation injury. Claimant said his social security disability he is receiving is the result of his heart condition. Claimant testified as to the three surgeries Scott B. Neff, D.O., has performed on his wrist, the first being February 13, 1990, in which the doctor took out some bone chips and the second one was to put a steel plate in for fusion. This was done on August 29, 1991. The third surgery occurred on March 31, 1992, which was done to take the steel plate out because it was affecting his hand. Claimant indicated the first surgery resulted in no improvement at all and he did try to go back to work at defendant employer to see if they had any light duty work and was told they had nothing for him and they would call him. He said defendant employer never did call him. He worked after the first surgery as a security guard for a month for Wells Fargo. He could not work any longer because his right wrist was hurting so bad. Claimant then had his second injury on August 29, 1991. This was a fusion and they put a steel bar in his wrist. He said that surgery inproved the symptoms of pain but he didn't have much motion except for turning it back and forth. He could not move it up and down. This testimony Page 3 was kind of confusing because in claimant's testimony at the hearing he indicated at first he couldn't move it up and down, but the undersigned's notes indicate he could move it sideways. Then, in attempting to get clarification, the undersigned asked him a question and it appeared then he said he could not move it sideways. It would appear that the inability to move it sideways would be similar to claimant moving it back and forth. There seemed to be a contradiction between claimant's testimony at the hearing and his deposition, on page 17, joint exhibit 10, lines 22 and 23. Claimant then was asked in his deposition as to whether he was released to return to work and whether he checked with defendant employer about light work. Claimant indicated he did not as it was at the time he was having heart problems. Apparently, these problems began to occur on October 4, 1991. Claimant then had his last surgery on March 31, 1992, which involved the removal of the hardware and it appears there was a six week recovery from that. Claimant seemed to indicate on page 23 of his deposition that the recovery for that was two weeks but it appears undisputed that six weeks were actually involved. There appears no dispute whatsoever that claimant would have been off work after the August 29, 1991 surgery and the March 31, 1992 surgery because of his heart condition so that he would not have been able to return to work notwithstanding the fact the doctor released him to work as far as a workers' compensation injury is concerned. On cross-examination, claimant was questioned concerning his medical discharge retirement after twenty years and whether he was in fact no longer qualified for military service anyway. Claimant disagreed. Both on direct and cross-examination, redirect and in claimant's deposition (Jt. Ex. 10), claimant seemed very defensive to the fact and tries to give the impression he really in fact didn't need a medical discharge but that he could have had a non-medical or regular honorable discharge. It is obvious because of the issue herein that he is attempting to downplay the fact of his medical condition at the time he left the military. Claimant leaves the impression that the reason he took the medical discharge was that benefits received were non-taxable wherein if he was honorably discharged on a non-medical basis, they would be taxable. In looking at the record and looking at page 1 of joint exhibit 5, it is clear on its face that claimant not only was discharged because of a medical situation but it would be hard to believe he would have been able to stay in the service. Assuming that he could have been honorably discharged and wasn't discharged for medical reasons, the undersigned is not impressed by the fact that he would agree to some false circumstances or condition in order to get out of the military and get tax-free benefits. The action claimant took in 1983 at the time of his discharge is the record claimant is stuck with Page 4 whether in hindsight, he wants to disavow it in order to have an opportunity for a possible increase in workers' compensation benefits. Claimant was questioned concerning defendants' exhibit A which is his application for employment. Claimant's testimony was confusing to the extent that the undersigned reluctantly had to ask some questions to clarify his notes and even that led to contradictory testimony as far as how much of page 2 of said exhibit he did or did not fill out. He gave several different answers. Claimant did not convince the undersigned that he didn't fill in some of the questions in the middle of page 2. He disavowed that handwriting. Claimant completely disavowed having filled out pages 3 and 4. Although the undersigned does not absolutely believe that to be the case and that claimant possibly did in fact fill it out notwithstanding the fact that he claimed someone else filled out pages 3 and 4 and part of page 2 and had it ready for him to sign It is undisputed that claimant did sign the form and it is immaterial whether he read pages 3 and 4 that he claims had been filled out for him. Again, the undersigned can only surmise that claimant went along assuming pages 3 and 4 were filled out and part of page 2 was filled out by someone else. The undersigned can surmise that he left many of the answers which are false in a false situation because they were a benefit to him and he would rely later on to the fact that someone else did that for him. The fact that claimant signed the document leaves him bound by its contents. The undersigned sees no other necessity to go into other areas or items in which claimant gave the wrong answer or was incorrect and obviously knew the correct answer. Craig Smith testified he works for Ruan Leasing and knew the claimant when claimant worked for Ruan. He said claimant was a driver involved in distribution of moving the assets which were in the form of equipment from one location to another. Claimant did not move freight. He said claimant did the paperwork, he was involved in cranking the fifth wheels, he did a lot of driving usually by himself. He said claimant had no physical problems he was aware of nor had he filed any workers' compensation claims that he knew of. He said he saw claimant about every Monday morning and then sometimes one or two times during the week. He said there were occasions where he could have sent claimant on a trip and not see him for seven or eight days. Sherri Chambers, claimant's daughter, testified that claimant had no problem with his right arm prior to his 1989 injury and that he bowled every Sunday night but hasn't bowled since his injury. She said he used to golf but doesn't now. She didn't know if claimant golfed between his army injury and the 1989 injury at Iowa Express. Judy Chambers, claimant's wife, testified that claimant had no problems with his right arm since his 1983 retirement from the military and his 1989 injury. She said claimant golfed, bowled, rode bicycles, hunted and fished prior to Page 5 his 1989 injury and that he can't do these activities since his 1989 injury. She said he does do some fishing. Mrs. Chambers was then asked, on cross-examination, as to joint exhibit 6, pages 1 and 2, in which Mark Jones, D.O., of Wildon Clinic, on January 12, 1987, pursuant to a physical examination, indicated claimant had tenderness over the lateral aspect of the wrist and it was edging up into the forearm as well, etc. Mrs. Chambers then indicated she didn't remember this but that she also did not always go to the doctor with him. Mike Chambers, claimant's son, testified that he does not recall claimant having any problems with his right hand or arm or any problem from claimant's military retirement to the 1989 injury. He testified that claimant bowled with the family every Sunday night and bowled in a league during the week. He then was asked about claimant's golfing and indicated that he only knows of claimant golfing with him once at Jester Park. He fishes with his father now and did before his injury but indicated claimant uses his left hand now. Ronald C. Evans, D.C., testified through his deposition on October 18, 1993. In reviewing the deposition and the exhibits attached thereto, it seems like the doctor is consistently in almost all cases referring to claimant's wrist. He then on occasion refers to the upper extremity. This agency has held that the wrist is considered the hand and not the arm. It is not unusual for medical people to refer to the right thumb, hand, arm or shoulder as the right upper extremity and it often confuses the deputy what they actually mean and it is up to the deputy to determine what in fact they do mean based on all the evidence. On page 5 of deposition exhibit 2 of Dr. Evans' deposition (Jt. Ex. 11) he sets out the evaluation of permanent impairment to claimant's elbow and radial nerve in addition to his wrist. It appears to the undersigned that when claimant was in court there was no problem with claimant moving his arm at the elbow, etc., but it seemed like claimant contended he was unable to move his hand up and down. As indicated earlier, possibly sideways even though that testimony was rather confusing and seemed contradictory based on claimant's deposition. Dr. Evans opined that claimant had a 35 percent impairment to the right upper extremity. The doctor then went through a detailed explanation of how he arrived at this percent of impairment using the AMA Guides to the Evaluation of Permanent Impairment and measurements. The doctor refers consistently to the wrist. It would appear to the undersigned that when the doctor refers to the upper extremity, also, in regards to his deposition testimony, he is referring to the wrist as a part of the upper extremity. This interchanging between upper extremity and wrist is not unusual as doctors often consider an injury to the right hand or right finger as also the right upper extremity (Jt. Ex. 11, pp. 14-20). On page 17 of said joint exhibit, the doctor was asked Page 6 as to whether the pronation and supination affects the use of the elbow and he said they are also considered primary movements of the elbow because the other end of the two bones that make pronation and supination viable are the radius and ulna as they come to the elbow and therefore, according to the Guides, and according to the anatomy, it is an elbow-assigned range of motion. The doctor had noted that the motion involved in the supination and pronation was affected. The doctor further said on page 18 that pronation and supination is described as an activity of the arm. The doctor also went into detail as to how much of the 35 percent would he apportion to claimant's preexisting injury he received in the military and how much to his 1989 injury. The doctor then indicated he had available the percent of loss that was determined in 1982 when claimant had a military injury and the loss he had when he examined claimant pursuant to the 1989 injury. Considering all the other factors necessary, he determined that 25 percent of the right upper extremity was attributed to the 1989 accident. Again, in his answer he referred to the right upper extremity and the wrist. I can see where the parties are arguing over whether claimant's injury was to the right arm or the right wrist. This agency has held that an injury to the wrist is in fact an injury to the hand. On cross-examination, after trying to explain certain figures and rounding up and rounding down certain figures, it appears there is a 20 percent rather than a 25 percent impairment attributed to claimant's 1989 injury. The explanation of these figures in this whole process is as confusing to the undersigned as it obviously was to the parties' attorneys. It appears from the opening statement of claimant's counsel and comments by the defendants' counsel that 20 percent of the 35 percent was the final conclusion of Dr. Evans as far as impairment attributed to the 1989 injury. There seems no disagreement that considering the nature of the injury claimant had in the service in 1982, that type of articular fracture is going to produce degenerative joint diseases of that area in the future. There is no evidence as to what extent that did in fact happen as there was no other measurements or determinations between 1982 or 1983 and the determination made pursuant to claimant's 1989 injury. In fact, it appears that there is no exact impairment rating done by the military but only certain measurements were done. Joint exhibit 3 is the various reports and letters of Dr. Evans in which he has either referred to or affirmed or supplemented his deposition and there is no need to further go into detail with it. The March 29, 1993 report of Scott B. Neff, D.O., (Jt. Ex. 8) clarifies and solves one dispute that up to this point was somewhat confusing in the record and needed much clarification. Dr. Neff is the one who did the surgery on claimant's right upper extremity which is referred to as Page 7 both the right wrist, right hand and right upper extremity. In this report, the doctor emphasized that the impairment is indeed confined to the extremity and not the body as a whole and that when he refers to the upper extremity, it was not to have been confined to the hand as originally transcribed and as reflected in a previous letter he had sent to defendants' attorney. In this letter the doctor also pinpoints claimant's healing period. In the record this appears to be the only reference to any exact healing periods. It would appear that in this particular instance, there are no other comparable dates or determinations by medical doctors as to healing periods and that these are the healing periods accepted by the undersigned. The undersigned notes with amusement certain paragraphs in the doctor's letter. In the first instance, he refers to the well-known and beautifully produced reports of Dr. Evans. This appears to be a critical or smart aleck comment by Dr. Neff concerning Dr. Evans. The undersigned might add that he is not sure what report he is referring to of Dr. Evans but the undersigned appreciates the medical reports even if they are more than one or two pages long as they get to the point and show that the doctor did in fact put some time and detail into the examination and in explaining his figures. The undersigned also notes that in Dr. Evans' report it does not appear he had to correct any errors or apologize for any reports unlike Dr. Neff, whose letter is more lengthy than it should be because of his incorrect or erroneous reports and comment that he apparently expected another non-medical doctor to correct his error. The undersigned also notes Dr. Neff's comment that Dr. Evans is well-known in this area and his reports are sought by claimant's counsel. Dr. Neff indicated he was not certain why claimant's counsel should seek out his impairment evaluations. The undersigned can only refer to agency experience and comment that "it takes one to know one." In considering substantial agency experience and expertise, Dr. Neff is well-known as a defendant chosen doctor sought out consistently by defendants and it is obvious for one reason only and that is that his evaluations of impairment are very low and seems in many case as substantially in variance with what might be otherwise a reasonable impairment under the evidence of the case. The undersigned is reluctant to make these comments but oftentimes one might be too close to the forest to see the woods when we have someone in that situation taking after another doctor, who is a chiropractor, for the reasons stated therein. The undersigned feels some comment should be made concerning that. Chiropractors have a place in the workers' compensation system and they have ability to determined impairments. In fact, it appears to this agency that physical therapists do considerable impairment ratings and a doctor signs on to their rating. On page 2 of his March 1993 report, Dr. Neff somewhat infers the physical Page 8 therapist should have corrected or changed Dr. Neff's report that had been in error. This leaves the impression that Mr. Bower would know or should know as much as Dr. Neff concerning this and should have caught the error. It appears he thought Mr. Bower as a physical therapist should have known that the upper extremity was involved rather than the hand. Dr. Neff's December 7, 1992 letter adds confusion to the issue which he may have resolved in his March 1993 letter but the undersigned begins to wonder if Dr. Neff has carefully read his correspondence or put the time in necessary in trying to make his opinions conclusive. In this letter, he seems to correct Mr. Bower who gave claimant a 28 percent impairment to the upper extremity and indicated that it is a 28 percent to the hand. Of course, this contradicts his March 29, 1993 letter. The undersigned, likewise, is not certain what letter Dr. Neff is referring to in which he expected Mr. Bower, the physical therapist, to correct Dr. Neff's opinion since Mr. Bower's November 30, 1992 letter refers to a 28 percent impairment to the claimant's upper extremity and this was before Dr. Neff's December 7, 1992 letter. At that time, Mr. Bower suggested Dr. Neff do the apportionment. The undersigned doesn't know if it is the April 12, 1993 letter that Dr. Neff thought Mr. Bower should have corrected Dr. Neff's error, but Mr. Bower in that report agreed with Dr. Neff. He doesn't say what letter he agreed with as he referred to Dr. Neff's careful, meticulous job in establishing what impairment was likely due to claimant's 1982 military injury and what was attributed to the 1989 work-related injury. If he was referring to the December 7, 1992 letter, unlike Dr. Evans, it does not show any meticulous setting out, at least for the undersigned, to see how he arrived at the impairments. In his December 7, 1992 letter, Dr. Neff opines that 24 percent of claimant's impairment predates his recent injury and 4 percent is related to the recent activity which would have been in reference to the October 17, 1989 injury. In his very short letter, the doctor does not indicate how he arrived at that. He only refers to receiving the army records but unlike Dr. Evans, he doesn't set out what he understands was a percent of motion loss at the time of claimant's military injury and what his records indicate through examination as of the date of his letter and determination of the apportionment. In Dr. Neff's December 7, 1992 letter and in an October 15, 1990 letter, the doctor seemed to be concerned with his interpretation of Iowa law and what the Iowa Supreme Count has done and seeks a correction if he is interpreting Iowa law incorrectly. In the 1990 letter, he was not certain of the legalities of how certain things worked. The undersigned might note that the doctor should stick to medicine and not try to interpret the Iowa law and be an advocate for the defendants' lawyer as to trying to work the Iowa Supreme Court decisions into his determination of Page 9 impairment. That is up to the undersigned to decide. Dr. Neff's September 10, 1990 letter adds further confusion concerning his reports in that he indicates on page 13 of joint exhibit 8 he felt claimant's primary military injury to claimant's wrist amounts to 95 percent of the problems associated with his wrist and yet there is no indication at that time he carefully and meticulously had reviewed the claimant's military records. In that same letter, he opined that claimant had a 6 percent impairment to his right wrist as a result of his work-related injury. In the normal mathematical application, 95 plus 6 would equal 101 percent. The undersigned has seen no evidence in the record that would change Dr. Neff's comments in his January 8, 1992 letter in which he opined that claimant would not be able to tighten the snap chain requiring flexion and would not be able to load and unload where his wrist must be required to be flexed around a box. At that time, he did think claimant could return to truck driving and he seems to make no further comment in any other letter or report after that date. It appears the doctor did not realize that when claimant was driving a truck there were several other things he had to do including loading and unloading that would require good active movement of his wrist and upper extremity. In September of 1992, Thomas Bower, the physical therapist, was estimating or guessing what preexisting impairment claimant may have had prior to October 1989 because he had not any of claimant's past medical history nor, it appears, any of his military medical history. It doesn't look like he ever did have that and as of his April 12, 1993 letter, he agreed with Dr. Neff but there is no indication Dr. Neff or Mr. Bower saw any of those records so as to give his own independent opinion as to any preexisting impairment. As indicated earlier, it is a question as to how much he should have relied on Dr. Neff's review of any records based on certain letters that have been referred to herein. On August 12, 1992, Dr. Bower did indicate he reviewed the medical records forwarded to him by Dr. Neff. Why, then, on September 29, 1992, was Mr. Bower speculating as to a 50-50 preexisting and current apportionment using an unproved formula. Joint exhibit 5 is the military medical board proceedings which deal with claimant's medical discharge. Contrary to the impression the claimant tried to give that he could have stayed in the service and had even gotten an honorable discharge and not a medical discharge and took the medical discharge because he wouldn't have to pay taxes on the benefits, it is not supported by joint exhibit 5. In fact, it is clearly obvious that claimant was discharged for medical reasons and that as shown on page 6 of said record, claimant was found on January 4, 1983 to no longer meet the medical fitness standards as provided in the military law. The undersigned is going to presume that the medical records Page 10 are correct and that there was a good faith determination that claimant was entitled to a medical discharge and that the end product was claimant was able to avoid income tax and that there wasn't an evasion of income taxes. In any case, the undersigned finds that claimant did have severe impairment at the time he had his military discharge as shown clearly in the record even though there is no percentage set out. There is a dispute as to the extent of claimant's healing period. The only evidence in this case shows that claimant incurred three healing periods. The first one was February 13, 1990 through March 26, 1990, involving six weeks; the second one August 29, 1991 through January 8, 1992, involving 19 weeks; and March 31, 1992 through May 11, 1992, involving six weeks, the grand total being 31 weeks. There is no other testimony to dispute this. The undersigned therefore finds that those are the healing periods and the total healing period weeks involved. The next issue that is not only very controversial in this case as is true in many cases similar to this, but one which it appears is heading for the supreme court based on the opening statements of the attorneys and the positions they are taking. There has been extreme controversy in cases reported to this agency that have been fueled by certain decisions of this agency as to whether the AMA Guides to the Evaluation of Permanent Impairment are infallible, exact, precise or is the Gospel when it comes to scheduled member injuries. In other words, if under the Guides, a doctor opines a 10 percent impairment to one's upper extremity and it is determined that that is the arm, then one would take 10 percent times 250 weeks to arrive at 25 weeks. It is obvious in looking at the history of the Guides, that there have been so far four additions plus a revised third editiion, the most recent one coming out in 1993. There are obvious reasons for these being revised and one would suspect there is going to be additional revisions. If one looks at the Forward and the Guides as a whole, you can see that there have been considerable disputes resulting in necessary revisions concerning arriving at impairment and how they should be arrived at. This agency's experience time and time again shows that you could line up ten doctors and the odds are they would in the majority of instances vary among themselves from a few degrees to a substantial degree of impairment. Even though all would be allegedly using the same Guides and the same medical data. Others are more competent to do this in arriving at impairment percentages than others. In fact, many doctors rely on physical therapists. Many doctors are hired guns either by the claimant or the defendants and this agency's experience has been that there are certain doctors that are sought out who are known to be ultraconservative as far as the defendants are concerned and ultraliberal as far as the claimants are concerned. It is no coincidence that there Page 11 are certain doctors that defendants desire to send claimant to even if it is a matter of traveling up to 100 miles or more and, likewise, it is no coincidence that claimants seek out doctors for their impairments even though one may travel a considerable distance. The Guides are just what they say. They are guides. As set out in the Forward of the fourth edition, it indicates that the rationale for this new edition is that the pace of progress and advance in medicine continues to be rapid and a new look at impairment criteria for all organ systems is advisable. The undersigned believes this agency should also come into the latter part of the twentieth century and adjust to the flow of reality and medical science. This fourth edition has a chapter on pain. As you know, there has been a big dispute concerning how pain enters into the impairment picture. Some doctors place it in the ratings, other don't. The Guides also refer to the fact that the fourth edition emphasizes that impairment percentages derived by using the Guides criteria represent estimates rather than precise determinations. This, alone, would indicate by common sense that the Guides are not exact. A deputy should have the ability to determine certain factors besides the functional impairment. The Guides are clear on that. The fourth edition Forward goes on to say that permanent impairments are evaluated in terms of how they affect the patient's daily activities and that this edition recognizes that one's occupation constitutes a part of his or her daily activities. Under chapter 1, impairment evaluation, it states that an impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished. The Guides recognize that normal is not a fine point or an absolute in terms of physical and mental functioning and good health. The norm can vary with age, sex and other factors. Given as an example, a 21-year-old most certainly will differ from a 75-year-old as to physical and mental ability. An interpretation of normal that is too strict can result in an overestimation or underestimation of impairment. A disability may be defined as an alteration of an individual's capacity to meet personal, social or occupational demands or statutory regulatory requirements because of an impairment. Disability refers to an activity or task the individual cannot accomplish. Page 317 of the fourth edition of the Guides identifies activities of daily living as self care, personal hygiene, communication, physical activity, standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting and leaning and functional activities as caring, lifting, pushing, pulling, climbing and exercising, sensory function, hand function, grasping, holding, pinching, percussive movements, sensory discrimination; travel, riding, driving, traveling by airplane, train or Page 12 car, sexual function, sleeping, social recreation activities. The Guides emphasize that the physician's judgment is affected by his or her experience, training, skill and thoroughness in examining the patient, applying the findings to the Guides' criteria. These will be factors in estimating the degree of patient's impairment. The agency's experience is that the medical profession is often deficient in knowing the whole story concerning the claimant and they rely so heavily on just functional impairment not realizing the daily activities that are affected by claimant's impairment, the nature of his job. The undersigned is not advocating that all the criteria for determining industrial disability should apply to scheduled member injuries. Although that has been advocated and might be the ultimate goal for fairness, the undersigned believes that other factors other than just the percent of functional impairment should enter into a deputy's determination of the extent of one's impairment and the benefits claimant should receive. It is obvious in so many instances that a scheduled injury can be much more severe on a person than an industrial disability, and yet in so many instances, the weekly benefits as a result of a severe scheduled injury is meaningless or disgraceful compared to what one would get on a slight industrial disability. Time and time again this agency's sees where a scheduled member injury results in a far harmful effect on a person's wellbeing, ability to do a job, hold a job, or obtain employment than an industrial disability. The person's nature of their work and occupation is so important and yet time and time again the Guides, as used by the medical profession, do not take this into consideration. This agency sees doctors at times struggling with the Guides because of that fact and often add comments that they must come up with a certain impairment because of the Guides even though the actual impairment effect of an injury on a claimant is much more severe. They have been led to believe, and this agency has been a part of this, that the ratings are Gospel with an exception being so rare, it is not worthy of mention. The undersigned believes a deputy's experience and this agency's experience should be able to be used to determine, taking all things into consideration, including the Guides as a guide, the bias of certain doctors and the visual observation of claimant, the total amount of one's impairment for purposes of scheduled injuries after weighing all the evidence. The deputies are able to use their judgment in industrial disability cases in which impairment is one thing to be considered. There are many other criteria in arriving at their determination. A deputy can reject or accept a doctor's opinion, but it is obvious a different standard of accepting or rejecting a doctor's impairment rating exists in scheduled member cases. Why shouldn't age and one's inability to get a job or the refusal to give a claimant work because he was able to drive a truck, put on chains, adjust a fifth wheel, load and Page 13 unload, and yet because of the loss of 10, 15 or 20 percent of a person's arm, he is unable to perform that job or duties. A 20 percent loss of one's arm would entitle one to 50 weeks. If it was an industrial disability of 10 percent, one would be entitled to 50 weeks. How many times has this agency seen situations in which a 20 percent loss of one's lower or upper extremity been far more harmful than a 10 percent industrial disability. The undersigned believes this case is a good example of why the Guides as currently used and as reflected in decisions of this agency, and to which decisions a deputy is currently bound, should be reconsidered. The undersigned has taken this opportunity to reflect those concepts because in the opening arguments of counsel, it is obvious that this case not only involves those concepts but that this case is being prepared for the proper appeal. The greater weight of evidence which in most instances is undisputed, shows that this claimant was able to do all kinds of functions in driving a truck and working for defendant employer, but that as a result of this injury, he is no longer able to do those functions, one important one being able to load and unload a truck. Yet, we have a doctor hired by defendants who comes up with a 4 percent impairment. That means under the AMA Guides to the Evaluation of Permanent Impairment, this claimant is entitled to ten weeks if it is determined to be an arm or 7.6 weeks if it is determined to be a hand. In this case at bar, claimant has a serious heart problem and it is obvious he is unable to work because of his heart condition. It would appear from the claimant's argument that the principal at least similar to the Bearce case should be applicable to scheduled injuries. The defendants site the Simpson v. Burlington Basket Company, file number 921025, which is an appeal decision of March 19, 1993, wherein the Bearce case was held to apply to industrial disability only and is not applicable to scheduled member impairments. The undersigned must abide by the Simpson case as it is the agency's precedence at this time. The undersigned might add though that it seems contrary to good sense and even contrary to the AMA Guides to the Evaluation of Permanent Impairment, that not only should other factors be considered but that if a person had no residue or substantially less impairment residue from a prior scheduled member impairment at the time of his new injury, there should not be deducted from the new injury the prior numerical impairment. Under the Simpson case, as the undersigned reads it, if a person has a 20 percent impairment to his right arm 20 or 30 years ago and at the time of his injury in 1993 he was lifting and swinging 100 pound bags, loading trucks with 100 pound bags of potatoes and onions and injured himself and it was opined undisputed that he had on the date of his new injury a 40 percent functional impairment of his right upper extremity Page 14 and no longer could perform that job, that, in fact, he would only have a 20 percent net impairment. It doesn't make sense to the undersigned. It makes less sense when you consider the variance that medical doctors come up with when they try to determine the degree of impairment and the defendants are stuck with an impairment rating years before by doctors who possibly did not use the Guides, but because of the time element the Guides may not have been in existence or they were the first edition and yet one is stuck with an outdated criteria and does not have the benefit of the modern day medical system. MRIs and CT scans and other tools of the medical profession have not been in existence that long and are being improved yearly and yet it seems as though this agency at times holds on to outdated criteria and methods. Modern medicine through exercise and dynamic equipment and surgery can reduce prior medical impairment to less or nonexisting impairments years later. Doctors' education can also rectify mistakes or conclusions of the past based on medical techniques now obsolete. Defendants argue that if in fact the percentage of rating is to be infallible notwithstanding the great variance that doctors have looking at the same facts and the same claimant, how can they with ease settle cases. Now, they just multiply one percentage figure against another figure and mathematically come up with a scheduled member benefit entitlement. We have a system that the attorneys seem to be able to operate under when it comes to industrial disability. The legal profession has been able to operate under the multitude of changes over the years. The legal profession is still litigating scheduled member cases because of each side hiring a hired gun to see who can get the highest and who can get the lowest impairment hoping somewhere the deputy will be able to decide their argument and arrive at a degree of impairment and disability for the scheduled member injury. In fact, this agency sees often where defendants pay the claimants or notify claimants that they are entitled to a certain amount of industrial disability benefits based on the percent of impairment and take nothing else into consideration. This agency sees it occurring often where the rules of the scheduled member percentage rating is applied to the payment of industrial disability benefits with the defendants hoping to escape penalty benefits on that theory or thinking. The undersigned believes that taking all of the facts into consideration and also having observed this claimant; seeing the location of his surgical scar; the ability and inability to make certain movements with his arm, hand and wrist; following the Simpson case and not allowing the Bearce case to be applied; and, using current agency precedence, the undersigned believes that the opinions of Sinesio Misol, M.D., and Ronald C. Evans, D.C., are the more correct and accurate as far as claimant's total impairment. The undersigned believes that Drs. Misol and Evans are the closest using the criteria referred to above in determining Page 15 the extent of claimant's net permanent impairment caused by his October 17, 1989 injury. The undersigned further believes that Dr. Evans did a very meticulous and careful testing to draw his conclusions and the undersigned believes Dr. Evans' 20 percent permanent impairment opinion is correct and the undersigned therefore finds that claimant incurred a 20 percent impairment as a result of his October 17, 1989 injury. The undersigned finds that, notwithstanding Dr. Neff doing the surgeries and also treating claimant, he is out of step with reality as to his rating. It is an insult to the integrity of the system to think that this claimant would only be entitled to 10 weeks at the most or 7.6 weeks of permanent partial disability if defendants have their way. Claimant has a severe injury and if it wasn't for his heart condition, he would still be unable to perform the work he was doing before. Again, the undersigned is not applying the Bearce case and is following the Simpson case, but the undersigned believes Dr. Neff is out of step with the reality of this case. His reports are inconsistent, contain errors, he wants a physical therapist to correct his errors, he is back and forth as to whether it is the wrist or the arm. The undersigned finds that claimant's arm is a scheduled member that is affected and not the hand. This agency has held that the wrist is considered the hand. The overwhelming evidence in this case shows that when the doctor refers to an upper extremity, the upper extremity is affected including the wrist, the arm, the elbow and movement involving the arm. There has been a multitude of opinions and letters and the undersigned believes that the concluding opinion shows that we do have an impairment to the arm. There were plenty of opportunities in the multitude of correspondence to nail this matter down further by defendants if in fact it was the hand. It seems like defendants' doctor, himself, that the defendants' own doctor, Dr. Neff, nailed that down in a letter and Mr. Bower agreed. It seems like Dr. Neff determined the upper extremity and not the hand after additional correspondence with defendants' attorney. (Joint Exhibit 8, page 1) Claimant argues that since no healing period benefits were paid by the defendants after claimant had his second surgery on August 29, 1991, and since claimant was entitled to healing period, any overpayment of healing period that was paid prior to that time should not be a credit and that if any credit would be given, it would be given as to any additional permanent partial disability benefits. The undersigned does not accept claimant's theory. We have a case here in which all of the factors involved at the hearing including all the healing periods and the extent of any permanent partial disability are considered and there is no evidence that any payments made were specifically attributed to healing period or permanent partial Page 16 disability. The undersigned does not feel that would make a difference anyway even if the defendants had indicated that they had paid benefits as healing period versus permanent partial disability during the course of this injury and ultimate litigation. The undersigned finds that defendants can apply the 53 weeks they paid towards the ultimate benefits that are owed. The undersigned does not accept defendants' contention as to the healing period in that defendants contend that the second healing period should be August 29, 1991 through December 2, 1991, and not January 8, 1992. The undersigned will refer to joint exhibit 8, page 1, in which the doctor specifically wrote defendants' attorney which was obviously in response to a letter defendants' attorney wrote to the doctor in which Dr. Neff said that the healing period ended on January 8, 1992. The claimant wants a penalty for unreasonable delay of benefits by defendants. The undersigned finds that there was not an unreasonable delay in commencement or termination of benefits. CONCLUSIONS OF LAW It is concluded that: Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 09 (Appeal Decision 1982). The Iowa Supreme Court in Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983) explained the two methods for evaluating a disability--functional and industrial: Functional disability is assessed solely by determining the impairment of the body function of the employee; industrial disability is gauged by determining the loss to the employee's earning capacity. Functional disability is limited to the loss of physiological capacity of the body or body part. Industrial disability is not bound to the organ or body incapacity, but measures the extent to which the injury impairs the employee in the ability to earn wages.... ...A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Page 17 A finding that there is some work that claimant could do within the physical and educational limitations he has does not foreclose the finding of permanent total disability. See Eastman v. Westway Trading Corporation, II Iowa Indus. Comm'r Rep. 134 (Appeal Decision 1982); and Chamberlin v. Ralston Purina, (Appeal Decision October 29, 1987). It is further concluded that: Claimant incurred a 20 percent permanent impairment to his right arm-upper extremity as a result of this October 17, 1989 injury. Claimant incurred a healing period of six weeks beginning February 13, 1990 through March 26, 1990, 19 weeks beginning August 29, 1991 through January 8, 1992, and six weeks beginning March 31, 1992 through May 11, 1992, totaling 31 weeks payable at the rate of $225.18 per week. Claimant is not entitled to any 86.13 penalty benefits. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant thirty-one (31) weeks of healing period benefits at the rate of two hundred twenty-five and 18/100 dollars ($225.18) per week for the periods beginning February 13, 1990 through March 16, 1990, and being interrupted and to begin again August 29, 1991 through January 8, 1992, for nineteen (19) weeks and then being interrupted and beginning again March 31, 1992 through May 11, 1992, for six (6) weeks. That defendants shall pay unto claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred twenty-five and 18/100 dollars ($225.18) per week beginning at the end of claimant's first healing period, namely, February 14, 1990, until claimant's second healing period begins and then after the second healing period interruption said benefits shall begin again on January 9, 1992 until interrupted again by claimant's third healing period, which begins March 31, 1992 and continues again at the end of the third healing period, May 12, 1992 until all benefits are paid. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid fifty-three (53) weeks of weekly benefits. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant Page 18 to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Barry Moranville Attorney at Law 1601 22nd St Ste 212 West Des Moines IA 50265 Mr Glenn Goodwin Attorney at Law 4th Flr Equitable Bldg Des Moines IA 50309 1803; 1806 5-4000 Filed December 16, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JIM CHAMBERS, : : Claimant, : : vs. : : File No. 932925 IOWA EXPRESS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Found claimant incurred a 20% permanent impairment to his right arm. 1803 Deputy commented on use of AMA Guides and that they are a guide only. 1806 It was obvious from claimant's attorney's opening comments that this case will most likely be used to test the limited criteria used in scheduled member cases versus the industrial disability criteria. Should functional impairment alone be the gold standard in scheduled member cases? Discussion by deputy as to whether the Bearce case concept should be foreclosed to claimant in scheduled member cases (Simpson case), i.e., if prior permanent impairment of a scheduled member has disappeared in whole or in part, must the prior functional impairment still be totally deducted from the current injury functional impairment to arrive at a net impairment. 5-4000 Found claimant not entitled to penalty benefits Page 1 before the iowa industrial commissioner ____________________________________________________________ : JUDY L. GORDON, : : Claimant, : : vs. : : File No. 933064 WOODWARD STATE HOSPITAL- : SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Judy L. Gordon, claimant, against Woodward State Hospital, employer, and State of Iowa, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on October 24, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on May 5, 1992, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. The documentary evidence identified in the record consists of joint exhibits A-O. issues Pursuant to the prehearing report and order dated May 5, 1992, the parties have presented the following issues for resolution: 1. The extent of entitlement to weekly compensation for permanent disability; and, 2. The type of permanent disability. findings of fact The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits, and makes the following findings: Claimant was born on August 20, 1954, and completed the eleventh grade of school in 1971. In 1981, she obtained a nurse's aide certificate. In 1984, she obtained a home health care certificate. She received her GED equivalency diploma in 1987. Her work activity consists of numerous Page 2 short-term jobs as a home health aide, nurse's aide, custodian, dishwasher, salad maker and baker. She commenced working for employer on August 18, 1989, as a residential treatment worker. She was assigned to assist wheelchair and bed patients with their personal needs. This involved continuous transferring and lifting of patients. On October 24, 1989, while transferring a patient from her wheelchair to the commode, the patient became unstable and started to fall. In the process of diverting the fall, claimant wrenched her right arm and shoulder. She reported the incident to her supervisor and completed her work shift for the day. Despite a painful right shoulder, she returned to work the next day but avoided lifting activities. The following day, she went to her treating physician, John Murphy. He referred her to physical therapy at Boone County Hospital. She was then informed by the insurance carrier that she had to see a doctor of their choice. A referral was made to Michael J. Makowsky, M.D. Claimant was seen by Dr. Makowsky on November 2, 1989. She presented with complaints of right shoulder pain. On examination, tenderness across the anterior and posterior shoulder and on deep palpitation over the right trapezius was evident. Physical therapy and medication was prescribed. A re-examination on November 7, 1989, revealed some improvement in her condition with full range of right shoulder motion and minimal tenderness of the anterior and posterior shoulder. She was returned to light duty beginning November 8, 1989, and instructed to avoid repetitive pushing and pulling with the right arm and shoulder, no overhead work and no lifting more than 10-12 pounds (Joint Exhibit F, page 19). Claimant saw Dr. Makowsky for follow-up examination on November 14, 1989. She had returned to regular duty on November 15, 1989. Employer could not accommodate her restrictions. At this time, she manifested some improvement in her symptoms with medication. When seen by Dr. Makowsky on November 30, 1989, she complained of pain over the right anterior and posterior shoulder area. Her symptomatology exacerbated with constant lifting of patients. Her medication was changed and she was continued on regular duty (Jt. Ex. F, p. 18). On December 18, 1989, claimant presented to Dr. Makowsky with increased shoulder pain and decreased range of motion. An x-ray was taken of her right shoulder which appeared normal. She was returned to light duty with restrictions of lifting no more than 15 pounds and working above shoulder level. Claimant returned to Dr. Makowsky for follow-up examination on December 28, 1989. She indicated that part of her light duty required repetitive movements of her right arm in drawing and cutting paper. On examination, she had marked tenderness over the right rotator cuff and right upper trapezius. Dr. Makowsky took her off work and made an appointment for her to see Delwin E. Quenzer, M.D. (Jt. Ex. F, p. 17). Claimant saw Dr. Quenzer on January 5, 1990. On examination, the impingement test was positive and the throwing position of abduction and external rotation was Page 3 painful. Dr. Quenzer recommended a continuation of physical therapy. An arthrogram taken on January 17, 1990, was normal (Jt. Ex. E, pp. 1-2). Claimant failed to improve despite physical therapy. On February 9, 1990, Dr. Quenzer injected her right shoulder. Neither the injection nor physical therapy improved her condition. On March 6, 1990, Dr. Quenzer requested that claimant obtain a second opinion. On March 20, 1990, she was seen by Joseph F. Fellows, M.D. He reported to Dr. Makowsky that he was uncertain as the exact etiology of her pain. He recommended an MRI evaluation. This was performed on March 22, 1990, and revealed no acute abnormality (Jt. Exs. E and F). On April 12, 1990, Dr. Quenzer performed an arthroscopy with arthroscopic acromioplasty. The post-operative diagnosis was a State II impingement syndrome of the right shoulder with a very dense subacromial bursae. The coracoacromial ligament was also resected (Jt. Ex. F, p. 2). Claimant continued under the simultaneous care of Dr. Makowsky and Dr. Quenzer. She participated in a post- operative physical therapy program but made slow progress and developed increasing pain in her right shoulder. Dr. Quenzer felt that this was probably tendinitis caused by overuse during therapy. He injected the right subacromial on August 7, 1990, and physical therapy was temporarily discontinued (Jt. Ex. E, p. 8). Claimant returned to physical therapy in September 1990. She was alternately seen by Dr. Makowsky and Dr. Quenzer. She was last seen by Dr. Makowsky on November 13, 1990. At that time, he determined that maximum medical healing will be achieved by December 1, 1990. Dr. Makowsky reported on November 27, 1990, that claimant continues to have pain in her right shoulder and decreased range of motion on abduction and forward flexion. He reported that she is capable of working with restrictions of lifting no more than ten pounds on a repetitive basis and no above right shoulder level work or repetitive use of the right arm and shoulder (Jt. Ex. F, pp. 8-9). On December 5, 1990, Dr. Quenzer reported that, in his opinion, claimant sustained an 8 percent impairment of the whole person based upon loss of range of motion and weakness in the suprascapula nerve distribution (Jt. Ex. E, p. 9). Claimant returned to Dr. Quenzer on February 26, 1991, with complaints of continuing pain in her right shoulder. On examination, she had diminished strength in flexion and abduction, particularly above the level of her shoulder. Dr. Quenzer recommended treatment at Methodist Hospital's Pain Management Center. On April 4, 1991, claimant presented to the Iowa Methodist Pain Management Center. She was seen by Craig DuBois, M.D. His impression was shoulder pain, chronic on the right, and myofascial pain in the neck with multiple sites of tenderness. The staff at Iowa Methodist Pain Page 4 Management Center felt that claimant would be best served by a comprehensive pain rehabilitation program not offered by the center (Jt. Ex. O, p. 12). Claimant was admitted to the Mercy Hospital Pain Center program on August 26, 1991. A medical assessment was performed by James Blessman, M.D. She was seen sixteen times by the unit physical therapist for TENS class evaluation, exercise and hot packs. She also attended stress management and relaxation classes. She was discharged from the program on September 20, 1991. Dr. Blessman felt that her treatment at the center was essentially ineffective. She refused to participate in a functional capacity evaluation making it difficult to assess her full return to activities (Jt. Ex. L). On March 19, 1992, claimant participated in a functional capacity evaluation which was performed by Douglas Ely, a licensed physical therapist. Based on the Maximum Effort Test and Endurance Projections, it was determined that claimant had the residual capacity to perform light work activity with maximum lifting limit, floor to knuckle, of 20 pounds (Jt. Ex. L, pp. 25-31). conclusions of law The first issue to be determined is whether claimant's injury on October 24, 1989, was confined to her right arm or extended into the body as a whole. 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. 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). When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. 1982), a torn rotator involve disability to the body as a whole. Streeter v. Iowa Meat Processing Co., file numbers 730461 and 809945 (App. Decn., March 31, 1989); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (1982); Houser v. A M Cohron & Sons, file number 851752. The surgical procedure undertaken by Dr. Quenzer invaded the body side of the joint (the acromion was affected). Claimant has persistent pain and discomfort in her shoulder and neck, which according to Dr. Quenzer is characteristic of impingement syndrome. She has limited range of motion in her shoulder. Therefore, claimant has met her burden of proof that her injury extends beyond the scheduled member and to the body as a whole. Kellogg v. Shute and Lewis Coal Co., 130 N.W.2d 667 (1964). 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). Page 6 There are no weighting guidelines how each of the factors of industrial disability are to be considered. There is no equation which can be applied and then calculated to determine the degree of industrial disability to the body as a whole. Therefore, it becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529, 535 (Appeal Decision March 26, 1985). In this instance, claimant is 37 years old. The fact that she was disabled in the peak earning years of her employment career makes her disability worse than it would be for a younger or older employee. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., I Iowa Indus. Comm'r Rep. 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision 1989). Claimant completed the eleventh grade of school and obtained a GED equivalency diploma. She has specialized training as a nurse's aide and home health care worker. Claimant has worked sporadically in various health care agencies and restaurants. She was terminated by employer in January 1990. The medical evidence clearly demonstrates that claimant lacks the residual functional capacity to perform most of her past relevant work. Physicians who have treated and/or examined claimant agree that she is not totally disabled and is capable of performing light work activity. Dr. Makowsky found no objective finding in her shoulder after surgery (Jt. Ex. F, p. 3). Claimant has not worked since being terminated by employer in January 1990. Claimant has made minimal efforts to find other work activity. She alleges an inability to work due to severe and intractable right shoulder pain. However, her cooperation with pain management programs has been less than satisfactory. Claimant's motivation to return to the competitive job market is questionable. While it is true that claimant's impairment has resulted in the loss of earning capacity, and employers are responsible for reduction in earning capacity caused by the injury, they are not responsible for a loss of actual earnings because the employee resists or refuses to return to work. Williams v. Firestone Tire and Rubber Co., III Iowa Indus. Comm'r Rep. 279 (1982). In conclusion, (1) based upon the foregoing factors; (2) based on all of the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Page 7 Decision March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); and (3) based upon agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 30 percent industrial disability to the body as a whole and is entitled to 150 weeks of permanent partial disability benefits. ORDER THEREFORE, it is ordered: That defendants pay to claimant one hundred fifty (150) weeks of permanent partial disability benefits at the rate of two hundred six and 35/100 dollars ($206.35) per week commencing December 2, 1990. That defendants receive credit under Iowa Code section 85.38(2) for previous payments made under a non-occupational group plan. That defendants receive credit for any benefits previously paid. That defendants pay all costs, pursuant to rule 343 IAC 4.33. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1992. ________________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David D Drake Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Ms Joanne Moeller Assistant Attorney General Tort Claims Page 8 Hoover State Office Building LOCAL 1803.1; 5-1803 Filed May 8, 1992 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : JUDY L. GORDON, : : Claimant, : : vs. : : File No. 933064 WOODWARD STATE HOSPITAL- : SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Defendants argue that claimant's disability is to the right upper extremity only. Claimant was diagnosed with chronic subacromial impingement. She underwent an arthroscopy with arthroscopic acromioplasty. The post-operative diagnoses, according to the operation report, was a Stage II impingement syndrome of the right shoulder with a very dense subacromial bursae. The coracoacromial ligament was also resected. A shoulder injury is an injury to the body as a whole if the injury affects the "body side" of the shoulder joint. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). This agency has typically compensated shoulder injuries industrially on the basis that such injuries involve disability to the body as a whole. Streeter v. Iowa Meat Processing Company, File Nos. 730461 and 809945 (App. Dec. March 31, 1989); Houser v. A.M. Cohron & Sons, File No. 851752 (arbitration decision July 1990). The surgical procedure undertaken by Dr. Quenzer invaded the body side of the joint (the acromion was affected). Therefore, claimant's injury must be compensated industrially. 5-1803 After considering all of the factors of industrial disability, including claimant's age (35-37); education (GED equivalency diploma and certification as a nurse's aide and home health care worker); past relevant work (residential treatment worker, home health aide, nurse's aide, waitress, dishwasher and salad maker); physical limitations (no repetitive use of the right arm and shoulder or working above right shoulder level); a residual functional capacity assessment limiting claimant to light work activity with maximum lifting limitations from the floor to knuckle of 20 pounds; claimant's failure to cooperate with a pain management program and vocational rehabilitation; lack of motivation to aggressively seek employment; defendants' failure to accommodate claimant's impairment; claimant awarded 30% industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RENE' KLINGAMAN, Claimant, vs. File No. 933216 ROSE ACRE FARMS, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 26, 1991 is affirmed and is adopted as the final agency action in this case. That the costs of the appeal including the transcription of the hearing shall be shared equally. Defendants shall pay the costs of the arbitration proceeding. Signed and filed this ____ day of October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. A. Zane Blessum Attorney at Law P.O. Box 309 Winterset, Iowa 50273 Mr. Joseph A. Happe Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50209-2421 9998 Filed October 28, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RENE' KLINGAMAN, Claimant, vs. File No. 933216 ROSE ACRE FARMS, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed August 26, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RENE' KLINGAMAN, : : Claimant, : : vs. : : File No. 933216 ROSE ACRE FARMS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Rene' Klingaman, claimant, against Rose Acre Farms, Inc., employer, and Liberty Mutual Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on October 21, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on August 7, 1991, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The record in this case consists of joint exhibits A through F; claimant's testimony and testimony from the following witnesses: Norman Bosier, Kenneth Klingaman, Patrick O'Neil, Eric Eyerly, Bruce Young, Don Woodson and Glen Hilton. issues Pursuant to the prehearing report and order dated August 7, 1991, the parties presented the following issues for resolution: 1. Whether claimant's injury on October 21, 1989, is a cause of temporary and permanent disability and, if so, the extent thereof; 2. Whether claimant is entitled to weekly compensation for permanent disability and, if so, the type of permanent disability and the commencement date; 3. Whether some of claimant's medical expenses are causally connected to her work injury; and, 4. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13. Page 2 findings of fact The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein and makes the following findings: Claimant sustained a left knee injury on October 21, 1989, arising out of and in the course of her employment with employer. Claimant was seen by Allan D. Ball, M.D., on October 21, 1989, and was taken off work for a few days and advised to use a knee pad (Exhibit E-2). On October 25, 1989, Dr. Ball released claimant to return to work but advised against working on the packing line for two weeks (Ex. E-2, page 2). On November 2, 1989, Dr. Ball reevaluated claimant and determined she was not ready for line work but was able to do work which does not cause her pain (Ex. E-2, p. 3). On November 20, 1989, Dr. Ball released claimant for "light work" (Ex. E-2, p. 4). Claimant testified that she gave Dr. Ball's work release to her employer but they did not return her to work. Claimant was seen by Martin Rosenfeld, D.O., on December 1, 1989, due to knee pain. X-rays were taken and a diagnosis of synovitis was made. On December 15, 1989, Dr. Rosenfeld recommended arthroscopy. She was referred to Jerome G. Bashara, M.D., for a second opinion. X-rays were reviewed and Dr. Bashara recommended a diagnostic and operative arthroscopy of the left knee (Ex. E-3). Based on a diagnosis of internal derangement of the left knee, Dr. Rosenfeld performed an arthroscopy with arthroscopic debridement of the medial synovial plica on January 15, 1990 (Ex. E-4). On April 16, 1990, claimant was referred to Mark B. Kirkland, D.O., by Dr. Rosenfeld due to persistent knee pain. On examination, she complained of antero-medial pain and popping. Dr. Kirkland recommended another arthroscopy and possible shaving of the fat pad (Ex. E-5). Claimant was referred by insurance carrier to Rodney E. Johnson, M.D., for evaluation on May 10, 1990. On examination, her symptoms were along the medial tibial joint line. X-rays showed juxta-articular osteoporosis on the left side. Additional testing was recommended (Ex. E-7). On May 22, 1990, a bone scan was taken and showed increased bone activity in the lateral tibial plateau of the left knee. On May 25, 1990, a left knee arthrogram showed a fracture involving the posterior lateral left tibial plateau. Left knee tomograms taken on May 29, 1990, showed evidence for fracture of the lateral tibial plateau (Ex. E-6). Claimant was seen by Dr. Johnson for follow-up evaluations on May 29, June 21, July 12 and October 4, 1990. On May 29, Dr. Johnson felt that claimant's symptoms were an inflammatory type pain. He released her to return to work with restrictions of no kneeling or standing more than 30 Page 3 minutes per hour for the next three weeks (Ex. E-7, p. 2). Claimant testified that she presented her work release to employer and was told there was no job at the plant for a person with these restrictions. On June 21, 1990, Dr. Johnson saw claimant because of knee pain. He recommended either a patellar immobilizing splint or an injection of the bursa. Claimant testified that she declined the injection but consented to the use of the splint. By July 12, 1990, claimant had stopped wearing the splint due to discomfort. An injection was again offered by Dr. Johnson but she declined (Ex. E-7, pp. 4-5). Dr. Johnson referred claimant to Thomas W. Bower, L.P.T., for an impairment rating and functional capacity test. Based on the tests results, Dr. Bower concluded that claimant could not return to her previous work activity. In regard to her impairment, Dr. Johnson and Mr. Bower co-signed a letter stating as follows: In regards to impairment, this patient does have full range of motion at this time. Granted, there is pain when the knee is fully flexed. Dr. Johnson does not feel that the fracture in the posterior lateral tibial plateau is related to the original complaints which began in October of 1989. The increased uptake over the lateral tibial plateau, however, may well be related to this. However, nothing in the guides specifically address this particular problem. Therefore, on the basis of full range of motion which would be the only ratable quantity, the patient really has not sustained any impairment on the basis of the guides. (Ex. E-8, p. 2) Claimant saw Dr. Johnson for the last time on October 4, 1990. At this time, she presented with additional complaints including discomfort in the left hip and ankle. On examination, she had full range of motion in both of these areas. Dr. Johnson diagnosed tenosynovitis of the ankle and trochanteric bursitis of the left hip. He felt that these were not permanent symptoms nor would they result in any functional impairment (Ex. E-7, p. 6). Being dissatisfied with the aforementioned assessment, claimant sought a second opinion from Peter D. Wirtz, M.D., on October 31, 1990. Since claimant had medial joint line symptoms, Dr. Wirtz recommended an arthroscopic evaluation. He reported that: The patellar symptoms which relate to the work related condition may be a subluxation complex with persistence of the symptoms through this and/or degeneration. Correction of this condition would include arthroscopic lateral release and realignment procedure for the patellar tendon which is outside the limits of normal for patellofemoral articulation. Page 4 (Ex. E-9, p. 2) Claimant was seen by Dr. Wirtz for follow-up evaluation on November 14, 1990. On examination, tenderness was located over the patellar tendon. Dr. Wirtz recommended a second opinion evaluation at the Iowa City Orthopedic Clinic (Ex. E-9, pp. 4-5). On November 19, 1990, claimant was seen by Noonon Buckwalter, M.D., at the University of Iowa Medical Center, Orthopedic Clinic. On examination, claimant was noted to have tenderness on the anterior medial aspect of the left knee with slight patellar maltracking. Reviewing prior laboratory findings, it was determined that the changes on the lateral tibial plateau were consistent with aseptic necrosis (Ex. E-10). On December 4, 1990, claimant underwent arthroscopy of the left knee with arthroscopic lateral retinacular release performed by Dr. Wirtz (Ex. E-4, pp. 3-4). On May 23, 1991, Dr. Wirtz reported that claimant's final diagnosis is patellofemoral syndrome with patellar subluxation left, postoperative left knee arthroscopy, release and tibial tubercle transfer. Maximum medical improvement, with permanent residuals, was reached on March 18, 1991. Restrictions imposed include no repetitive standing, walking, ladder and stair climbing. Claimant's impairment was rated at five percent of the left lower extremity (Ex. E-9, p. 11). conclusions of law The first issue to be determined in this case is whether claimant's October 21, 1989, left knee injury is a cause of temporary and permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 21, 1989, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert Page 5 and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Claimant's uncontroverted testimony indicates that she was asymptomatic prior to October 21, 1989. She developed left knee problems after falling from a candling booth and striking her left knee. Since that time, she has had arthroscopic evaluation of the left knee with debridement of the medial synovial plica on January 15, 1990, and a second arthroscopy on December 4, 1990, with arthroscopic lateral retinacular release. These procedures were performed due to persistent left knee problems which developed as a result of her work-related injury on October 21, 1989. Dr. Wirtz, the physician who performed claimant's December 4, 1990, procedure indicated that she reached maximum medical improvement on March 18, 1991, and noted that she had some permanent residuals including weakness to the quadriceps on the left with diminished strength. This condition limits claimant's functional ability as to prolonged standing and walking and repetitive ladder and stair climbing (Ex. E., sec. 9, p. 11). The best evidence as to claimant's healing period is Dr. Wirtz's opinion that claimant reached maximum medial improvement on March 18, 1991, and an assignment of a permanent partial impairment rating on that date. Accordingly, claimant is entitled to 73.429 weeks of healing period benefits from October 21, 1989 through March 18, 1991, at the stipulated rate of $173.45. Although claimant contends that she has suffered an injury to the body as a whole, the medical evidence clearly indicates that her knee injury has not effected any other part of her body. There can be no recovery of benefits for industrial disability unless it is shown that a part of the body other than the scheduled member is impaired. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Dr. Wirtz opined that claimant had sustained a five percent impairment to the left lower extremity. He did not indicate that claimant's injury extended into the body as a whole. Because Dr. Wirtz's opinion was based on loss of function of the left lower extremity only, it is concluded that claimant's injury should not be compensated industrially. Accordingly, claimant's left knee injury does not extend beyond the scheduled loss and under Iowa Code section 85.34(2)(o) claimant is entitled to 11 weeks (5% x 220) of permanent partial disability benefits at the stipulated rate Page 6 of $173.45. The next issue to be determined is whether claimant is entitled to medical benefits under Iowa Code section 85.27. Claimant has the burden of demonstrating that the medical services obtained were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). In this case, claimant has shown that the medical expenses she incurred were related to treatment for a work-related injury. Thus, claimant is entitled to reimbursement for the following expenses: Dr. Wirtz $ 2,690.00 University of Iowa Medical Center 80.00 Madison County Memorial Hospital 97.00 Physical therapy 140.00 Pharmacy bills 750.00 Iowa Methodist Hospital 4,319.62 Total $ 8,076.62 The final issue to be determined is whether claimant is entitled to penalty benefits under Iowa Code section 86.13. Iowa Code section 86.13 provides in pertinent part as follows: If commenced, the payments shall be terminated only when the employee has returned to work, or upon thirty days' notice stating the reason for the termination and advising the employee of the right to file a claim with the industrial commissioner. .... If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Where a claim is "fairly debatable", defendants are entitled to argue their position, whether the debate concerns a matter of fact or law. The agency has adopted the analysis that the claimant must show the absence of a reasonable basis for denying benefits. Dodd v. Oscar Mayer Food Corporation, File No. 724378 (Penalty Decn., April 27, 1989). In this case, defendants had a reasonable basis for terminating claimant's payments and apprised her of the rationale in a 30 day notice letter dated August 9, 1990 (Ex. A, p. l). Therefore, no penalty benefits shall be awarded. order Page 7 THEREFORE, IT IS ORDERED: That defendants pay to claimant seventy-three point four-two-nine (73.429) weeks of healing period benefits at the stipulated rate of one hundred seventy-three and 45/l00 dollars ($173.45) for the period from October 21, 1989 through March 18, 1991. That defendants pay to claimant eleven (11) weeks of permanent partial disability benefits at the stipulated rate of one hundred seventy-three and 45/l00 dollars ($173.45) per week commencing March 19, 1991. That defendants receive credit for any benefits previously paid. That defendants pay claimant's medical expenses totaling eight thousand seventy-six and 62/l00 dollars ($8,076.62). That defendants pay the costs of this action pursuant to rule 343 IAC 4.33. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to Iowa Code section 85.30. That defendants file claim activity reports as required by this agency. Signed and filed this ____ day of August, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. A. Zane Blessum Attorney at Law P O Box 309 Winterset IA 50273 Mr. Joseph A. Happe Attorney at Law 500 Liberty Bldg Des Moines IA 50309 5-1802; 5-1803; 5-2700; 5-4000 Filed August 26, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : RENE' KLINGAMAN, : : Claimant, : : vs. : : File No. 933216 ROSE ACRE FARMS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1802; 5-1803 Claimant awarded 73.429 weeks of healing period benefits and 11 weeks of permanent partial disability benefits due to internal derangement of left knee with medial synovial plica requiring arthroscopic evaluation and debridement of medial synovial plica in January 1990. Persistent symptoms and a second arthroscopy in December 1990 required operative arthroscopic lateral retinacular release. 5-2700 Only one physician expressed an opinion as to the degree of claimant's impairment. Dr. Wirtz gave a 5% impairment of the left lower extremity based on weakness to the quadriceps and diminished strength. No medical evidence that injury extended beyond the left knee and into the body as a whole, claimant not compensated industrially. 5-4000 Claimant requested penalty benefits which were denied because the claim was "fairly debatable." Dodd v. Oscar Mayer Foods Corp., File No. 724378 (Penalty Decn., April 27, 1989) and Iowa Code section 86.13.