Page 1 before the iowa industrial commissioner ____________________________________________________________ : CARL C. PETERSON, : : Claimant, : : vs. : File Nos. 906408 : 933308 JOHN MORRELL & CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This decision concerns two proceedings in arbitration brought by Carl C. Peterson against his employer, John Morrell & Company, and its insurance carrier, National Union Fire Insurance Company. File number 906408 deals with an injury of December 12, 1988. File number 933308 deals with an injury of January 3, 1989. Both injuries are admitted by the employer. The issues for determination are the extent of permanent partial disability compensation and the commencement date for payment of the permanent partial disability compensation. Claimant has, prior to hearing, been compensated for a five percent permanent partial disability of each hand by payment of 19 weeks of permanent partial disability compensation. The case was heard at Sioux City, Iowa on May 13, 1991. The evidence in the case consists of testimony from Carl C. Peterson, joint exhibit A, claimant's exhibits 1 through 58 and defendants' exhibits 101 through 104. Official notice was taken of the arbitration decision entered September 20, 1990 in file number 848648 and of the agreement for settlement in file number 848647 which awarded claimant nine and one-half weeks of compensation at the rate of $229.38 per week for five percent permanent partial disability of the left hand. Page 2 findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Carl C. Peterson is a 48-year-old man who has been employed by John Morrell & Company and its predecessor, Iowa Meats, for approximately ten years. He had no problem with his hands or arms before commencing that employment. His primary job has been marking snouts on the head table, an activity which required strenuous use of his hands. Carl began having trouble with his hands in 1985. He saw the company physicians and was seen by hand specialist Bruce Butler, M.D. Dr. Butler, in a report dated August 10, 1987, rated claimant as having a five percent permanent partial impairment of his right upper extremity due to carpal tunnel syndrome. Dr. Butler went on to state that, following surgical release, a ten percent permanent partial impairment rating is to be expected (exhibit 27, page 2). Claimant continued to work at the John Morrell & Company plant until December 12, 1988 when he went to the plant medical department with complaints regarding his hands. Claimant then went off work. After New Year's Day, he attempted to return to work unsuccessfully. His treatment was then conducted by Quentin J. Durward, M.D. Right carpal tunnel release surgery was performed on March 8, 1989 and left carpal tunnel release surgery was performed on March 22, 1989 (exhibit 31). Dr. Durward rated claimant as having a 20 percent permanent partial impairment of each arm from the carpal tunnel syndrome and surgery which was due to claimant's work activities (exhibits 33 and 35). Claimant has been provided activity restrictions against repeated gripping with his hands and work involving use of a knife or hook. He also had been given restrictions concerning the weights he should handle. Carl returned to work in October 1989 on a four-hour-per-day basis and continued in that limited work activity until apparently injuring his back in early 1990 (exhibits 34, 39, 40, 42, 43, 44 and 51-54). The condition of claimant's hands and arms has also been evaluated by three other physicians. In a report dated October 16, 1989, Leonel H. Herrera, M.D., reported that claimant's hands are fully functional (exhibits 41 and 101). In a report dated November 8, 1989, Pat Luse, D.C., reported that claimant had a 16 percent impairment of his left upper extremity and a 21 percent impairment of his right upper extremity which was equivalent to a 20 percent permanent partial impairment of the whole man (exhibit 48). Orthopaedic surgeon John J. Dougherty, M.D., in a report dated February 20, 1990, rated claimant as having a three percent permanent partial impairment of each upper extremity Page 3 (exhibit 58). Claimant has continued to complain of pain and other symptoms in his hands and arms. Post-surgical EMG tests conducted in February 1990 were interpreted as being normal (exhibit 46). Claimant's involvement in this litigation is reported at several places in the medical records (exhibits 38, 40 and 41; exhibit 55, page 3). It appears as though the claimant's involvement in this litigation has had some impact upon his subjective complaints. Nevertheless, claimant does have well-documented problems with his hands. The impairment ratings in this case are unusually divergent, ranging from a high of twenty percent of each extremity by Dr. Durward to a low of three percent of each upper extremity by Dr. Dougherty. The October 16, 1989 report from Dr. Herrera can even be interpreted as finding no impairment. A twenty percent rating is quite high in relation to the ratings commonly seen in other cases dealing with carpal tunnel surgery. On the other hand, a three percent or zero impairment rating is quite low where there are residual symptoms. It is found that the expected ratings expressed by Dr. Butler in his August 10, 1987 report are in line with the ratings commonly seen in cases of this type where the complaints are comparable to those expressed by the claimant in this case. It is noted that the physicians have generally expressed their ratings in terms of the upper extremity. The term "upper extremity" is normally considered to be synonymous with the term "arm," rather than "hand." It is expected that the physicians have made the appropriate conversion of the impairment from the hand to the arm when expressing their impairment ratings. The employer and its insurance carrier have not filed all the appropriate claim activity reports in these cases. The evidence submitted does not show the precise date that the claimant last worked. It is indicated, however, that he was expected to recover and obtain the ability to work eight hours per day starting February 2, 1990 (exhibits 43 and 44). Reference to other agency records shows Carl Peterson to have been paid benefits in file number 936503 based upon an alleged injury to his back of January 19, 1990 with disability from that injury commencing March 28, 1990. It is found that the release to resume working eight hours per day as made by Dr. Herrera on February 2, 1990 is correct with regard to marking the end of claimant's limited work hours based upon the condition of his hands, despite the subsequent medical restrictions which again imposed a four-hour-per-day limit on his work activities and also despite the fact that claimant did not resume full-time work. conclusions of law It was stipulated in the prehearing report that claimant's disability should be compensated as disability of Page 4 the upper extremities. The Code does not use the term "upper extremity," but rather uses the terms "hands" or "arms." Since claimant condition is bilateral carpal tunnel syndrome, it constitutes one injury rather than two as determined in the decision entered in file number 848648. The compensation should be computed under the provisions of Code section 85.34(2)(s). Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). The claimant's disability commenced December 12, 1988. It was at that time that he began missing substantial periods of work for the condition. The brief attempt to resume employment which commenced in late December 1988 or early January 1989 does not demonstrate a recovery from the prior condition or a new injury. It is therefore concluded that the correct date of injury to be used in this case is December 12, 1988 and that the benefits awarded should be awarded in file number 906408. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). According to Code section 85.34, compensation for permanent partial disability is payable commencing at the end of the healing period. The healing period ends at the earlier of the three specified events, namely an actual return to work, recuperation to the point of being medically capable of returning to work substantially similar to that in which the employee was engaged at the time of injury or achievement of maximum medical improvement from the injury. In this case, Carl Peterson resumed work on a limited basis. He was therefore entitled to temporary partial disability benefits in accordance with Code section 85.33(2) through (4). He continued to recuperate until February 2, 1990 as indicated by Dr. Herrera. The record shows no further improvement of his hands after February 2, 1990. At the end of the period of recuperation, he was then entitled to receive permanent partial disability compensation. It is noted that temporary partial disability benefits are a substitute for healing period benefits. Temporary partial disability benefits are paid while the individual is still recuperating and has not yet achieved the level of recovery which is needed in order for healing period to end. If Carl Peterson resumed work on an eight-hour-per-day basis, he would no longer have been entitled to temporary partial disability benefits since his earnings should have been equivalent to those he was earning at the time of injury and the healing period would have been ended by his resumption of full-time employment. It would also have been ended by maximum medical improvement, even though he never resumed full-time employment. It is noted that an injured employee is not entitled to receive compensation for permanent partial disability based upon an injury at the same time as the individual is receiving healing period, temporary total or temporary partial disability compensation for that same injury. It is therefore concluded that Carl Peterson's entitlement to Page 5 temporary partial disability compensation ended February 2, 1990 and that his entitlement to recover permanent partial disability compensation commenced February 3, 1990. It has been previously found that claimant has a ten percent permanent partial impairment of each upper extremity. By applying a ten percent impairment of each upper extremity under the AMA guidelines pursuant to rule 343 IAC 2.4 and using the appropriate conversion, the result is a 12 percent impairment of the whole person. Under section 85.34(2)(s), this entitles claimant to receive 60 weeks of permanent partial disability compensation. It is noted that he had a five percent preexisting disability of his right hand as established by the prior agreement for settlement. Since that amount preexisted, he is not entitled to recover again for that same disability since the employer has previously compensated him for that disability. This is not a case where the preexisting disability had not been properly compensated by the employer. Apportionment is therefore proper. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa App. 1991); Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984); DeShaw v. Energy Mfg. Co., 192 N.W.2d 777 (Iowa 1971). When the compensable value of the preexisting disability is deducted, namely 9 1/2 weeks of compensation, the claimant is entitled to recovery 50.5 weeks of compensation in this proceeding. Prior to hearing, the employer had paid 9.5 weeks at the stipulated rate of $262.16. The remaining liability is therefore 41 weeks. The record does not contain information which shows whether or not temporary partial disability compensation was paid subsequent to February 3, 1990. If it was, the employer is entitled to credit for the overpaid temporary partial disability against the permanent partial disability award made in this case. Wilson Food Corp. v. Cherry, 315 N.W.2d 576 (Iowa 1982); Iowa Code section 85.34(4). order IT IS THEREFORE ORDERED that, in file number 906408, defendants pay Carl C. Peterson fifty point five (50.5) weeks of compensation for permanent partial disability payable commencing February 3, 1990 at the stipulated rate of two hundred sixty-two and 16/100 dollars ($262.16) per week. Defendants are entitled to credit for the nine and one-half (9 1/2) weeks of compensation previously paid and shall pay the remaining forty-one (41) weeks, all of which are accrued, in a lump sum together with interest pursuant to Iowa Code section 85.30 computed from the date each weekly payment came due until the date it is actually paid. IT IS FURTHER ORDERED that the costs in file number 906408 are assessed against defendants pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that claimant take nothing in file number 933308 and that proceeding is dismissed at Page 6 claimant's cost. IT IS FURTHER ORDERED that defendants file claim activity reports in file number 906408 as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Bryan J. Arneson Attorney at Law 340 Insurance Centre 507 7th Street Sioux City, Iowa 51101 1801.1; 1803; 1806 Filed May 21, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : CARL C. PETERSON, : : Claimant, : : vs. : File Nos. 906408 : 933308 JOHN MORRELL & CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1801.1 It was held that temporary partial disability is a substitute for healing period and that the same events which end healing period also terminate temporary partial disability entitlement. Compensation for permanent partial disability held payable commencing at the end of the temporary partial disability entitlement where the temporary partial disability entitlement was ended by a full-time return to work despite the fact that further recuperation might have occurred subsequently. 1803; 1806 Claimant found to have 12 percent permanent partial disability which under section 85.34(2)(s) entitled him to 60 weeks of compensation based on bilateral carpal tunnel syndrome and surgery. The claimant had previously been paid 9 1/2 weeks of permanent partial disability under an agreement for settlement affecting one of his hands. Such was held a sufficient basis for apportionment. Claimant awarded 50.5 additional weeks after deducting the 9.5 weeks previously paid in another case from the 60-week total disability entitlement which currently existed. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RENEE UNDERWOOD, : : Claimant, : File No. 933323 : vs. : : A R B I T R A T I O N AMOCO OIL COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Renee Underwood, claimant, against Amoco Oil Company, employer (hereinafter referred to as Amoco), who is a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on June 22, 1989. On July 17, 1991, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing from the parties are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Amoco at the time of the alleged injury. 2. If the injury is found to have caused a permanent partial disability, the type of disability is a scheduled member disability consisting of a 4 percent permanent loss of use of the arm entitling claimant to 10 weeks of perma nent partial disability. 3. If permanent disability benefits are awarded, they shall begin as of February 13, 1991. 4. Claimant's gross weekly rate of weekly compensation in the event of an award from this proceeding is $254.40. Claimant is entitled to marital status and two exemptions in computing the compensation rate. As indicated to the parties at hearing, the commissioner has directed that deputies may not honor a stipulated rate of compensation if the rate is inconsistent with the commissioner's rate booklet. Given the stipulations of the parties as to gross income, marital status, and the number of exemptions, the proper rate for an injury in June 1989, according to the Page 2 commissioner's rate booklet, is $167.30, not $167.90, as stipulated. Therefore, the proper rate will be used for the purposes of this decision. 5. With reference to the medical bills submitted to claimant at hearing, it was agreed that the providers would testify that they were fair and reasonable. It was further agreed that these bills were causally connected to the medical condition upon which the claim is based but the issue of the causal connection of the condition to a work injury remained an issue to be decided. issue The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disability benefits; III. The extent of claimant's entitlement to medical benefits; and IV. The extent of claimant's entitlement to additional benefits for any unreasonable denial of the claim. findings of fact Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant places claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant, a 29-year-old high school graduate, worked for Amoco at the credit card center in Des Moines, Iowa, from July 1988 until December 28, 1989, at which time she left her employment upon the advice of physicians. Her duties consisted primarily of using her right hand to enter data into computers using a keyboard. Her normal work week consisted of eight hours per day, five days a week. Prior to her employment at Amoco, claimant worked for another company in which she also used her right hand to operate a 10 key adding machine. She previously worked in various summer clerical jobs before as a receptionist, which included filing and copying duties. She also has previously worked in a day care center as a teacher of three year olds. At the time she was hired by Amoco, claimant had no functional impairments or ascertainable disabilities. This finding is based upon claimant's uncontroverted testimony at hearing and the fact that she passed a pre-employment Page 3 physical before being hired at Amoco. On or about June 22, 1989, claimant suffered an injury to her right hand which arose out of and in the course of her employment at Amoco. This injury initially consisted only of the development of a ganglion cyst of the right wrist. However, the removal of this cyst and the development of scar tissue subsequent to removal led to a condition called carpal tunnel syndrome. Claimant's uncontroverted testimony established that in January 1989, she began to experience a small lump on the right wrist. Gradually, this lump grew and began to interfere with claimant's work. The lump was located on the inside of her right wrist just below the base of her thumb. This lump caused pain when claimant would rest the wrist on a table to perform her keyboard duties. The problem grew worse over time and she eventually sought treatment from her family physician. Claimant testified that she reported the development of this lump on her wrist to her team leader. This testimony is uncontroverted and found to be true. Claimant testified that she was told to deal primarily through her team leader rather than directly with her supervisor. This testimony is likewise uncontroverted and found to be true. Claimant's family physician took claimant off work on June 21, 1989 and referred her to a specialist, Scott B. Neff, D.O., an orthopedic surgeon. Dr. Neff diagnosed a ganglion cyst which he surgically removed on June 22. Claimant remained off work upon the advice of Dr. Neff fol lowing the surgery and also under directives issued by the Amoco company physician, Kevin Smith, M.D., until September 12, 1989. At this time, she began to work part-time over a period of sixteen weeks from September 12, 1989 through January 1, 1990. After January 1, 1990, she was placed on medical leave due to her inability to continue working as a result of hand pain upon the advice of physicians. The hours worked for each week during this period of part-time employment is stipulated to by the parties and set forth in the Conclusions of Law portion of this decision. The parties also stipulated that claimant reached maximum healing on February 12, 1990. During claimant's healing period, claimant was treated and evaluated by claimant's family physician as well as Dr. Neff, Dr. Smith (specialty unknown), and an orthopedic surgeon, Sinesio Misol, M.D. Thereafter, claimant was eval uated by Paul K. Ho, M.D., an orthopedic surgeon, Robert C. Jones, M.D., a neurosurgeon, and Jerome G. Bashara, M.D., another orthopedic surgeon. Of these physicians, Dr. Neff, Dr. Ho and Dr. Jones all believe that claimant's ganglion cyst probably was caused by or at least aggravated by claimant's repetitive hand work at Amoco. Dr. Misol and Dr. Bashara did not provide causal connection opinions. Dr. Smith opined that the ganglion cyst was not related to claimant's work. No report of the views of claimant's personal physician appears in the record of this case. Dr. Neff and Dr. Ho are board certified specialists in orthope Page 4 dic surgery. The certified status of Dr. Jones, if any, is unknown. Although the plant nurse testified at hearing that Dr. Smith is a specialist in occupational injuries, it is un known if this is a recognized medical specialty or only a limitation on the type of patient care. The finding of a work injury is based upon the views of the three specialists in this case, one of which was Dr. Neff, the treating ortho pedic surgeon. The finding that claimant suffers from carpal tunnel syndrome is based upon the views of Dr. Ho, Dr. Jones and Dr. Bashara. Dr. Ho and Dr. Jones felt that the condition was the result of a combination of claimant's repetitive work at Amoco, both before and after the cyst surgery, and the formation of scar tissue as a result of the removal of the cyst. Consequently, they felt that the condition was work related. Nothing appears in the record to show what Dr. Bashara may have felt about causation. Dr. Neff and Dr. Misol rejected diagnoses of carpal tunnel syndrome but of fered no other explanation of claimant's continuing prob lems. Dr. Neff indicated that claimant should return to work in February 1990 and that she could use her wrist in a repetitive fashion if she were given a wrist to use. It is unclear how Dr. Neff could arrive at such a conclusion when claimant was unable to continue even part-time work after a sixteen week effort to return to work in the fall of 1989. Dr. Misol stated that he was not impressed with claimant's case due to a lack of objective abnormalities. As claimant's complaints are found credible, Dr. Misol's views are not convincing. Therefore, based upon the more credible views of Dr. Ho and Dr. Jones, it is found that the work in jury of June 22, 1989 is a cause of claimant's right carpal tunnel syndrome and her continuing problems at the present time. The work injury of June 22, 1989 is a cause of a 4 percent permanent partial impairment to the right arm. Claimant is also permanently restricted from performing repetitive work with his right arm. This permanency is the result of the carpal tunnel syndrome. These findings are based upon the views of Dr. Jones and Dr. Bashara. Dr. Jones is the author of the permanent restrictions and Dr. Bashara is the only physician to have rated claimant's per manent partial impairment. The contrary views of Dr. Neff and Dr. Misol are rejected due to the same reasons given above for the rejection of their views on the nature of claimant's continuing problems. Claimant's testimony as to the extent of the loss of use of her arm is found credible and her views are more consistent with the opinions of Dr. Jones and Dr. Bashara. On February 28, 1990, in a letter addressed to claimant, defendant denied claimant's claim for compensation benefits as a result of the ganglion cyst condition. At that time, Dr. Smith, again whose medical specialty is unknown, had opined that the ganglion cyst condition was not work related and no other physician had rendered an opinion on the matter. At that time, Dr. Neff had only rendered an opinion that claimant had no permanent impairment and he felt that she was healthy enough to return to work. Page 5 However, by July 1, 1990, three specialists having special ties in orthopedic surgery or neurosurgery, including Dr. Neff, had disagreed with Dr. Smith and opined that the cyst condition was at least aggravated by claimant's work at Amoco. No other specialist rendered opinions on this issue. On the issue of existence of carpal tunnel syndrome and the permanency of claimant's problems, the specialists are divided. As of the time of the hearing of this case, defen dant has not paid any weekly benefits to claimant. conclusions of law I. Claimant has the burden of proving by a preponder ance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. It is not necessary that claimant prove her disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In the case sub judice, claimant has established by a preponderance of the credible medical evidence that she suffered a work injury consisting of not only a ganglion cyst but causally connected carpal tunnel syndrome. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unsched uled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the com pensation payable is limited to that set forth in the appro priate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation Page 6 payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case sub judice, it was found that claimant suffered a 4 percent permanent loss of use of her arm. Based upon such a finding, claimant is entitled to as a matter of law to 10 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(n) which is 4 percent of 250 weeks, the maximum allowable for an injury to the arm in that subsection. As claimant has established entitlement to permanent partial disability, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34(1) from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work or the work she was performing at the time of injury; or, it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. It was found that claimant was totally off work as a result of her injury for two periods of time. She is entitled to temporary total disability benefits from June 21, 1989 through September 11, 1989, and again from January 2, 1990 through February 12, 1991, a total of 70 weeks. In an attempt to return to work, claimant worked part- time between September 12, 1989 and January 1, 1990. Claimant is therefore entitled to temporary partial disabil ity benefits under Iowa Code section 85.33(4). These bene fits consist of two-thirds of the difference between claimant's actual weekly wages and her customary gross weekly rate. Claimant's entitlement to these benefits is calculated as follows: Period of Temporary Partial Disability: Claimant worked part-time from September 12, 1989 through December 28, 1989 (over a period of 16 weeks). The first week and each week thereafter began on a Tuesday and ended on the following Monday. GWE = Gross weekly earnings per stipulation: $254.40. Amount Amount Hours Earned Earned x (66.67%) Week Worked ($6.36/hr.) Less GWE ____TPD___ 1 16 101.76 152.64 103.10 2 22 139.92 114.48 76.32 3 16 101.76 152.64 103.10 4 12 76.32 178.08 118.73 5 22 239.92 114.48 76.32 6 4 25.44 228.96 152.64 7 20 127.20 127.20 84.80 8 20 127.20 127.20 84.80 9 0 0 254.40 167.31 10 6 38.16 216.24 144.17 11 20 127.20 127.20 84.80 12 4 25.44 228.96 152.65 13 8 50.88 203.52 135.69 Page 7 14 12 76.32 178.08 118.73 15 0 0 254.40 167.31 16 4 25.44 228.96 152.65 Total Temporary Partial Disability $1,923.13 The last week began on December 26, 1989 and ended on January 1. Therefore, temporary total disability begins on January 2, 1990. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is enti tled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendant to make such pay ments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, the parties stipulated in the pre hearing report that the expenses sought by claimant were re lated to claimant's arm condition. The dispute was the causal connection of the arm condition to the work injury. As it was found that the arm condition is work related, the expenses set forth in exhibits 4 and 5 will be awarded under Iowa Code section 85.27 except for the costs of the prepara tion of the letter and medical reports which constitute litigation costs. These costs are also awarded to claimant but not as a medical expense. IV. Finally, claimant seeks additional weekly benefits under Iowa Code section 86.13. The unnumbered last para graph of this code section states that if there is a delay in commencement of benefits without reasonable and probable cause or excuse, the industrial commissioner may award extra weekly benefits in an amount not to exceed 50 percent of the amount of the benefits that were unreasonably delayed or denied. Defendants may deny or delay benefits only when the claim is fairly debatable. Saydel v. University of Iowa Physical Plant, Appeal Decision, November 1, 1989. When the claim is "fairly debatable," the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. In reviewing the propriety of defendant's actions, Iowa Code section 507B.4(9) lists unfair claim practices which are also useful as a statement of public policy on what conduct is unreasonable. It is concluded in this case that as a matter of law defendant unreasonably withheld claimant's entitlement to temporary total disability and temporary partial disability benefits for the period of time between June 21, 1989 and February 28, 1990. At the time of the initial claim denial letter of February 28, 1990, defendant had the right to rely upon the views of Dr. Smith, especially when Dr. Neff and Dr. Misol never specifically rendered an opinion on the matter. However, by July 1, 1990, three specialists, in cluding the treating physician, Dr. Neff, concluded that the ganglion cyst was work related. At that point in time, the claim for temporary total disability and temporary partial disability was no longer fairly debatable. The views of three specialists cannot be fairly challenged by a single Page 8 view of a general practitioner, especially when one of those specialists is the treating physician. It is further concluded that 10 additional weeks of compensation is appropriate as a penalty in this matter for defendant's misconduct. These benefits shall be payable from July 1, 1990, the time when the claim became no longer fairly debatable. With reference to the denial of permanency benefits, the issue of permanency and the extent of any permanency has always been fairly debatable in this case. Therefore, the claim for penalty benefits for a failure to pay permanency benefits is denied. order 1. Defendant shall pay the claimant ten (10) weeks of permanent partial disability benefits at the rate of one hundred sixty-seven and 31/100 dollars ($167.31) per week from February 13, 1991. 2. Defendant shall pay the claimant healing period benefits from June 21, 1989 through September 11, 1989, and again from January 2, 1990 through February 12, 1991, at the rate of one hundred sixty-seven and 31/100 dollars ($167.31) per week. 3. Defendant shall pay temporary partial disability benefits as set forth in "Appendix A" of this decision. 4. Defendant shall pay the medical expenses as set forth in exhibits 4 and 5, except for the litigation costs. Claimant shall be reimbursed for any of these expenses paid by her. Otherwise, defendant shall pay the provider directly any lawful late payment penalties imposed upon the account by the provider. 5. As a penalty for unreasonable denial of temporary total disability and temporary partial disability benefits, defendant shall pay to claimant an additional ten (10) weeks of weekly compensation at the rate of one hundred sixty- seven and 31/100 dollars per week from July 1, 1990. 6. Defendant shall pay accrued weekly benefits in a lump sum. 7. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 8. Defendant shall pay the costs of this action, pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. This award also includes the costs of the letter and medical reports which do not constitute proper medical expenses under Iowa Code section 85.27. 9. Defendant shall file an activity reports upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Page 9 Signed and filed this _____ day of August, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Harry W Dahl Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 Mr Robert L Ulstad Attorney at Law 1031 Central Ave P O Box 1678 Ft Dodge IA 50501 5-1803; 4000.2 Filed August 19, 1991 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : RENEE UNDERWOOD, : : Claimant, : : vs. : : File No. 933323 AMOCO OIL COMPANY, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-1803 Extent of permanent partial disability. 4000.2 Additional 10 weeks of benefits awarded as a penalty. It is concluded that defendant acted unreasonably in relying upon the views of its company physician, a general practitioner, when three specialists, whose opinions were not challenged by any other specialist, disagreed with the physician's opinion and felt that the condition was work related. before the iowa industrial commissioner ____________________________________________________________ : RENEE UNDERWOOD, : : Claimant, : File No. 933323 : vs. : : M O D I F I C A T I O N AMOCO OIL COMPANY, : : O F Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ Paragraph 3 of the Order portion of the arbitration decision dated August 19, 1991 is modified by striking the words "Appendix A" and inserting in lieu thereof the following: "the chart on page 7." Signed and filed this _____ day of August, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Harry W Dahl Attorney at Law 974 73rd St STe 16 Des Moines IA 50312 Mr robert L Ulstad Attorney at Law 1031 Central Ave P O Box 1678 Ft. Dodge IA 50501 Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : LARRY ETHELL, : : Claimant, : : vs. : : File Nos. 858197/933329 3 M COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL, : : 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 May 21, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Defendants raise on appeal the issue whether certain testimony of defendants' witness was improperly excluded. A fair reading of the transcript indicates that defendants' witness, a vocational rehabilitationist, had generated a Bureau of Labor salary survey and had used that information in part to produce a written report. The deputy disallowed defendants' offering by live testimony information that could not have been offered in writing. (Presumedly, the information or report would not have been allowed into evidence as it would not have been served on the claimant in a timely manner.) Defendants' witness offered testimony as to various types of jobs that might be available to claimant and the pay range of those jobs (transcript, pages 128-129). Defendants argue in their appeal brief that the ruling prohibited testimony about specific examples of available jobs for claimant. However, defendants' witness did give testimony on specific jobs that might be available to claimant. Defendants were allowed to offer and did give testimony on available employment suitable for claimant. The deputy's ruling apparently only precluded a limited portion of the witness' testimony. There was no error in the ruling which precluded offering evidence indirectly that would not have been admissible directly. Even if the ruling were in error, the error would be harmless. There is Page 2 evidence in the record that there is suitable employment available to claimant and the potential pay for the employment. Those facts, as well as all other relevant facts, support the finding that claimant currently has a present cumulative industrial disability of 40 percent. A claimant's loss of earnings, or in this case claimant's current earnings, is only one factor used to determine claimant's loss of earning capacity. Claimant and defendants shall equally bear the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Larry D. Spaulding Attorney at Law 801 Grand Ave., Ste 3700 Des Moines, Iowa 50309-2727 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 Page 1 51100 51802 51803 53002 53700 Filed December 26, 1991 Byron K. Orton MDM before the iowa industrial commissioner _________________________________________________________________ : LARRY ETHELL, : : Claimant, : : vs. : : File Nos. 858197/933329 3 M COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 51100 51802 51803 Claimant sustained an injury to the low back which resulted in surgery and 10 percent impairment. At age 49, with excellent experience as an industrial electrician, claimant was reemployed by employer at same job. Fifteen percent industrial disability was awarded. Claimant reinjured his back doing same job and incurred another surgery with a 20 percent combined impairment and 35-pound lifting restriction. Employer did not reemploy, but offered vocational rehabilitation. Claimant entered school, but quit due to finding a higher paying job as compared to the last injury. Claimant awarded an additional 25 percent due to loss of access to job market notwithstanding an increase in actual earnings. Claimant was motivated. 53002 Claimant's weekly rate of compensation excluded night shift differential as it was a premium pay. Weeks involving illness were included as claimant was compensated for the leave. Short weeks and holidays were excluded as they did not adequately represent claimant's earnings. 53700 Defendants' witness, a vocational rehabilitationist, was not allowed to read from a report at time of hearing. Deputy did not abuse discretion in not allowing evidence indirectly that would have been disallowed if offered directly. Because witness gave testimony from memory about available employment, it was harmless error for deputy to disallow reading of an untimely report. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BETTY LASHLEY, : : Claimant, : : vs. : : File No. 933383 VAN WYK, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Betty Lashley against Van Wyk, Inc., her former employer, and its insurance carrier Cigna Insurance Company based upon an injury that occurred on October 30, 1989. The issues to be determined are fixing the rate of compensation and determining the rate of permanent partial disability, including whether the permanency is scheduled or one which should be compensated industrially. The case was heard at Mason City, Iowa, on July 15, 1993. The evidence consists of joint exhibits 1 through 11 and testimony from Betty Lashley and Darla Van Wyk. FINDINGS OF FACT Betty Lashley is a 59-year-old married woman who was working as a team semi driver with her husband Russell when the truck went off the road, overturned, and Betty was injured. The injury occurred in Florida and her initial care was provided by E. Tobias, M.D. Betty was hospitalized where it was found that she had an avulsion fracture of the humeral head of her left humerus and that the head was dislocated into the subscapular area and impacted. Open reduction and fixation surgery was performed. It was necessary to pry the head of the humerus back through the capsular tear. The surgery included repair of the medial capsule and debridement of the inferior glenoid (exhibit 9, pages 3-4). Following the surgery Betty returned to Iowa where she entered into a course of medical care. She underwent therapy and eventually attempted to return to work. At the time of the attempted return she complained of pain from bouncing around in the truck. The attempt was unsuccessful. Following the unsuccessful return to work Betty Page 2 commenced receiving care from Sterling Laaveg, M.D., a Mason City, Iowa, orthopedic surgeon. At his initial examination on November 16, 1990, Dr. Laaveg noted the presence of the incision on claimant's left shoulder and also noted atrophy of the anterior deltoid, one of the muscles of the shoulder. He measured the range of motion of the shoulder and found it to be mildly limited (ex. 6, p. 1). Dr. Laaveg felt that claimant might have a torn rotator cuff but an arthrogram of the shoulder was interpreted as being normal. He then formed the opinion that she had subacromial bursitis (ex. 6, p. 2). Therapy and a subacromial injection were provided without success. On January 28, 1991, it was decided that further surgery would be performed (ex. 6, p. 4). On February 19, 1991, claimant's shoulder was examined under general anesthesia, arthroscopy of the shoulder was performed and minor debridement of the glenorhumeral joint was performed. The metal plate and screws which had been used to stabilize the fractured head were removed (ex. 6, p. 5). On June 10, 1991, it was reported that Betty had reached maximum improvement and that she had a permanent partial impairment of 20 percent of the left upper extremity. It was recommended that she find an easier job than truck driving (ex. 6, p. 6). Following recuperation from the 1991 surgery Betty was placed in a work conditioning program and eventually attempted a return to truck driving. She was again unsuccessful due to her complaints of pain. Her employer, Van Wyk, Inc., made a good faith reasonable effort to accommodate her limitations. Betty had the assistance of Deanna Harris, a rehabilitation specialist. Despite the forgoing Betty did not resume employment. Her husband's job changed and took him to western Iowa where she had moved in order to be with him. At the present time Betty works part-time providing care for an elderly couple. She has declined offered vocational assistance for seeking full-time employment. Betty has not made a serious effort to obtain replacement employment. Betty had worked for Van Wyk, Inc., only a few weeks at the time of the accident. Prior to then she had been employed in the computer room of Iowa Kemper Insurance Company. Prior to that she had been a filing clerk for the insurance company. She had been a housewife for approximately ten years before beginning work in 1979 at Winnebago Industries where she sewed seats for motor homes for approximately one and one-half years. The most Betty has ever earned from any of her employments was in the range of $16,000 per year. The parties stipulated to Betty's earnings and to what the rate of compensation should be after resolution of the dispute concerning what is shown on the pay sheets as "per diem." Claimant was paid as a truck driver by Van Wyk based upon a percentage of the fees generated by the loads which she hauled. One-third of the percentage was designated to be an expense allowance. This means that for purposes of Page 3 taxes, that neither Betty nor the employer paid FICA tax on that portion of her earnings. It was not subject to income tax for Betty and the employer was still able to obtain a tax deduction for paying it to her. Though it was called "per diem" it was really not a "per diem" allowance since the term "per diem" literally translated means per day. The amount of the so-called per diem allowance was not shown to be related to the personal living expenses incurred by the employee. It was related entirely to the amount of work the employee provided, the same as the portion of the earnings which were treated as wages and were subject to all taxes. There was no explanation in the record showing why one-third was treated as per diem rather than perhaps one-fourth or one-half. No relationship was shown between the amount that was designated as per diem and the actual expenses involved. Under the system which was used, it would be possible for the claimant to have been on the road or driving and incurring personal expenses on days for which there would have been no wages payable if, for example, there were to be a layover or a considerable number of miles driving without carrying a load. If the claimant incurred motel expenses, with the authorization of the employer, she was reimbursed directly for those motel expenses. CONCLUSIONS OF LAW The first issue to be addressed is the issue concerning the rate of compensation. Section 85.61(3) clearly excludes reimbursement and expense allowances from the definition of gross earnings. The unusual factor in this case is that what is called a per diem or expense allowance is based directly upon the amount of work performed and the amount of earnings generated. It has no relationship to actual expenses. It is a misnomer to call it "per diem" because it is paid based upon the amount of work performed rather than per day or the amount of expense incurred. Black's Law Dictionary, 6th ed, 1990, defines per diem as "by the day, an allowance or amount of so much per day." The method of computing a per diem allowance used in this case has been seen in other cases. It is apparently being used somewhat regularly in the trucking industry. It is a device used to avoid taxes. It is not, however, a bona fide expense allowance or reimbursement of expenses. It is not a per diem allowance because it is not paid by the day. An allowance such as $15 per day or $100 per week as was the situation in the case Norton v Stylecraft, Inc., I State of Iowa Industrial Commissioner Decisions IV, 1001 (App. Dec. 1985) is an example of a "per diem" expense allowance and is clearly distinguishable from the current situation in which some portion of the earnings of the employee are arbitrarily designated as "per diem" and then both the employer and the employee benefit from doing so in the nature of reduced FICA taxes. The employee also benefits from reduced income taxes. While the Internal Revenue Service may very well allow this type of a procedure to avoid taxation for FICA or income tax purposes, such does not control whether or not Page 4 the payment constitutes gross earnings under the Iowa Workers' Compensation Act. It must be remembered that section 85.18 prohibits any contract, rule or device which relieves the employer, in whole or in part, from any liability created by chapter 85 of the Code. Simply labeling a part of a person's earnings as "per diem" or an "expense allowance" does not make that portion of the earnings an actual, bona fide per diem or expense allowance. For a payment to be a bona fide per diem or expense allowance there must be some relationship between the amount of the allowance and the amount of the expenses for which it is purportedly related. It need not be a direct reimbursement type of system such as what the employer in this case uses for motel bill charges but there must be some rational relationship between the expense allowance and the expenses for which it is intended. If defendants were correct, it would be possible for them to designate 75 percent of the earnings as a per diem allowance. It would be possible for them to state that the employee was being paid the hourly federal minimum wage and that all of the excess above the federal minimum wage amount was an expense allowance. It is concluded that the practice used in this case of labeling one-third of the employee's earnings as a per diem expense allowance violates section 85.18 of the Code. It is a device which reduces the employer's liability to the injured employee. The employee's entire gross earnings, before deduction of any so-called per diem allowance, is to be used in determining the rate of compensation. Phillips v. C and K Transport, file number 844999 (App. Dec. May 26, 1993); Minnick v. C.R.S.T., Inc., file number 865832 (Dec. 21, 1989). In accordance with the stipulation made by the parties, it is therefore determined that claimant's gross weekly wage is $357 and her rate of compensation is $228.60 per week. It should be noted that in order to provide the stipulated rate, the earnings should be $358 per week. 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 Page 5 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). In this case there is no express expert medical opinion which attributes the problems in Betty's shoulder to the truck accident which is the subject of this case. It is noted, however, that expert opinion is not always necessary in every case. This case has unrefuted evidence of a lack of any prior shoulder problems. It has a very severe acute trauma which is well documented in the medical records. The physicians have all relied upon the history of injury provided and none have given any indication that anything other than the accident which is the subject of this case is responsible for causing Betty's shoulder problems. There is not a scintilla of evidence in the record which even suggests that the shoulder problems might have resulted from any other causative factor. The statement by Dr. Emerson in his January 16, 1992 note, which states, "Etiology of symptoms unknown." is interpreted as meaning that he does not know the physiological origin of the symptoms. It is not construed as meaning that he does not attribute those symptoms to the truck accident. Further, in view of the extensive damage, particularly the impaction of the humeral head into the soft tissues of the shoulder portion of the shoulder joint there is every reason to believe that some portion of the symptoms are due to damage to the socket portion of the shoulder joint, rather than being entirely due to the fracture of the humeral head. In fact the medical evidence indicates that the humeral fracture has healed well. In this case it is determined that the evidence is sufficiently strong to show that it was the original accident and trauma which is responsible for the current impairment and disability which limits Betty's use of her shoulder. The next issue to be addressed is whether this is a scheduled injury to the arm. The original operative report from Dr. Tobias clearly shows serious damage to the glenoid cavity of claimant's shoulder as well as a fracture of the humerus. The subsequent surgery performed on February 19, 1991, included debridement of the glenoid humeral joint. The range of motion tests shown in the medical records are the type of tests used to measure function of the shoulder in the AMA Guides to the Evaluation of Permanent Impairment, 3rd ed (revised), section 3.1(g) pages 34-37. In Stedman's Medical Dictionary, 4th ed., 1982, the term glenoid is defined as "...socket of a joint...; denoting the articular depression of the scapula entering into the formation of the shoulder joint." From all of the references found in the medical records it is abundantly clear that the initial trauma and initial serious injury in this case was not limited to the arm. The records seem to indicate that the fracture of the humeral head has healed acceptably well. Claimant continues Page 6 to have problems involving the injured shoulder. The limitations objectively measured by the medical practitioners in the form of range of motion studies are measurements of shoulder function. As indicated by the Iowa Supreme Court in the case Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986), the term "lower extremity" has a different meaning than the term "leg." It was also noted that though the function of a hip is to provide articulation to the leg, that impairment of the function of the hip is not a scheduled injury of the leg. The same reasoning would be true if the court were dealing with an "upper extremity" since the term has a different meaning than that statutory term of "arm." It includes the shoulder. Even though the function of the shoulder impacts upon the ability to make use of the arm, disability which has its origin in the shoulder joint is not a scheduled disability of the arm. In the AMA Guides, it is noted that the shoulder is responsible for 60 percent of the function of the upper extremity. The other 40 percent is located in the elbow. The undersigned recently wrote extensively on the issue of whether an injury is a scheduled injury of the arm or an unscheduled injury of the shoulder in the case Weavill v. John Morrell and Co., file number 903186, (July 22, 1993). That analysis is incorporated herein. In this case the glenoid cavity was injured, damaged and deranged. There is atrophy of the anterior deltoid muscle. She has been diagnosed with bursitis. Clearly, the disability in this case is not confined to the claimant's arm. It is therefore concluded that the permanent disability and permanent impairment in this case is not restricted to Betty Lashley's arm. Part of the disability and impairment is located in her shoulder. Accordingly, the disability is to be evaluated industrially. 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 Page 7 (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. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Betty has not made a serious effort to restore herself to the level of earnings which she enjoyed while employed by Van Wyk, Inc. In fact, she has declined to seek retraining or other full-time employment in favor of her current job. That fact alone does not mean that she has no disability or that the disability is trivial. It simply means that her current level of earnings is not an accurate indicator of her actual earning capacity. When all the material factors of industrial disability are considered, it is determined that Betty Lashley has a 25 percent permanent partial disability as a result of the October 30, 1989 injury. ORDER IT IS THEREFORE ORDERED that defendants pay Betty Lashley one hundred twenty-five (125) weeks of compensation for permanent partial disability at the rate of two hundred eighty-eight and 60/100 dollars ($288.60) per week payable commencing June 11, 1991. It is further ordered that defendants pay claimant the difference in weekly compensation between the rate determined in this decision and the weekly benefits which had been previously paid for healing period and temporary partial disability. Defendants are entitled to a credit for the dollar amount of all weekly compensation previously paid. It is further ordered that all accrued unpaid amounts be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. It is further ordered that the costs of this action are Page 8 assessed against defendants. Signed and filed this ____ day of August, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. H.P. Folkers Attorney at Law 5 W State St. Mason City, Ia 50401 Mr. Charles Cutler Attorney at Law 729 Insurance Exchange Bldg Des Moines, Iowa 50309 1803.1 3001 Filed August 16, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BETTY LASHLEY, Claimant, vs. File No. 933383 VAN WYK, INC., A R B I T R A T I O N Employer, D E C I S I O N and CIGNA INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 1803.1 Where original injury was fracture of the humeral head of the arm and dislocation of the shoulder, including impaction of the humeral head into the soft tissues of the socket of the shoulder, it was held that the injury was not a scheduled injury limited to the arm. 3001 Where one-third of a truck driver's gross earnings was arbitrarily designated by the employer to be an expense allowance, thereby avoiding various taxes, such was not held to be an expense allowance within the provisions of section 85.61(3) since the so-called "per diem" was based upon the amount of work performed. It was not a daily allowance or a weekly allowance of any type. There was no demonstrated relationship between the amount of the so-called per diem and the amount of the expenses for which it was purportedly given. The practice was therefore held to be a violation of section 85.18 as being a device used to reduce the employer's liability.