Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BETTY WHARTON, : : Claimant, : : vs. : : File No. 935160 ARMOUR FOOD COMPANY, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ This case came on for hearing on June 19, 1992, at Mason City, 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 July 17, 1989. The record in the proceedings consists of the testimony of the claimant and Daryl Johnson; claimant's exhibits 1 and 2; and, defendants' exhibits A through H. ISSUES The issues for resolution are: 1. Whether there is a causal connection as to claimant's permanent disability and his July 17, 1989 injury; 2. The extent of claimant's permanent disability and entitlement to disability benefits; and, 3. The claimant's rate per week at which any benefits would be paid, if liability is found. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 35-year-old high school graduate who has had no further post-high school education. Claimant related her work history prior to beginning work with defendant in April 1986. This prior work consisted of being a nurse's aide and working as a motel housekeeper. Claimant had taken off between 1980 and her beginning work for defendant in 1986 to care for her five year old and a new baby. She indicated she returned to work as she needed the money. Claimant related that she was in good health at the time she began work with the defendant. She related her duties with defendant. She was moved into a new department on July 17, 1989, and on that day indicated that she was taking the one pound boxes of bacon and putting them in a box up to a 25 pound limit and then pushing them through a Page 2 machine. When she did this, she felt as if something broke in her back. She notified defendant and eventually went for physical therapy and bed rest. As the parties stipulated, she was off initially from July 18, 1989 through July 31, 1989. She was to do no lifting and little activity but mainly bed rest. Claimant testified as to some of the treatments and physical therapy she had and the doctors' appointments. Claimant testified that when Kenneth B. Washburn, M.D., released her, she did not think she was ready to return to work as she still had back pain. She did indicate that she thought that she would be returning to the job she had on July 17, 1989, in the bacon department (also referred to as a ready grill department), as she only needed to lift 17 pounds in this department, but instead was put on a light duty job involving typing and labeling. Claimant related that on January 23, 1991, she entered into a rehabilitation plan agreement whereby the rehabilitation consultant was going to find claimant another job placement because of claimant's restriction. The consultant did not think claimant would be going back to work for the defendant. Claimant indicated she did not think she could go back with her restrictions. Claimant indicated she thought the work hardening program she was going through was with the intent of putting her back to work at Armour. Claimant indicated she was not accepting the fact that she could not go back to her prior job at Armour but indicated defendant thought the restrictions were a problem. Claimant testified as to the jobs she looked for and how she looked for them in the various places in which she went to look. She was told by the consultant to keep track of her mileage in connection with the job search as they would pay for it. It eventually turned out that they said they couldn't pay mileage because of the Minnesota law and not the Iowa law. As the parties stipulated, claimant again returned to work on August 1, 1989 to but not including September 26, 1989, on light duty work. Claimant was off again on September 26, 1989 through October 8, 1990. She testified as to therapy she received for approximately eight months. Claimant indicated that she thought there were some light duty jobs at defendant she could go back to. Joint exhibit 1, page 148, is a March 28, 1991 letter claimant received terminating her. Claimant testified that she did not work for defendant from the date of her accident to the date of termination, October 8, 1990, except for the period of time between her healing periods, namely, August 1, 1989 up to September 26, 1989, and during this period she only performed light duty work for defendant. Claimant emphasized she never got a job through her job search nor did she ever have an interview. Claimant said she had a good relationship with the rehabilitation consultant until they violated their Page 3 agreement to pay her mileage for her job search. Claimant indicated that if she was still working at Armour she would be making around $9 per hour plus having dental, health and life insurance. Claimant acknowledged she understood she was surveilled and indicated that her activities shown were not inconsistent with her claim at this hearing. She then indicated that she never saw the surveillance tape but only knows what her attorney orally told her. Although claimant seemed to indicate there was no work she could return to at Armour that she had done prior to the July 17, 1989 injury, defendant's exhibit C, pages 6 and 7, she testified at the hearing that she still thought defendant could have worked with her and got her back to regular duty work. She indicated she didn't ask and it appeared that the defendant did not ask her to come back. It is also evident that the vocational rehabilitation people did not get her a job within her restrictions. Claimant related the various things she either cannot do or she does that irritate her back and increases her pain. She indicated she avoid many of those things that cause her problems. Claimant testified she has gotten no interviews from her job applications. She said they have never mentioned her back condition but she believes her condition is an impediment. Daryl Johnson testified that he is the current manager of the human resources department with defendant. This department has duties concerning work and rule compliance and accommodation of injured workers, etc. Mr. Johnson knows claimant and heard her testimony. He indicated she truthfully related her duties she performed while working for defendant. Mr. Johnson indicated when there are vacancies at defendant's, they are posted on the bulletin board for five days. He indicated defendant has a seniority system. Mr. Johnson indicated that claimant could bid only within her department on a job vacancy. He emphasized it would not be easy to bid out of that department into another department. Mr. Johnson said that claimant has not come to him as he recalls as to bidding out. He does not believe claimant can do any job in her department due to her restrictions given by Dr. Washburn. Mr. Johnson said that Armour has no permanent light duty jobs. The termination letter (Claimant's Exhibit 1, page 148) was done in accordance with the union contract. He said that if a person is off work 18 months due to a work-related injury, their seniority and employment is terminated. He said they don't presently have work within claimant's restrictions. The undersigned notes that claimant's exhibit 1, page 148, has also been referred to it as exhibit 108, mainly because it has an exhibit sticker 108. The undersigned has consistently referred to it as Page 4 page 148 even though in the record of testimony it may have at times been referred to as exhibit 108. It is obvious in looking at the exhibits in the chronological order that it is in fact to be page 148. Mr. Johnson indicated that claimant would be making $8.75 per hour doing the work she was doing on July 17, 1989, plus there would be union security, health, life insurance, etc. The Park Clinic, Mason City records of the doctors is reflected in claimant's exhibit 1, pages 1-58. The particular medical notes of the various doctors at the clinic are mainly involved in pages 1 through 13. The October 2, 1990 notes, page 11 of claimant's exhibit 1, of Kenneth B. Washburn, M.D., indicate that he did not think along with Michael W. Crane, M.D., that claimant needs any more evaluation or workup. Dr. Washburn felt that claimant reached the point of maximal improvement as far as her back situation is concerned. The doctor's notes over a period of time do reflect that claimant, pursuant to work hardening program, also developed right tennis elbow, chronic recurrent. His diagnosis on October 2, 1990, also was that claimant had a sacroiliac strain, chronic and recurrent. The doctor filled out a physical capacity form in relation to claimant's back. He indicated that this does not allow her to lift over 30 pounds nor to sit for more than 30 minutes at one time and does not allow her to stand for more than 45 minutes in one place, but he did give her a limitation of no walking for more than one hour at a time before she should sit down and relax. He further indicated that she should not be reaching over her head more than 20 pounds nor should be pushing and pulling any carts that weight over 60 pounds (Cl. Ex. 1, p. 11). On October 12, 1990, Dr. Washburn felt that claimant had a 1 percent disability of the whole person secondary to chronic recurrent sacroiliac strain. He did not expect any permanent disability from the upper extremity problem (Cl. Ex. 1, p. 12). The parties stipulated that claimant was off work and paid healing period benefits for the second period of time that began September 26, 1989 through October 8, 1990. Claimant's exhibit 1, page 66, reflects Dr. Washburn's June 25, 1990 letter in which at that time he did not feel any further work hardening program would benefit claimant. He indicated she was not eligible for light duty because of union rules and therefore sent her home to try to keep in as good as shape as possible. He further indicated that if she has not improved by the next time he will probably give her some permanent restrictions as to her ability to work and give her an impairment rating at that time. As referred to earlier, he then gave an impairment rating and restrictions on October 2, 1990. He also indicated that he was going to get an additional opinion from Dr. Crane who is also in the Park Clinic with him. Dr. Crane is an orthopedic surgeon. Dr. Crane's October 4, 1991 letter, which is claimant's exhibit 1, page 67, affirms his opinion in that he agrees with Dr. Washburn as to claimant's 1 percent impairment. He indicated that Dr. Washburn who was in charge of the clinic's industrial medicine was doing most of the medical business with the claimant. He also Page 5 indicated he felt claimant's injury was a fairly typical workers' compensation type injury. He further indicated, unfortunately, that claimant's pain is subjective with very little objective findings to support a higher rating. Claimant was sent by her attorney to S. J. Laaveg, M.D. Dr. Laaveg did an evaluation of claimant on January 20, 1992, and recommended an MRI scan of claimant's lumbosacral spine in order to do further evaluation (Cl. Ex. 1, p. 68). In an April 20, 1992 report, Dr. Laaveg reviewed the MRI scan that was taken in March 1992 which showed a degenerative disc disease at L4-L5, L5-S1, with disc bulges but with no protrusion in the spinal canal or impingement of nerve roots. He did not think claimant was a surgical candidate at that time. His records indicate that claimant's back problem began in July of 1989, at the time of her injury (Cl. Ex. 1, p. 110). On May 11, 1992, Dr. Laaveg opined that claimant had a physical impairment of 6 percent to the back and whole person using the AMA Guides to the Evaluation of Permanet Impairment (Cl. Ex. 1, p. 112A). Defendant's Exhibit A is an April 17, 1992 letter from Marvin H. Dubansky, M.D., an orthopedic surgeon. He evaluated claimant on April 17, 1992. He indicated that claimant's diagnosis was mild chronic sacroiliac strain and that there was some evidence of disc degeneration, particularly at L5/S1. He further indicated it was difficult to relate disc degeneration to any specific act that one carries out. He opined that under the AMA Guide, claimant had a 5 percent permanent impairment of the body as a whole under the catgegory of intervertebral disc or soft tissue lesions. He further wrote that he felt that claimant's symptomatic complaints were without true objective findings but she complains of pain and difficulty when she is standing and walking even though there was no objective findings. He indicated that no matter what one says or does, claimant was not going to return to a job requiring being on her feet and lifting. He also indicated that contrary to what Dr. Laaveg might have indicated, spinal fusion would not be efficacious as this type of surgery has been unimpressive as far as relieving an individual's symptoms. Defendant's exhibit B is a March 10, 1992 radiographic report from St. Joseph Mercy Hospital indicating there is an L4-5 and S5-S1 degenerative disc disease with disc dehydration and mild broad based disc bulges without herniation or protrusion. Defendant's exhibit F are some pictures which were taken during the surveillance of claimant. Defendant's exhibit G is a report of Research Consultants Group, Inc., concerning a video tape taken of the claimant while doing certain activities at her home. The video tape has been reviewed by the undersigned (Def. Ex. H). The undersigned noted that the tape started on March 27, 1992, at approximately 10:00 a.m. and showed videos of the claimant doing certain work until approximately 2:26 p.m. The surveillance report actually in Page 6 the summary depicts what the undersigned saw on the video. The undersigned agrees that the type of activity claimant was doing which involved squatting, stooping, pulling, walking, etc., was done apparently with no hesitation. The undersigned also realizes that depending on a person's constitution, one can do a considerable amount of work with pain and not necessarily evidence it. The tape was not of the greatest quality as to determining the expression of the claimant. In fact, the undersigned presumes it was the claimant as it was not clear enough to show the face or any expression of the claimant, so if in fact the undersigned had not known that it was of the claimant, he would not have actually been able to identify the person as the claimant he saw at the hearing. Claimant's exhibit 1, pages 113 through 147, is the notes and reports regarding a job placement plan for the claimant. It is noted in several places in this exam that claimant apparently was not doing any job search as she was requested and that they had not received any job logs from the claimant concerning the particular jobs that she was to research or follow up. Claimant's exhibit 1, pages 145 and 146 is a May 29, 1991 report of AAD&K, the placement company. They indicate that the placement services have continued to be provided to the claimant with no activity noted on her part and that they had not received any logs from her. They also indicate that she was doing a job search for unemployment and did not seem to want their services at that time. Therefore, they were indicating they were going to close their file at that time in regard to rehabilitation services. Defendant's exhibit C and claimant's exhibit 2 are the parties' position as to the rate issue. The undersigned finds that in reviewing the two documents claimant desires to leave out certain weeks that claimant feels were incomplete. These were weeks in which the claimant was apparently working 23.83, 23.75, 39.06, 36.33, 36, 35.80, 31.83 and 36.78 hours rather than a 40 hour week. As noted on these exhibits, there were many weeks in which claimant worked in excess of 40 hours, some weeks as high as 51 hours. It appears the parties agree that a legal 13 weeks should be the guideline. Claimant is taking out those weeks she feels is incomplete and filling them in with another week. Defendant takes the position that the 13 weeks before claimant's injury should be taken. The undersigned notes that in those 13 weeks, assuming claimant will be working a 40 hour week, they actually add up to claimant working a cumulative total of 5.92 hours over a 40 hour average week. The undersigned therefore finds that even though some weeks might have been less than 40 hours, there were some more than 40 hours which compensated for the under 40 hour week. The undersigned finds that the defendant's computed rate of $219.94 is the correct rate which should be used for any benefits payable herein. There is no evidence in the record that during those weeks claimant worked in excess of 40 Page 7 hours that she was in fact paid overtime. As to whether there is causal connection as to claimant's permanent disability and her work injury of July 17, 1989, the undersigned finds that the claimant has carried her burden of proof and that the greater weight of medical testimony shows claimant does have a permanent impairment, disability and restrictions as a result of her July 17, 1989 injury, and the undersigned so finds. The remaining issue is the extent of claimant's permanent disability. The treating doctor, Dr. Washburn, and Dr. Crane, opined that claimant has a 1 percent impairment. Dr. Laaveg, who evaluated claimant, opined 6 percent, and Dr. Dubansky pursuant to defendant's request for an evaluation opined a 5 percent permanent impairment. It would appear that claimant's problems are subjective and that there have been no real objective findings. The undersigned does believe though that claimant is injured and does have a permanent impairment and finds that claimant currently has some permanent restrictions and those restrictions would prevent her at this time from returning to her work at Armour Food. Claimant is 35 years old. Approximately five or six years prior to her beginning work with defendant in 1986, she was home raising her children. She indicated the reason she went back to work was she needed the money. The undersigned has found that claimant did receive a work injury on July 17, 1989. The undersigned has a question as to the severity of claimant's injuries and particularly in reference to the doctor's report as to the findings of subjective versus objective. The surveillance exhibit represented by defendant's exhibit H shows claimant being quite active. The undersigned realizes that claimant isn't contending that she is totally disabled. Life must go on and regardless of the pain, one must do certain things. Oftentimes, when one does certain work, depending on the extent of the pain, there is some evidence that one is feeling pain. The undersigned did not note on the surveillance tape any evidence that claimant had an injury even though that is not saying claimant wasn't be affected by her injury even though it was not noticeable. The undersigned believes the extent of claimant's impairment and it's findings hereafter as to industrial disability would indicate that claimant was able and could do the things she was doing. Claimant is young. In looking at the attempts for placement and trying to find her a job, it does not seem as though claimant was taking advantages of those services like she should. It appears her motivation was low. Taking into consideration claimant's pre and post-work history; medical history; education; location of her injuries; severity of her injuries; healing period; age; motivation; functional impairment; and, any other criteria used to determine industrial disability, the undersigned finds that claimant has a 10 percent industrial disability Page 8 and that her industrial disability benefits shall begin on October 9, 1990, at the rate of $219.94. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of July 17, 1989, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; Page 9 age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Iowa Code section 85.36 provides, in relevant part: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: .... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. It is further concluded that: Claimant's permanent disability is causally connected to her July 17, 1989 injury. Claimant has a permanent impairment as a result of her July 17, 1989 injury. Claimant's rate for payment of benefits is $219.94 per week. Page 10 Claimant has incurred a 10 percent industrial disability as a result of her July 17, 1989 work injury. ORDER THEREFORE, it is ordered: That claimant is entitled to fifty (50) weeks of permanent partial disability benefits at the weekly rate of two hundred nineteen and 94/100 dollars ($219.94), beginning October 9, 1990. That the parties agree as to the time off claimant had as a result of the work injury and that no additional healing period is involved. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that all healing period had been paid and that five (5) weeks of permanent partial disability at the rate of two hundred nineteen and 94/100 dollars ($219.94) had been paid. 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 to rule 343 IAC 3.1. Page 11 Signed and filed this ____ day of June, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert W Pratt Attorney at Law 6959 University Ave Des Moines IA 50311 Mr Marvin E Duckworth Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 5-1108; 5-1803 Filed June 26, 1992 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BETTY WHARTON, : : Claimant, : : vs. : : File No. 935160 ARMOUR FOOD COMPANY, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-1108; 5-1803 Found claimant's July 17, 1989 work injury caused claimant to incur a 10% industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JOHN EUROM, Claimant, vs. File No. 935223 M.A. MORTENSON CO., A P P E A L Employer, D E C I S I O N and CHUBB GROUP OF INSURANCE COMPANIES, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 23, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Fredd J. Haas Attorney at Law 5001 S.W. 9th St. Des Moines, Iowa 50315 Mr. Stephen Moline Assistant Attorney General Tort Claims Division Hoovers State Office Bldg. Des Moines, Iowa 50319 9998 Filed October 28, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOHN EUROM, Claimant, vs. File No. 935223 M.A. MORTENSON CO., A P P E A L Employer, D E C I S I O N and CHUBB GROUP OF INSURANCE COMPANIES, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed April 23, 1992. Page 1 nbefore the iowa industrial commissioner ____________________________________________________________ : ALBERT KALELL, : : Claimant, : : vs. : : File No. 935422 ABELL-HOWE, : : 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, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Albert Kalell, against the Second Injury Fund Iowa, defendant. Originally, claimant had filed an action against his employer, Abell-Howe. Those parties entered into a full commutation which was approved by Deputy Industrial Commissioner, Elizabeth Nelson on July 8, 1991. In the commutation, claimant was paid for a 21.75 percent permanent partial disability of the left upper extremity by defendant employer and defendant insurance carrier. The claim against the Second Injury Fund of Iowa was heard on April 4, 1992 in Cedar Rapids at the Linn County Courthouse. The record consists of the testimony of claimant. The record is also comprised of joint exhibits 1 and 2; claimant's exhibits 1-8; and, the Second Injury Fund's exhibits 2, 4 and 5. issue The sole issue to be determined is whether claimant is entitled to benefits from the Second Injury Fund, and if so, the nature and extent of the benefits. Page 2 findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 35 year old. He is married with one child. In 1981, claimant obtained his GED from Kirkwood Community College. During his years as a teenager, claimant stocked shelves, unloaded trucks, swept retail stores, cooked burgers, and cleaned a fast food restaurant. His jobs were all unskilled and they paid the then minimum wage. In 1976, claimant became associated with Laborers Local 43. He essentially performed heavy unskilled work primarily in the area of highway construction. Claimant poured concrete, operated a jackhammer, carried and set forms, performed clean-up tasks, and engaged in heavy lifting of 60-150 pounds. He earned $6.50 to $8.00 per hour. In 1978, claimant obtained a building trades card. He was able to work on buildings for a higher wage rate. Again, claimant engaged in many of the aforementioned tasks including heavy lifting. He earned from $9.35 per hour to $12.35 per hour. He worked in Iowa until 1984 when he transferred his card to Oregon. While there, he worked on walkways and curbs. From May of 1984 through November 1984, claimant worked in the entomology department at the University of Oregon. There was overhead work involved, but no strenuous lifting. Next, claimant returned to construction work. His duties involved manual labor and heavy lifting. He engaged in overhead work. His rate of pay was $14.65 per hour. On August 8, 1985, claimant sustained a work-related injury when he was struck by a backhoe. He injured his right arm, and about five inches below his right shoulder. Surgery was necessitated. Claimant also encountered kidney failure. This was unrelated to any work activity. However, claimant had dialysis, and a kidney transplant, after a donor was located. Claimant was off work until June of 1988. Then he returned to construction work. However, claimant testified he was able to work only three days before his arm turned black and blue. He described soreness, pain, tiredness and weakness in the right arm. Claimant remained off work until July of 1989. Richard F. Neiman, M.D., evaluated claimant's right upper extremity on January 6, 1992. In his report, Dr. Neiman opined: He has limitation as far as the abduction of the right shoulder at 100 degrees giving a 4% level of impairment of the upper extremities. The Page 3 adduction of the right shoulder at 45 degrees giving a zero percent level of impairment. Flexion of the right shoulder at 110 degrees giving a 4% level of impairment of the upper extremities. The adduction of the right shoulder at 45 degrees giving a zero percent level of impairment. Flexion of the right shoulder at 110 degrees giving a 5% level of impairment of the upper extremity, extension at 45 degrees giving 1/2% disability of the upper extremity. External rotation of the right shoulder at 75 degrees gives a zero percent level of impairment and internal rotation of the right shoulder at 60 degrees give a 1% level of impairment. The impairment rating therefore according to the records as provided of November 19, 1988 would be a 10.5% of the upper extremity. Assuming the pain is located in only the shoulder area and does not move more proximal to the scapular region the rating would therefore be of 10.5% of the upper extremity. However, if the pain is more proximal the impairment rating could be increased to approximately 7% of the whole person. Looking through the clinical notes I am not sure I could really lean one way or the other as to whether this relates strictly to the upper extremity of the whole person. As far as vocation restriction I think he is capable of sedentary activity. I would avoid repetitive use of the arm overhead and above the shoulder level. I would agree with the recommendations of Dr. Paluska and Dr. Henshaw as far as vocational rehabilitation. If you have any questions regarding this dictation, please advise. (Cl. Ex. 2, pp. 1-2) Claimant has sought no treatment for the right upper extremity after his return to Iowa. On July 1, 1989, claimant returned to Iowa. That same month he commenced employment with Cedar Valley Construction. He remained there for three months. He was paid at the rate of $9.50 per hour. Claimant terminated because he desired higher wages. He started with High Rise Construction where he assisted in building a parking ramp. After six weeks, claimant left for employment with Abell- Howe at the rate of $11.70 per hour. At Abell-Howe, claimant worked at General Mills in Cedar Rapids. His duties included demolition work, knocking down walls, digging footings, operating a jackhammer, pouring concrete, using a pick or sledgehammer, chipping concrete, and operating a chipping hammer. On November 11, 1989, claimant was operating a chipping hammer. He held his left hand around the bit and nozzle. He exerted pressure and he hit his left elbow against the Page 4 wall. He experienced pain from the left elbow to the left hand and he described the left extremity as highly sensitive. Claimant sought medical treatment from Yang Ahn, M.D. The physician referred claimant to the Iowa Musculoskeletal Center for an orthopedic evaluation. Walter J. H. Hales, M.D., performed surgery for the removal of the olecranon bursa of the left elbow. Following surgery, claimant participated in physical therapy and rehabilitation. Dr. Hales opined that claimant had a 15 percent impairment of the left upper extremity. As aforementioned, claimant entered into a full commutation of benefits for a permanent disability equal to 21.75 percent of the left upper extremity. The disability equaled 54.376 weeks of benefits at the rate of $436.27 per week. On June 4, 1990, claimant returned to work for defendant employer. He only worked five hours. Then, he was off work until September 5, 1990, when claimant again returned to the construction field. After that time, claimant worked intermittently. He testified he was able to work four to six weeks and then he must take off for a rest period. Since September of 1990, claimant had earned from $12.62 per hour to $13.40 per hour. Also, since September of 1991, claimant had sustained a separate injury to his back. The back injury was not a disputed issue in this matter. Claimant participated briefly with the Iowa Department of Vocational Rehabilitation. His file was eventually closed because claimant neglected to cooperate with his counselor, John Hughes. The date of the closure was April 23, 1991. Claimant never petitioned to have his file reopened. In July of 1991, claimant worked construction for Loomis Brothers, Inc. He worked on the following dates: July 1-3 July 8-12 July 15-18 In July of 1991, claimant sustained a work-related sunstroke. Claimant never returned to work, although he was released as of July 25, 1991. conclusions of law Claimant alleges he is entitled to benefits from the Second Injury Fund. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third permanent disability must exist as to both Page 5 the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 71-1. The Fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Interest accrues on benefits the Fund pays commencing on the date of the decision. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990). A deputy is entitled to determine the nature of claimant's injury and entitlement to compensation from the evidence presented, regardless of particular theories pled. Shank v. Mercy Hospital Medical Center, File No. 719627 (Appeal Decision Filed August 28, 1989). In the instant case, claimant has established that he has sustained two separate injuries which have resulted in the loss of the use of his two arms. It is acknowledged that the two injuries affected claimant's two shoulders, also, the two injuries have affected the respective upper extremities. See Shirley v. Shirley Ag Service, Inc., File No. 811696 (Appeal Decision filed March 21, 1990). Here, as in Shirley, supra, claimant's injuries permanently affected the use of each arm. The 1985 injury has resulted in a 10.5 percent impairment of the right upper extremity (Cl. Ex. 6, p. 1). Dr. Neiman has opined that claimant is restricted from working overhead repetitively and from working above the shoulder level. Additionally, claimant has testified that his right arm tires easily, his reach is restricted and his strength in his right arm is reduced. Claimant has testified that he experiences pain in his forearm, his fingers, and that he has problems with his grip. The 1985 injury to the right shoulder qualifies as a "first injury" under section 85.64. Claimant has also established that the November 11, 1989 work injury qualifies it as a second injury under section 85.64. Again, the second injury affects the loss of the use of the left arm. Claimant's treating surgeon has opined that claimant has a 15 percent permanent impairment to the left upper extremity. The claimant, defendant employer, and defendant insurance carrier agree that claimant has sustained a 21.75 permanent partial disability to the left upper extremity. Additionally, Dr. Hales has opined that claimant has ulnar nerve problems in the left Page 6 arm (Cl. Ex. 1, p. 11). Claimant has testified he has aching in his elbow which extends up his arm by 2 1/2 inches, and down his forearm on the back side. Furthermore, claimant has testified that he has numbness in his arm which extends into his fingers. Finally, claimant testified that he wears a brace on his left arm whenever he performs duties at work. Definitely, the loss of the left arm occurs because of the shoulder injury. The remaining issue under discussion is the nature and extent of the Second Injury Fund benefits to which claimant is entitled. The following formula is used to calculate Second Injury Fund benefits: Industrial disability from all impairments: - weeks preexisting disabilities - weeks amount of disability for which ______ defendant employer was responsible Total amount of weeks for which the Fund is responsible Claimant is industrially disabled because of the two shoulder injuries. He cannot engage in work activities where his arms are above shoulder level. Many of the jobs for which claimant has experience, involve holding tools and chipping hammers above shoulder height. Claimant has numbness and soreness whenever he lifts more than five pounds. There is a great deal of lifting involved in laboring positions on the construction site. Claimant is required to take several weeks off between jobs so he can rest his arms. He works six to eight weeks before he rests. He is unable to engage in jackhammering for extended periods of time. The activity causes him pain because of extreme pulling and tugging on his arms. Claimant is precluded from performing several job tasks. The preclusion can affect whether claimant is selected for a particular job. It is doubtful whether claimant can work overtime. Claimant has very little training in anything outside of the construction field. He is not especially motivated. He has not cooperated with his counselor, John Hughes. Claimant has not returned to school. It is the determination of the undersigned that claimant is industrially disabled. He has an industrial disability which totals 100 weeks. Using the aforementioned formula, claimant is entitled to the following for Second Injury Fund benefits: 100 weeks - 26.250 250 x .1050 = 26.25 - 54.376 250 x .2175 = 54.376 Page 7 19.374 Total amount of weeks for which the fund is responsible The fund is properly brought into the suit. order THEREFORE, it is ordered: Defendant is liable for nineteen and three seven four (19.374) weeks of Fund benefits commencing on March 7, 1992, the day after the settlement agreement was filed and at the stipulated rate of four hundred eighty-five and 73/100 dollars ($485.73) per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended, and commencing on the date of the filing of this action. Costs are taxed to defendant. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1992. ________________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Thomas J Currie Attorney at Law 3401 Williams Blvd SW P O Box 998 Cedar Rapids IA 52406 Mr Robert D Wilson Assistant Attorney General Hoover State office Building LOCAL 3200; 3202 Filed May 27, 1992 Michelle A. McGovern before the iowa industrial commissioner ____________________________________________________________ : ALBERT KALELL, : : Claimant, : : vs. : : File No. 935422 ABELL-HOWE, : : 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, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 3200; 3202 The Second Injury Fund was properly brought into this action as a party-defendant. Claimant was a construction laborer. He sustained two separate work injuries which affected the loss of the use of two arms. The Fund was liable for 19.374 weeks of benefits at the stipulated rate of $485.73. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JAMES W. CARR, : : Claimant, : : File Nos. 935598 vs. : 906851 : BLACK HAWK WASTE DISPOSAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This decision concerns two proceedings in arbitration brought by James Carr against his former employer, Black Hawk Waste Disposal, and its insurance carrier, Liberty Mutual Insurance Company. File No. 906851 is based upon an admitted injury of January 5, 1989. File No. 935598 is based upon an admitted injury of November 8, 1989. Claimant seeks compensation for additional healing period, permanent disability and payment of medical expenses. The controlling issue in the case is whether the permanent injuries which the claimant sustained extend into the body as a whole through either head or back or whether they are limited to his right leg. The record in this proceeding consists of testimony from James W. Carr, Patricia Carr, Michael Fogelson, and Dorine S. Ely. The record also contains claimant's exhibits 1 through 16, and defendants' exhibits A1, A2, A3, B, C and D. FINDINGS OF FACT Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made: James W. Carr is a 38-year-old married man who graduated from high school in 1970. He has worked for sixteen different employers, all for relative short periods of time as shown in his answer to interrogatory No. 8 (Claimant's Exhibit 10, pages 10-13). Most of the jobs appear to have consisted primarily of manual labor or cashier-type of work. Claimant has also accumulated five felony convictions and an aggravated misdemeanor conviction for offenses consisting of forgery, false use of a financial instrument, burglary and theft (Def. Ex. D; Cl. Ex. 10, pp. Page 2 41-42). Claimant's preinjury medical history is remarkable for problems with persistent headaches, dizziness and blackout spells in 1985, 1987 and 1988 (Cl. Ex. 4, pp. 38, 39, 41, 46). A report from the University of Iowa dated September 16, 1987, indicates that claimant had been off work due to visual disturbances (Def. Ex. A1). He has been afflicted with hypertension since he was a teenager and the records indicate that it has not always been well controlled. The preinjury records do not contain any significant reference to back pain or leg symptoms. Claimant was injured on January 5, 1989, when he neglected to lower the rails of his refuse truck and they hit a beam, stopping the truck immediately and throwing him forward within the truck. It appears unlikely that the claimant lost consciousness from that incident as he extracted himself from the vehicle and walked to the John Deere plant medical department where he was treated by the plant nurse. The ambulance attendants who transported him to the hospital noted head and face lacerations. A cervical collar was placed on him (Cl. Ex. 2, p. 5). The records from the hospital emergency room note "No L.O.C.," an abbreviation which indicates no loss of consciousness, though he was noted to be slightly dizzy. He demonstrated facial lacerations, thoracic spine pain and pain in his knee. While at the hospital, x-rays were taken of his cervical and thoracic spine which showed degeneration at the C6-7 level and mild scoliosis in the thoracic spine. No low back complaints were noted. His right knee appears to have become increasingly symptomatic while he was at the hospital (Cl. Ex. 2, pp. 1-3 and 7). Claimant returned for a recheck on January 9, 1989, at which time the records show that he continued to have pain and swelling in his knee and, pain in his upper back and headaches. He exhibited tenderness to palpation in his thoracic spine. A straight leg raising test was performed which was interpreted as being positive on his right leg at 30 degrees. The diagnosis shown is low back strain with contusion of the knee (Cl. Ex. 2, p. 9). The report of injury signed by the claimant on January 17, 1989, lists his back as a part of his body which was injured. It does not specify whether it was the upper, middle or low back (Cl. Ex. 16). The records indicate that on January 19, 1989, claimant received heat application to his low back (Cl. Ex. 4, p. 2). In the prehearing report, the parties stipulate that claimant's healing period entitlement runs from January 6, 1989 through February 5, 1989. A number of work releases appear in the record including January 23, 1989 (Def. Ex. A2, p. 2), January 30, 1989 (Def. Ex. A2, p. 1), and February 3, 1989 (Def. Ex. 4, p. 3). The stipulated date of February 5, 1989 is not irreconcilable with the record and is accepted as being correct for marking the end of the claimant's initial healing period entitlement. After returning to work on or about February 6, 1989, Page 3 claimant entered into a course of treatment with Orthopedic Surgeon Jitu D. Kothari, M.D., for treatment of his right knee. On February 17, 1989, claimant was noted to have post-traumatic condromalacia of his right patella secondary to the accident of January 5, 1989. Claimant returned to Dr. Kothari in February 23, 1989, but did not again return to Dr. Kothari until after the November 8, 1989 injury (Cl. Ex. 3, pp. 6 and 7). The notes from claimant's family physician note that on August 17, 1989, he complained of lack of feeling in his left leg, a symptom which had started on the previous day and on August 24, 1989, he reported occasional numbness in his right leg (Cl. Ex. 4, pp. 5 and 6). On November 8, 1989, claimant was again driving his employer's truck. He stopped at a stop sign and the cab of the truck tipped forward. There is uncertainty in the record regarding how far forward the truck tipped but it is clear that the claimant did bump his knee in the incident but he denied striking his head. He phoned his physician on November 8, 1989, reporting the incident and knee pain (Cl. Ex. 4, p. 8). X-rays of right knee were again taken on November 8, 1989 (cl. ex. 2, p. 12). The emergency room record makes record of knee complaints and symptoms but does not mention any back complaints of any nature (Cl. Ex. 2, p. 10). He was seen by his family physicians on November 17, 1989, with complaints of sore throat and coughing. Neither his knee nor his back are mentioned (Cl. Ex. 4, p. 10). On November 30, 1989, he was seen by Dr. Kothari. Dr. Kothari recommended arthroscopic surgery (Cl. Ex. 3, p. 9). The surgery was performed December 14, 1989 (Cl. Ex. 2, pp. 32 and 33). He was found to have a full thickness articular cartilage flap in the medial femoral condyle and medial facet of the patella of his right knee. After a relatively uneventful period of recuperation following surgery, claimant was released to return to work by Dr. Kothari and also by his family physician effective January 22, 1990 (Cl. Ex. 3, p. 17; Cl. Ex. 4, p. 36). Neither release listed any restrictions on activity. Claimant worked approximately half time for a few days and then again went off work on January 31, 1990. Claimant saw his family physician, Dennis Harris, D.O., as a follow-up for a gynecomastia condition which had been treated while claimant was off work. On that January 31, 1990 visit, claimant also complained of increasing numbness and tingling in his right leg. The note at one point state that no low back pain existed but at another point state that moderate back pain existed. A straight leg raising test was indicated as being negative. Distinct weakness of the right thigh musculature was noted. Dr. Harris recommended that claimant refrain from truck driving (Cl. Ex. 4, p. 12). It is noted that claimant had worked continuously following his return to work in February 1989 until the day before undergoing the surgery in December 1989. He was not off Page 4 work for the November injury until the day the knee surgery was performed. Claimant was first seen by Muhammad Eyad Dughly, M.D., for back complaints on February 13, 1990. Dr. Dughly provided testing and conservative treatment over the following months until releasing claimant for light duty on June 19, 1990. The employer apparently had no light duty work available for the claimant. Claimant did not report for work and was terminated for absenteeism. EMG tests were essentially negative except for the absence of the "H" response in claimant's right leg (Cl. Ex. 6, p. 26 and 27). That response was subsequently found to be normal in testing done at the University of Iowa Hospitals (Cl. Ex. 7, p. 56; Dep. Ex. 4). A sensory examination performed June 25, 1990, showed decreased sensation over claimant's entire right leg, right arm and right side of his face (Cl. Ex. 6, p. 46). Dr. Dughly was unable to state whether claimant's headaches were any worse following either accident than they were before the first accident occurred (Cl. Ex. 6, pp. 77 and 78). Dr. Dughly found claimant to have a spondylolisthesis condition which he felt was caused by the accident. He also stated that if it was caused by the accident, the pain should have started immediately following the accident (Cl. Ex. 6, pp. 83 and 84). Dr. Dughly stated that claimant had really not made any significant improvement for any of the conditions since the time treatment was started. He felt that when deposed in July of 1991, no further significant improvement was expected (Cl. Ex. 6, pp. 98, 109-111). Dr. Dughly felt that claimant had a 3 to 4 percent permanent impairment due to post-traumatic headaches, 5 to 6 percent due to low back, 5 to 6 percent due to right leg numbness and whatever impairment was related to the knee injury itself (Cl. Ex. 6, pp. 68-70). Dr. Dughly felt that claimant should follow activity restrictions (Cl. Ex. 6, p. 95). Claimant was also evaluated by Neurologist James M. Doro, D.O. Dr. Doro found claimant's neurological exam to be essentially normal. He related claimant's difficulties to a chronic musculoskeletal strain (Cl. Ex. 7, pp. 11, 12, 17 and 18). Dr. Doro felt that claimant's spondylolisthesis was not related to either of the accidents because no corresponding complaints were noted following the accidents (Cl. Ex. 7, pp. 21 and 22). He felt that claimant's low back problem, whatever it actually was, was not related to either of the accidents (Cl. Ex. 7, pp. 22-26). He felt that claimant's pains were idiopathic and stated that the majority of people with such complaints are unable to identify an incident which caused them (Cl. Ex. 7, pp. 42, 57 and 59). Dr. Kothari expressed no opinion regarding the cause of claimant's back complaints other than to state that the thigh pain was not a result of the knee condition (Def. Ex. C, pp. 24, 25 and 29). Dr. Kothari related claimant's knee condition to the first accident but stated that the second Page 5 may have aggravated it (Def. Ex. C, pp. 22 and 23). The record of this case is devoid of any prompt reports of thigh or low back pain of any continuing nature following either of the two accidents. Any testimony from claimant or his spouse providing an onset of symptoms at or about the time of either accident is not corroborated by any of the medical records. Further, claimant's testimony and credibility is suspect as evidenced by his criminal convictions as well as his attempt to recover for headaches when the record shows a preexisting course of headaches which appear to have been more aggressively treated medically than the ones of which he now complains. The objective record is absolutely devoid of any evidence of worsening of any pattern of headaches. The diagnostic testing regarding his back condition has failed to show any definite objective cause for the complaints. The MRI results are at best equivocal. For all these reasons, the evidence from Dr. Doro is preferred over that from Dr. Dughly, despite the fact that Dr. Dughly was a treating physician. The assessment made by Dr. Kothari regarding the right knee is accepted as being correct. It is essentially uncontradicted. It is therefore found that James W. Carr injured his right knee on January 5, 1989, and aggravated that injury on November 8, 1989. As indicated by Dr. Kothari, he has a 5 percent permanent partial impairment of his right leg. It is noted that claimant did not obtain further care or treatment for the right knee after having seen Dr. Kothari only twice in early 1989, until after the second injury occurred. The need for surgery and permanent impairment is therefore attributed to that second injury. Failing to keep medical appointments is strong evidence of a lack of symptoms. It is found that the existence of permanent disability affecting claimant's right knee was not discoverable based upon the information readily available until subsequent to the second injury which aggravated the knee. The record shows that claimant is married, has one child for whom he is required to pay support, and four stepchildren who reside with him and whom he, together with his wife, supports. The record does not indicate whether or not claimant pays support for his child or whether he is entitled, under the tax laws, to claim his child as an exemption for income tax purposes. While claimant's spouse may have earned more than the claimant, it is found that both contributed to the support of the home where they resided and that they were, as joint tax payers, both entitled to claim claimant's stepchildren, the children of his wife, as dependents for income tax purposes. Page 6 CONCLUSIONS OF LAW The occurrence of both injuries was not disputed, the only dispute is with regard to whether the injuries permanently affected claimant's back or head. 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 evidence fails to show any worsening of claimant's headache condition from that which had existed for a considerable amount of time prior to the time he commenced employment with Black Hawk Waste Disposal. It is therefore concluded that he has failed to prove by a preponderance of the evidence that either accident proximately caused any permanent head injury. That back condition is not quite so clear cut. Nevertheless, the burden of proof rests with the claimant. His testimony is rendered suspect as previously indicated herein. It is nor corroborated by medical records or reports. While it is possible that one of the accidents in some way injured his low back, the record fails to show that it is probable that claimant's low back was permanently injured in either of the two accidents. It is noted that many individuals sustain injuries which are temporary in nature and from which a full recovery occurs. The one note showing heat being applied to claimant's low back and the diagnosis of low back strain shortly following the first injury is consistent with there being a full recovery from any low back injury in that first accident. The next record of any back or leg symptoms appears in August of 1989, several months after the initial injury and several months before the second. No further record of back complaints exists until after the time claimant was released to return to work from the knee injury by Dr. Kothari. The evidence from Dr. Doro that such back and leg complaints are usually found to be idiopathic has been previously found to be correct. Claimant has therefore failed to prove by a preponderance of the evidence that his low back condition, whatever it may be, and his leg were proximately caused by either of the two accidents which are the subjects of this case. Claimant's recovery period from the first injury has been stipulated to have run from January 6, 1989 through February 5, 1989, a span of 4.571 weeks. With regard to the second injury, his period of recover runs from December 14, 1989 through January 22, 1990, a span of 5.714 weeks, ending when Dr. Kothari released him to return to work. Claimant is also entitled to recover permanent partial Page 7 disability representing a 5 percent disability of his right leg pursuant to Iowa Code section 85.34(2)"o". Five percent of 220 weeks is 11 weeks. Claimant's entitlement to weekly compensation pursuant to Iowa Code sections 85.34(1) and 85.34(2) therefore totals 21.143 weeks. The parties stipulated to claimant's rate of earnings and marital status. The only dispute regarding the rate of compensation is his entitlement to exemptions. The weekly rate of earnings is the same for both injuries, namely, $325. The first injury is, however, found under the 1988 benefits schedule while the second falls under the 1989 benefits schedule. Under Iowa Code section 85.61(6)"a", the exemptions which are to be used are those exemptions the individual is allowed under the Internal Revenue Code. Since claimant, as a married person, would have been entitled to file a joint income tax return with his spouse he would have been able to claim the four stepchildren as dependents on such a return and they should be allowed when determining his rate of compensation. There is no evidence that he is entitled to claim his child for whom he has been ordered to pay support as a tax dependent. Agency precedence has established a presumption that the employee is entitled to an exemption for any natural child for whom the employee is ordered to pay support. Biggs v. Charles Donner, II Iowa Indus. Comm'r Rep. 34 (Appeal Dec. 1982). It is therefore concluded that claimant is entitled to count as exemptions in determining the rate himself, his spouse, his four stepchildren and his one natural child for whom he is ordered to pay support. The record does not show claimant to have not paid any support or to have abandoned the natural child as would avoid the agency precedent. The rate of compensation should therefore be computed with seven exemptions. The rate for the January 5, 1989 injury is $230.78. The rate for the November 8, 1989 injury is $231.64. Inasmuch as claimant has failed to prove that his back condition resulted from either of the two accidents, his expenses listed in claimant's exhibit 5 are not recoverable by him under the provisions of Iowa Code section 85.27. The prehearing reports filed in this proceedings show that claimant has been paid 4.571 weeks of compensation at the rate of $226.31 based upon the January 5, 1989 injury and 23.429 weeks of compensation at the rate of $227.82 based upon the November 8, 1989 injury. When the two claims are combined, it is determined that defendants have previously voluntarily paid more than the amount of their liability in these cases and no further payments are due from defendants to this claimant. Normally, overpayment of compensation in one case cannot be applied toward unpaid compensation in another case. These two cases, however, are closely related and were consolidated for hearing. They were both against the same employer and the second is a continuation of the first. They deal with the same parts of the claimant's body and the Page 8 second injury was an aggravation of the first. Under these circumstances, it is appropriate to allow an overpayment of weekly compensation in the aggravation case to be applied toward the employer's liability in the case in which the original injury occurred. Claimant should not get a windfall. Wilson Foods Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982). ORDER THEREFORE, it is ordered that claimant take nothing from these proceedings. IT IS FURTHER ORDERED that each party shall pay its costs incurred in participation in these proceedings and that neither party obtain any reimbursement or recovery of costs from the other under rule IAC 4.33. Signed and filed this ______ day of July, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David W Stamp Attorney at Law 3324 Kimball Ave P O Box 2696 Waterloo IA 50704 Mr Kevin R Rogers Attorney at Law 528 W 4th St P O Box 1200 Waterloo IA 50704 1703; 3002; 1900; 5-1402.40 Filed July 30, 1992 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES W. CARR, Claimant, File Nos. 935598 vs. 906851 BLACK HAWK WASTE DISPOSAL, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. ___________________________________________________________ 1703 Where there were two injuries, the second being an aggravation of the first, it was held appropriate to allow overpayment of weekly benefits which were voluntarily paid in relation to the second injury to be used to satisfy an underpayment attributable to the first injury. 3002; 1900 Claimant was allowed exemptions in computing the rate of compensation for his wife's children (his stepchildren) even though wife's earnings may have been higher than his, and also for his own natural child for whom he was ordered to pay child support though the record did not indicate one way or the other regarding whether he actually paid the support, in part or in full, or was entitled to claim the child and an income tax exemptions. 5-1402.40 Claimant failed to prove that headache complaints and back complaints resulted from either of the two injuries which were the subject of the action.