BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PAULA N. GLANN, : : Claimant, : : vs. : : File No. 939135 JOHN MORRELL & COMPANY, : : 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. : ___________________________________________________________ On May 14, 1992, Paula N. Glann (claimant) filed a petition for arbitration as a result of an injury to claimant's back occurring on April 4, 1990. John Morrell & Company (John Morrell) was identified as employer and National Union Fire Insurance Company was identified as the workers compensation insurer for John Morrell (collectively defendants). On August 30, 1991 these matters came on for hearing in Sioux City, Iowa. The parties appeared as follows: the claimant in person and by her counsel Harry Smith of Sioux City Iowa and John Morrell and National Union Fire Insurance Company by their counsel Thomas M. Plaza of Sioux City, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Michael Hanson, and Donna Johnson. 2. Joint exhibits 1-54 3. Claimant's exhibits A-O. 4. Defendants' exhibit A. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. GLANN V. JOHN MORRELL & CO. Page 2 b. The time off work is stipulated to be April 6, 1990 to April 23, 1990 April 26, 1990 to October 22, 1990 and from November 14, 1990 onward. c. The type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. d. The rate of compensation, in the event of an award, is $208.53 per week based on a gross weekly wage of $306.72 per week. At the time of the injury, claimant was married and had two children and one child in vitro. Claimant is entitled to four exemptions. e. If the service providers was called to testify, the providers would testify that the fees were reasonable and defendants are not offering contrary evidence. f. The amount of costs is stipulated to be $65.00. ISSUES The issues for resolution are as follows: 1. Whether claimant sustained an injury on April 4, 1990 which arose out of and in the course of her employment with John Morrell. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. 3. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 26 years old. She is left hand dominant. Claimant is a deaf mute. She graduated from the Iowa School for the Deaf in 1984. She then attended Iowa Western Community College for one year and studied general basic skills. That course work was not completed. She left that endeavor and began to work for Aalfs as a presser. Claimant voluntarily left her position with Aalfs and accepted employment with John Morrell in October of 1989. Prior to starting her work at John Morrell, claimant had a physical examination by the plant nurse which was normal. GLANN V. JOHN MORRELL & CO. Page 3 2. Claimant's job at John Morrell was in the chitterlings area. In this area, chitterlings are thrown on a table one at a time and the worker takes the chitterling and feeds it through a pipe which then goes through a machine. The worker behind the machine takes the fat off the chitterling and throws it into a barrel of ice. The bulk of the work involves manipulating the chitterlings rather than moving barrels of ice. The chitterlings each weigh about half of a pound. Generally when the chitterlings are retrieved from the ice barrel, a worker picks up a hand full that weighs between 10-20 pounds. This position is considered a light duty position at the John Morrell plant. The job also involves bending and twisting frequently to retrieve and deposit the chitterlings in the appropriate place. The barrels of meat, ice and water are also moved by the workers, however this is not a regular part of the duties for workers in this area of the plant. The barrels are generally not full. The barrels are pushed, they are not picked up or lifted. 3. On the evening of April 4, 1990, claimant was working in the chitterling area. Sometime toward the end of her shift, claimant had a nose bleed. When the nose bleed occurred, claimant left her work station and went to the nurse's office. When claimant reported to the nurse's station she did not make any complaint that her back was bothering her from the work that she had performed during her shift. Claimant had been moving barrels and twisting and bending while she did her work prior to her nose bleed. Claimant had been doing these activities for approximately two weeks prior to April 4, 1990. When claimant woke up the next morning, she could not get out of bed due to pain in her back. Claimant was three months pregnant at the time of this incident. During her previous pregnancies, claimant had a sore back. Claimant had also complained of a sore back in February of 1990 due to her pregnancy. 4. Claimant's description of the mechanics of her injury has changed with the passage of time. At the time of the injury, claimant indicated that her back pain was attributable to her pregnancy. Then she thought it was attributable to bending and twisting at work. Claimant indicated on April 6, 1990 that her back was sore upon waking up on April 5, 1990. This description was given until sometime in later 1990 and 1991 when claimant changed the mechanics of the injury to a lifting incident at work. Then the lifting incident became a lift of a 100 pound barrel filled with meat, ice and water. The following excerpts from the evidence demonstrates these inconsistencies: GLANN V. JOHN MORRELL & CO. Page 4 April 5, 1990 Yesterday my nose were a little bleed late night closed to finish work. Probably from dry and this early am when I get up it's sore in lower back close to my tailbone from baby lay too low pressure on it my doctor they advised me to take a good shower try use heating pad and lay down on the left side and rest. But I couldn't miss work so I come in work I will do it when I get home from work tonight I might will need aspirin from relief of pain and pressure in back area later tonight. (Defendants Exhibit A, Page 35) April 6, 1990 2 days ago slight nose bleed here did taken blood pressure was fine + normal. Yesterday, in early am I barely get up & when I sit or walk its painful thought baby lay too low it's pressure on my lower back it just happen. Maybe from work bend too much but I don't know yet just happen. (Deft. Ex. A, P. 39). Interrogatory testimony: At work, almost at the end of the shift, I got a nose bleed. The next day, I woke up and my back ached and from that day on, it is still there. It doesn't go away. That night, I was working--standing, bending and moving alot on chitterling. The base job is to pick up barrels of meat, replace ice and exchange barrels and remove fat. Deposition testimony: Q. Am I correct that the first time you had back pains was when you had that nose bleed? A. At first at night when it was close to the time when we would be quitting work, I would say we finish about 12, 12:10, in early morning, we--off work at 1, and I had a nose bleed and I felt a little bit dizzy so the nurse did check my blood pressure and she said it seemed okay, so I went back to work after my nose quit bleeding, and then the very next morning I could barely GLANN V. JOHN MORRELL & CO. Page 5 get up out of bed because my back started hurting and that's-- that's when it started, when I had woke up the next morning. Hearing testimony: Claimant was asked at the hearing what happened to cause her back to hurt. Claimant responded by saying that she was lifting barrels that were full of meat and doing all the scraping. Claimant's nose started to bleed when she was lifting barrels. There was a lot of moving around, and bending. Claimant thought that the barrels she lifted weighed in excess 100 pounds. After claimant went home after her shift, she did not feel well throughout the night and when she began to get out of bed the next morning, she couldn't get out bed because her back hurt so much. (Transcript pp 18-20). 5. Claimant saw Frederick J. Lohr, M.D., in connection with her back complaint. Claimant gave a history to Dr. Lohr of a nose bleed on April 4, 1990 at work and low back pain the next morning. Upon examination, Dr. Lohr found tenderness in the area of the upper lumbar spine and he diagnosed acute low back strain. On April 9, when claimant was seen again, Dr. Lohr took her off work because she had not had any relief from her back pain. 6. Claimant was seen again by Dr. Lohr on April 12, April 26 and May 1, 1990. Claimant continued to complain of back pain. Finally, on May 1, 1990, Dr. Lohr indicated that claimant needed maternity leave because of her back problem. He indicated at that time that claimant's continuing back complaints were due to the pregnancy and the type of work she was doing for John Morrell. 7. In defendant's exhibit A, at page 43, there is a note that indicates that John Morrell believed that claimant had injured herself at work. The note is undated. The writer indicated: "We have to send you to our doctor because this was caused at work. Just forget about the fact that you forgot to report on time. Next time you'll know better." 8. On April 23, 1990, claimant had another series of note exchanges with the John Morrell nurses regarding the condition of her back and the cause of her ongoing pain. Claimant wrote: GLANN V. JOHN MORRELL & CO. 6ge òòò Don't know what it caused Dr can't take an x-ray till after baby born cuz it will probably damage fetus and I still wear brace & elastic wrap it up. They can't do as much because I am preg only bed & rest 2 wks it little improvement but still wear elastic wrap to support my back. (Defts. Ex. A, pp. 27-28). 9. On April 26, 1990, Dr. Lohr reported to John Morrell in a telephone call that claimant's back problems were not related to her work. His office indicated that she would be off for two weeks and then be rechecked by him. With that information, John Morrell advised claimant that it considered her back complaints unrelated to her work activities. On an undated note, the nurse wrote, "I pretty much have to go by what doctor told us, he said he didn't think this is work related. Claimant replied, "I will find out as it still don't go away I knew it's from work it done by heavy and bends tell me how come I had uternal sound test it shows none strains from preg & baby's fine. (Defts. Ex. A) 10. Claimant was seen on May 20, 1990, by D. Miedema M. D. complaining of right lower quadrant pain. At the time of this examination, claimant made no complaint or mention of ongoing back pain during her visit. Her only pain compaints were attributable to her pregnancy. 11. Claimant was next examined by John J. Dougherty, M.D. In a letter dated May 30, 1990 he observed that taking a history from claimant prior to the examination had been difficult due to her hearing and speaking impairment. Dr. Dougherty asked claimant if she had ever hurt herself and her response was no. (Ex. 27) Dr. Dougherty reviewed the findings of Dr. Lohr as part of the examination. Dr. Dougherty concluded that claimant had a chronic strain in her back as a result of the pregnancy and her work. He believed that her back strain was due primarily to her pregnancy and not her work. Dr. Dougherty was willing to release her to return to work but restricted the amount of bending and twisting she did in her work. 12. On June 20, 1990, claimant was examined by Dean M. Spartz, M.D. He felt that claimant's back ache was a strain secondary to pregnancy. He did not find anything else wrong with her. He recommended a pregnancy support sling but claimant had indicated that did not help. Then he recommended an orthopedic consult. GLANN V. JOHN MORRELL & CO. 7ge òòò 13. On June 26, 1990, claimant was examined by Jay T. Strittholt, M. D. regarding her low back pain. She reported that she had no past history of any back injury. Claimant described a lifting injury at work. Claimant was six months pregnant at the time of this examination. After examination, Dr. Strittholt concluded that claimant's injury may represent a muscle strain and transient osteoporosis but no further diagnosis was made due to claimant's pregnancy. 14. On October 11, 1990, Dr. Strittholt saw claimant again. Claimant delivered her baby in September. Dr. Strittholt noted that claimant was still having significant low back pain but that her hip pain had diminished markedly. Dr. Strittholt indicated that claimant still had tenderness directly over the coccyx posteriorly and the pain increased with any movement. Claimant had a bone scan and an MRI study done of her sacrum and lumbar spine and all of those studies were normal. After the exam on October 19, 1990, Dr. Strittholt concluded that claimant had trochanter pain consistent with trochanteric bursitis. He prescribed nonsteroidal medication which seemed to improve her pain. Claimant was seen again in November complaining of pain in her low back and left hip. After the examination, Dr. Strittholt noted that all of claimant's x-ray studies and MRI scans were normal for her hip and back. Dr. Strittholt was at a loss to explain any of her continued symptoms. He recommended that claimant re-contact Dr. Lohr for referral for second opinion. 15. On December 5, 1990, Dr. Lohr directed a letter to claimant's attorney indicating that claimant's pain complaint was not responding to his treatment nor was it a condition that Dr. Strittholt could alleviate. Dr. Lohr did not know what was causing claimant's pain. Dr. Lohr believed that there might be some psychological involvement with this pain. He based this observation on the fact that claimant had three small childern at home. Dr. Lohr thought that this environment contributed to claimant's preoccupation with pain and contributed to symptom magnification of her pain. He noted that he felt claimant's pain was real but he was at a loss as to what a diagnosis for the pain was. 16. On January 9, 1991, claimant was examined by Robert R. Sundell, M.D. for a neurological evaluation involving her low back, left buttock and left hip pain. Claimant gave a history of working at John Morrell and a lot of bending and lifting in her job. Claimant told Dr. Sundell that she was pregnant when her pain complaints began and the pain had not abated after her delivery. Upon GLANN V. JOHN MORRELL & CO. 8ge òòò examination, Dr. Sundell believed that claimant's neurological examination was consistent with the left S1 radiculopathy caused by a herniated disc. Dr. Sundell believed claimant needed a myelogram to determine whether there was a herniated disc causing nerve root compression. If the myelogram was positive, then he would recommend surgery to repair the disc. With regard as to the question whether claimant's repetitious job duties at John Morrell caused an aggravation to her condition, it was his opinion that bending and lifting as the patient described commonly is associated with the development of herniated disc and subsequent radiculopathy. 17. On January 25, 1991, claimant was examined by Ralph F. Reeder, M.D. Claimant gave a history that in April 1990, in the third month of her pregnancy she developed severe left buttock pain with pain radiating into the posterior aspect of her thigh with occasional tingling feelings down into her foot. Claimant indicated that she was doing heavy lifting activities at John Morrell and she did report the pain while working. After an examination, Dr. Reeder noted that the claimant had a suggestion of left S1 radiculopathy. He ordered a myelogram followed by a CT scan to rule out a disc herniation. He also f elt that because of claimant's small pelvis and her gestation that she suffered an S1 nerve root injury and felt that if the myelogram was negative he believed it would be very difficult to sort out whether pregnancy or work related activities generated the discomfort. However if the myelogram showed a disc herniation he believed that the herniation was caused by work. 18. On February 27, 1991, claimant had a myelogram which showed that claimant had minimal anterior spondylolisthesis of L5 on S1, no ventrolateral extradural defect identified to suggest disc herniation and incomplete fusion of the posterior elements of L4 and L5. Following the myelogram, claimant had a CT scan of the lumbar spine which showed spondylolisthesis on the right at the L4 vertebral body with incomplete fusion of the posterior elements of L4 with only minimal diastasis. Spondylolisthesis of the left pars interarticularis at L5 with an incomplete fusion of the posterior elements of L5 was also noted. No spinal stenosis or evidence of a focal herniation at L5-S1 was found. The radiologist did note that claimant had rotational scoliosis of the lower lumbar spine however. 19. On March 1, 1991, Dr. Reeder had a lengthy note exchange with claimant. He indicated that the myelogram and GLANN V. JOHN MORRELL & CO. 9ge òòò CT scan did not show any condition that he could fix with surgery. Dr Reeder indicated that he could give claimant medication to control her pain. Dr. Reeder told claimant that the x-rays show some arthritis in her back and some birth abnormalities. He felt that she did stretch or hurt a nerve but surgery would not correct this problem. He thought that surgery would cause more harm than good. Dr. Reeder thought that claimant's back had developed abnormally. Dr. Reeder also wrote that claimant had predisposing factors for back injury which included pregnancy and congenital defects in her spine. Her history of heavy lifting and pain while working and his findings were consistent with a work injury. However, when he was asked by claimant, "Do you think it's(back pain) from work related or pregnancy?" He replied, "Impossible to tell. You have birth problems with your back that pre-dispose you to back problems. So ? hard work ? preg. or ? was going to happen no matter what". 20. In the typewritten report which was prepared on March 1, 1991, Dr. Reeder summarized the radiologist's reports and his own conclusions regarding that status of claimant's back. (Ex. 44) His impression was that the claimant's congenital deformities of the lower spine predispose her to injury. Her pregnancy also predisposed her to a back injury. According to claimant's history of heavy lifting and pain while working and his findings, he concluded that claimant suffered a work related injury and that she had not reached a maximum medical improvement because financial difficulties had prevented her from taking any medication. Given her present condition, Dr. Reeder recommended that claimant be given a permanent weight lifting restriction of 20 pounds. Additionally, claimant should be allowed to change positions frequently from standing to sitting to resting. He felt that she would be able to reach maximum medical improvement when she started taking medication and would be left with a permanent partial impairment of five percent. Dr. Reeder released claimant from his care with these restrictions. 21. On March 28, 1991, claimant was seen in the outpatient department after she had been seen by emergency room personnel. Claimant had been in a car accident at John Morrell when she had parked to show her security ID, she was hit by another car. Claimant was in the process of delivering insurance documents to John Morrell regarding her injury. At the time of this accident claimant was still a John Morrell employee. Claimant was not wearing her seat belt but was complaining of pain in her neck and upper back. Claimant was given a prescription for pain as the x-ray studies revealed no injury. After this accident, claimant GLANN V. JOHN MORRELL & CO. 10ge òòò was certified to return to work after April 5, 1991. 22. On May 28, 1991, claimant was examined by Dr. Pat Luse, a chiropractor in Sioux City. At the time of the examination with Dr. Luse, claimant described her injury as frequent bending and lifting to get meat out of a barrel. Claimant gave an April 4, 1990 injury date. The claimant indicated that she had not had a prior injury that had caused similar symptoms to those she was now experiencing. Dr. Luse, as part of his examination, examined the records from Drs. Lohr, Spartz, Reeder, Strittholt and Sundell. At the conclusion of the examination, Dr. Luse determined that claimant had a chronic lumbar strain/sprain with a chronic S1 radiculopathy and chronic left trochanteric bursitis. Dr. Luse, based on his examination, the radiographic studies, and the subjective history given by the claimant, felt that claimant's injury was caused by at work. He also believed that claimant had reached maximum medical improvement. He noted that with the ending of claimant's pregnancy, her pain should have improved but it did not. He also noted that the congenital anomilies would have been a factor but he went on to note that the claimant was asymptomatic prior to the work injury. Dr. Luse gave a rating of five percent to the whole person. Dr. Luse felt that claimant would be limited to performing light duties and it would be highly improbable that she would be able to return to her former occupation. Finally, Dr. Luse recommended a course of therapy for claimant to improve her pain condition. 23. On June 17, 1991, claimant was examined by Dr. Daugherty. Dr. Daugherty summarized claimant's history and the results of her recent lumbar spine studies by Dr. Reeder. After his examination and review of claimant's lumbar spine studies, he felt that claimant could not lift more than 15 or 20 pounds, bend excessively or do frequent pushing or pulling. Based on her CT scan, myelogram and MRI, Dr. Dougherty did not believe that claimant had sustained a permanent partial impairment as a result of working at John Morrell. He believes that claimant aggravated her condition. Dr. Daugherty didn't believe that claimant should be working at John Morrell and he was not sure that she should be working anywhere, but he did not believe she had sustained any significant impairment as a result of working at John Morrell. 24. As a result of claimant's ongoing pain complaints, she can not stand for long periods of time. She has problems of lifting her youngest child and it is difficult for her to do her household chores. Claimant has not worked since she lost her job with John Morrell. Claimant has not GLANN V. JOHN MORRELL & CO. 11ge òòò looked for work, but she thinks that the only type of work she could get into is some type of factory work. 25. As a result of claimant's back problems, she has accumulated several medical bills. These are as follows: Sioux City Radiology $ 48.00 Dr. Sundell 110.00 Dr. Lohr 256.04 Marian Health Center 3,377.78 St. Luke's 367.00 Sioux City Neurosurgery 169.00 Dr. Strittholt 429.00 Dr. Pat Luse 340.00 Rachel John Deaf Interpreter 50.00 Prescriptions 171.97 Iowa Dept. Human Services 571.52 TOTAL: $5,890.31 The bill from Sioux City Radiology is for the injury in March of 1991 when claimant was delivering insurance papers to John Morrell. The bill from Dr. Sundell is for a neurological evaluation on January 2, 1991. Dr. Lohr referred claimant to Dr. Sundell for an evaluation for her low back pain. The bill from Dr. Lohr shows expenses for office visits on May 1, 1990, May 10, 1990, June 6, 1990, June 18, 1990, July 10, 1990, July 23, 1990, Nov. 13, 1990, Nov. 29, 1990, Jan. 7, 1991, April 5, 1991 and April 15, 1991. Claimant also had a variety of services from Dr. Lohr which included urinalysis on May 10, 1990, June 6, 1990, June 18, 1990, July 10, 1990 and July 23, 1990. Claimant received emergency services on May 20, 1990 and March 28, 1991. Claimant recieved outpatient services on March 28, 1991 and had an ultrasound study on April 5, 1991. Of these services, the office visits are temporally connected to the the work injury and the emergency services were given at the time of claimant's car accident at John Morrell. Claimant has made no showing that the urinalysis, or the ultrasound were related to her work injury. The bills from the Marian Health Center are for the myelogram, the attendant laboratory work, an MRI study of the claimant's spine and emergency room services on November 19, 1990. Claimant's bill from St. Luke's is for outpatient services, an emergency room physician for services in March of 1991 and physical therapy in July of 1990. The bill from Sioux City Neurology was for a consultation and follow-up examination on January 25, 1991 and March 1, 1991 by Dr. Reeder. The remaining bills are self explanatory. CONCLUSIONS OF LAW GLANN V. JOHN MORRELL & CO. 12ge òòò 1. Whether claimant sustained an injury on April 4, 1990 which arose out of and in the course of her employment with John Morrell. Claimant argues that she suffered a work related injury that continues to prevent her from working. Defendants contend that claimant was not injured at work. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 4, 1990 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. There is no requirement that there be a specific traumatic event to make an employer liable for an injury occurring to an employee while engaged in the employer's pursuits. It is enough if there is some hurt or damage that occurs during the course of employment that makes the employer liable. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934) In Almquist, the Court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers Compensation Act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. The injury to the human body must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The Almquist Court further observed that while a personal injury does not include an occupational disease under the Workmen's Compensation Act, it does include a personal injury to the health of a worker. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the GLANN V. JOHN MORRELL & CO. 13ge òòò general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. Claimant is not entitled to compensation for the results of a preexisting injury or disease. Bearce v. FMC Corporation, 465 N.W.2d 531, 536 (Iowa 1991); Olsen v. Goodyear Service Stores, 125 N.W.2d 251, (1963) Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956). However, when an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 (Iowa 1960). The Supreme Court has also indicated that in order for an aggravation of a preexisting condition to be compensable, the aggravation should be material. Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 1961). In this instance, claimant has shown that she suffered a work related aggravation of her congenital back abnormality. Dr. Dougherty, a board certified orthopedist had an opportunity to examine claimant both after her injury and while she was pregnant and then after she had delivered. He concluded that after he had seen the CT scan and myelogram, that claimant had aggravated her back at work. The opinions of Dr. Reeder and Dr. Luce have been discounted because the claimant gave these doctors inaccurate histories. Dr. Reeder thought that claimant was doing heavy lifting in her work while at John Morrell. This was not accurate. Dr. Luce thought that claimant was asymptomatic until the date of the occurrence. This was also inaccurate. Drs. Strittholt and Lohr could not explain claimant's pain, however, they did not have the opportunity to examine claimant's CT scan and myelogram. The fact finder is free to choose between the expert testimony presented at the time of hearing. Expert testimony can be rejected by the fact finder if the premise for the opinion is flawed. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). In this instance, Dr. Dougherty's opinion will be adopted as the controlling expert in this case. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. GLANN V. JOHN MORRELL & CO. 14ge òòò Claimant next argues that her aggravation at work is the cause of temporary and permanent disability. Claimant also contends that she is entitled to temporary total disability benefits or healing period benefits. Defendants contend that claimant has no permanent disability from her work injury. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 4, 1990, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag, 220 N.W.2d at 907. Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. In this instance, Dr. Dougherty has indicated that claimant did not suffer a permanent disability while she worked at John Morrell. The other opinions offered by other professionals have been discounted due to flawed histories given by claimant. Consequently, the evidence is insufficient to support a finding that claimant has suffered a permanent injury to her back. At most, claimant suffered a temporary aggravation of a preexisting condition at work and will be compensated accordingly. Pursuant to Iowa Code sections 85.32 and 85.33 (1991), temporary total disability of more than 14 days is payable in effect from the injury until the employee has returned to work or is medically capable of returning to substantially similar employment, whichever first occurs. Claimant bears the burden of proving entitlement to temporary total GLANN V. JOHN MORRELL & CO. 15ge òòò disability benefits. Howard v. Whitehall Transportation, File No. 779866 Slip Op. at 5 (Iowa Ind. Comm'r May 14, 1991). Claimant's period of disability was intermittent did not end until after her pregnancy was concluded and the treating physicians could determine that a combination of problems were contributing to claimant's back pain. Dr. Reeder made this determination on March 1, 1991. Dr. Dougherty made this conclusion on June 17, 1991. Since Dr. Dougherty has been adopted as the controlling expert in this case, claimant's period of temporary disability ended when Dr. Dougherty decided that claimant had not suffered a permanent injury from her work at John Morrell, but concluded that her other conditions were keeping her from returning to gainful employment. Consequently, claimant's disability period included the time between April 6 to April 23, 1990, April 26, 1990 to October 22, 1990 and from November 1, 1990 until June 17, 1991. 3. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. Claimant next argues that she is entitled to medical benefits as a result of her injuries. Defendants contend that the medical expenses claimant incurred were for a non work related condition. Under Iowa Code Section 85.27(1991) an employer has the responsibility to provide an injured worker with reasonable medical care and has the right to select the care the worker will receive. Claimant has the burden of demonstrating that the medical services obtained were causally related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (1978). Claimant has shown by a preponderance of the evidence that she sustained an injury while working for John Morrell. As a consequence, the necessary nexus has been established and John Morrell must provide medical benefits to claimant pursuant to Iowa Code section 85.27 (1991) for the care and treatment of the aggravation to claimant's back. A review of the bills submitted indicates that most of these bills are related to claimant's injury or the car accident of March 11, 1991. Claimant was within the course of her employment when she was struck on John Morrell's property while delivering insurance papers to the plant. GLANN V. JOHN MORRELL & CO. 16ge òòò Since this accident occurred while claimant was on at John Morrell, delivering insurance documents relating to her earlier injury, John Morrell is responsible for her medical bills resulting from those injuries. John Morrell must also pay for the bills relating to claimant's back treatment. John Morrell is not responsible for payment of bills relating to claimant's pregnancy and those bills whose purpose or connection to the injury cannot be identified. In this instance, John Morrell does not have to pay for the urinalysis work, the ultra sound, the office visit for lower abdomen complaints, and the emergency services on May 20, 1990, from Dr. Lohr's bill. The remaining bills must be paid as the claimant has shown that these are medical expenses incurred as a result of her work injury. On the issue of authorization, John Morrell denied liability for this claim from the outset. The employer cannot direct care and deny liability simultaneously. Pickett v. Davenport Lutheran Home, File No. _________, Slip Op. (Iowa Ind. Comm'r Appeal, October 30, 1987) (Defendants may not deny liability and direct the course of claimant's medical treatment). Early on in this case John Morrell decided that claimant's pain complaints were not work related and advised her to seek her own medical care. John Morrell cannot now argue that the treatment was not authorized since it denied liability for the claim. order THEREFORE, IT IS ORDERED: 1. John Morrell and National Union Fire Insurance Co., shall pay to claimant temporary total disability benefits for the period of time beginning on April 6, 1990 to April 23, 1990 and for the period of time from April 26, 1990 to October 22, 1990 and for the period of time from November 1, 1990 to June 17, 1991 for an injury to claimant's back at the rate of two hundred eight and 53/100 dollars ($208.53) per week. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. John Morrell shall pay medical benefits to claimant in the amounts set out in paragraph 25 of this decision except that John Morrell is not liable for the urinalysis work, the ultra sound, the office visit for lower abdomen complaints, and the emergency services on May 20, 1990, from Dr. Lohr's bill. 2. The costs of this action shall be assessed to John Morrell and National Union Fire Insurance Co. pursuant to GLANN V. JOHN MORRELL & CO. 17ge òòò rule 343 IAC 4.33. 3. John Morrell and National Union Fire Insurance Co. shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of October, 1992. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harry H Smith Attorney at Law PO Box 1194 Sioux City Iowa 51102 Mr Thomas M Plaza Attorney at Law 701 Pierce Street Ste 200 PO Box 3086 Sioux City Iowa 51102 5-1801; 5-2505 Filed October 9, 1992 ELIZABETH A. NELSON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PAULA N. GLANN, Claimant, vs. File No. 939135 JOHN MORRELL & COMPANY, 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. ___________________________________________________________ 5-1801 Deaf mute claimant was awarded temporary total disability benefits and medical benefits for back injury she suffered at work. The injury aggravated a preexisting back condition. Claimant was pregnant at the time of her injury and this complication was an aggravating factor as well. The medical evidence was not sufficient to show that claimant had suffered a permanent disability from her work injury. 5-2505 Some of claimant's medical bills were excluded because the bills were related to her pregnancy and not the work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ONALEE V. GALLI, Claimant, File No. 939147 vs. A P P E A L K MART CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 30, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay all costs including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven K. Warbasse Mr. Ross Hauser Attorneys at Law P.O. Box 5395 Cedar Rapids, Iowa 52406-5395 Mr. Joel T. S. Greer Attorney at Law P.O. Box 496 Marshalltown, Iowa 50158 9998 Filed July 28, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ONALEE V. GALLI, Claimant, File No. 939147 vs. A P P E A L K MART CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed September 30, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ONALEE V. GALLI, : : Claimant, : File No. 939147 : vs. : A R B I T R A T I O N : K MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by the claimant, Onalee V. Galli, against her self-insured employer, K Mart Corporation, to recover benefits under the Iowa Workers' Compensation Act as the result of an alleged injury of November 22, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner at Cedar Rapids, Iowa, on August 1, 1991. A first report of injury has been filed. The record in this matter consists of claimant's exhibits A through M as identified on claimant's exhibit list, defendant's exhibits 1 through 33 and 35 as identified on defendant's exhibit list and the testimony of claimant, of Thomas W. Magner, of Connie Cannady, of Donna Langherst Koranda and of Donald W. Yarrington. issues Pursuant to the hearing assignment order, the prehearing report and the oral stipulation of the parties at hearing, the parties have stipulated that the costs for medical charges were fair and reasonable for the condition treated and that the treatment was reasonable and necessary treatment for the condition treated and that, at the time of the alleged injury, claimant's gross weekly wage was $218.00, she was single and entitled to one exemption, creating a weekly compensation rate of $137.13. Issues remaining to be decided are: 1. Whether claimant received an injury which arose out of and in the course of her employment; 2. Whether claimant's claim is barred as not filed within the applicable statute of limitations; 3. Whether claimant's claim is barred for failure to provide adequate notice to defendant; 4. Whether a causal relationship exists between the alleged injury and the claimed disability; Page 2 5. The nature and extent of any benefit entitlement; 6. Whether claimant is entitled to payment of certain medical costs pursuant to section 85.27; and, 7. Whether defendant is entitled to a credit for benefits paid pursuant to section 85.38(2). findings of fact The deputy, having heard the testimony and considered the evidence, finds: Claimant was 58 years old at time of hearing. Claimant has completed ninth grade, but has never obtained a GED. Her past work experience is as a bartender, dishwasher and waitress. She began work at K Mart primarily in the cafeteria and deli area in September 1980. Claimant worked an eight-hour day at K Mart on a tile-covered cement floor. The job generally involved standing. The employer had provided a two-foot step ladder as a stool for claimant to sit on, however, in order to accommodate claimant's knee condition subsequent to 1984. Claimant's testimony that defendant, specifically her supervisor, did not permit her to sit on the stool is not supported by the record overall. Claimant has had arthritic problems in her ankles, her hip and apparently her back as well as her knees. Claimant saw Arthur E. Barnes, M.D., her family physician, for bilateral knee pain on apparently March 27, 1982. Dr. Barnes noted her pain seem worse when she worked, but got better when she took a few days off. He diagnosed degenerative arthritis. Dr. Barnes subsequently referred claimant to Albert R. Coates, M.D., an orthopaedic surgeon, who diagnosed degenerative joint disease. In April 1984, Dr. Coates did arthroscopic surgery on claimant's right knee with patellar shaving. Dr. Coates then initiated a program of conservative care consisting of anti-inflammatory medications and physical therapy exercises. Claimant did not experience significant relief. Dr. Coates in 1984 advised claimant that her knee problems were related to her work at K Mart. Claimant was off work in 1984 on account of the arthroscopic surgery. She received long-term disability benefits through K Mart. Claimant did speak frequently with K Mart personnel and with regular customers regarding her knees from 1984 onward, however. These conversations apparently never included comments indicating that the knee condition was work related. Claimant did not report a work-related condition regarding her knees to K Mart personnel in 1984 or subsequent thereto. Claimant did have alleged work injuries involving her left arm and her right hand which she did properly report. Claimant did advise her K Mart personnel director that she was leaving for knee surgery in November 1988. Dr. Coates performed bilateral knee replacement surgeries on November 22, 1988 and May 10, 1989, respectively. Claimant did not expressly advise the personnel director or any other Page 3 K Mart official that her knee surgeries were work related. Claimant received non-workers' compensation employer-provided short-term disability benefits while off on account of her November 1988 knee surgery. Under K Mart company policy, employees are to notify the personnel manager of work injuries. The name of the company doctor and the procedure for reporting work injuries are posted on the bulletin board and were so posted in December of 1988. The Employee Handbook, a copy of which is apparently available to all employees, also expressly states that all injuries are to be reported to a member of management and that an accident report must be filled out for every injury, "no matter how minor at the time of the occurrence." Neither Dr. Coates nor Dr. Barnes are K Mart authorized physicians. In November 1989, K Mart advised claimant that under company policy, she would be terminated [apparently as she had not returned to work within one year]. Claimant chose to take early retirement. She receives $36.36 per month pension through a K Mart plan. At time of hearing, claimant had primary daytime responsibility for caring for the four children of a daughter who was incarcerated. The children ranged in age from 14 years to 11 months. Claimant has not sought work or retraining since her final knee surgery. Claimant attributed her failure to do so to her need to be responsible for her grandchildren. Thomas Magner, a certified rehabilitation counselor, testified that claimant has no job skills from prior jobs that would transfer into any new job, given her physical limitations, which he stated included degenerative arthritis in the hip and back, knee replacements, memory loss, chronic fatigue and stiffness in the left upper extremity. Dr. Coates never released claimant to go back to work subsequent to her first knee surgery. Dr. Coates opined that claimant was incapable of doing her old job and that claimant could do sedentary work not involving a lot of filing. He recommended that claimant have a job where she could stand or sit intermittently, but primarily a seated job. He recommended no stair climbing, walking consistently on concrete, squatting, kneeling or object carrying. It is expressly found that claimant has some residual capacity for job performance and retraining and that claimant has not availed herself to seeking out any opportunities potentially available to her as she has been engaged in caring for her grandchildren. Dr. Coates first saw claimant in January 1984 for evaluation of pain in both knees. Dr. Coates opined that claimant had degenerative joint disease, the symptoms of which were aggravated by her employment. The doctor later stated that employment aggravated the degenerative joint disease in that claimant had a gradual recurrence of symptoms after her return to work after 1984 and, in that, in 1984, claimant had had an onset of symptoms subsequent to Page 4 performing work on her knees when she had not previously had [knee] problems. Dr. Coates' undisputed testimony that claimant's knee condition results in a permanent partial impairment of 15 percent of each lower knee and that claimant achieved maximum medical improvement approximately October 12, 1989, is accepted. Dr. Coates characterized claimant's knee replacements in 1989 as much more serious injuries than her 1984 arthroscopy. conclusions of law We first must consider the jurisdictional issue of whether claimant has timely filed her original notice and petition. Because the timeliness of claimant's claim can be ascertained only after it is determined whether and when claimant did receive an injury arising out of and in the course of her employment, that issue shall also be discussed below. Given the nature of claimant's condition, the medical causation issue also must be discussed. An original proceeding for benefits must be commenced within two years from the date of the occurrence of the injury for which benefits are claimed or within three years from the date of the last payment of weekly compensation benefits if weekly compensation benefits have been paid under section 86.13. Section 85.26(1). A proceeding in review-reopening must be commenced within three years from the date of the last payment of weekly benefits under either an award for payments or an agreement for settlement. Section 85.26(2). The "discovery rule" may extend the time for filing a claim where weekly benefits have not yet been paid. The rule does not extend the time for filing a claim where benefits have been paid. Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980). Under the rule, the time during which a proceeding may be commenced does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of the condition. The reasonableness of claimant's conduct is to be judged in light of the claimant's education and intelligence. Claimant must know enough about the condition to realize that it is both serious and work connected. Orr, 298 N.W.2d 256; Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). Failure to timely commence an action under the limitations statute is an affirmative defense which defendants must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). A personal injury contemplated by the workers' compensation law means a cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Dr. Coates is the sole medical practitioner issuing opinions in this matter. His testimony at best is confusing. At one point, he indicates that claimant's symptoms of degenerative joint disease were aggravated by her work. An aggravation of symptoms only is not such as would produce a work injury beyond perhaps a period of temporary total disability. He later opines that claimant's condition itself was aggravated by her work at K Mart. The general trend of the doctor's testimony supports a finding that the doctor believed claimant's history, including her onset of symptoms after work at K Mart and the nature of her Page 6 duties at K Mart, produced an actual aggravation of claimant's degenerative joint condition in her knees, however. Such is sufficient to establish that claimant did receive an injury arising out of and in the course of her employment at K Mart. We next need ascertain when claimant's injury occurred. Claimant has asserted an injury date of November 22, 1988, the day she underwent her first knee replacement surgery. Were that the appropriate injury date, claimant would have timely filed her petition. Claimant is alleging a bilateral cumulative trauma to her knees, however. The medical records demonstrate that claimant first treated for knee complaints in 1982. She first left work on account of her knee complaints when she underwent her left knee arthroscopy in 1984. She was off work for a considerable period of time subsequent to that procedure. The medical reports and notes in the record make clear that claimant's knee problems which ultimately resulted in her bilateral knee replacement surgeries have their roots in the degenerative joint disease, which degenerative joint disease directly correlates with claimant's left knee arthroscopy in 1984 and her subsequent need to be off work. Given such, the appropriate date of injury is that date in 1984 when claimant actually left work on account of her injury. The appropriate date of injury is not November 22, 1988. Claimant then can show that her original notice and petition was timely filed under section 85.26(1) only if claimant demonstrates she was unable to discover her work-related condition until at least May 18, 1988, that is two years prior to the filing of her original notice and petition. Claimant fails in this regard. Claimant appears to be a reasonable person. While she lacks formal education, she does not appear unintelligent or unable to comprehend direct medical statements. Dr. Coates advised claimant in 1984 that her condition was work related. Claimant certainly realized that a medical procedure such as the 1984 arthroscopy which required her to be off work for a substantial period of time was serious. Hence, no basis can be found for indicating that claimant should not reasonably have known that her condition was both serious and work connected in 1984. Claimant has failed to show that her original notice and petition was filed within the two-year time limitation established by section 85.26(1). Her claim, therefore, fails. We note that, even had claimant prevailed on the statute issue, claimant's claim would have failed on account of her failure to give her employer timely notice of her condition as required by section 85.23. Section 85.23 requires an employee to give notice of the occurrence of an injury to the employer within 90 days from the date of the occurrence, unless the employer has actual knowledge of the occurrence of the injury. Page 7 The purpose of the 90-day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the facts surrounding the injury. The actual knowledge alternative to notice is met when the employer, as a reasonably conscientious manager, is alerted to the possibility of a potential compensation claim through information which makes the employer aware that the injury occurred and that it may be work related. Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). The time period for giving notice does not begin to run until the claimant as a reasonable person, should recognize the nature, seriousness and probable compensable character of the injury. The reasonableness of claimant's conduct is to be judged in light of claimant's education and intelligence. Claimant must know enough about the condition or incident to realize that it is both serious and work connected. Positive medical information is unnecessary if information from any source gives notice of the condition's probable compensability. Robinson, 296 N.W.2d 809. Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). Claimant clearly did not give her employer actual notice of her injury within 90 days of leaving work for her arthroscopic surgery in 1984. Likewise, for reasons cited above, it cannot be said that claimant should not have realized that her condition was both serious and work connected within 90 days of her 1984 left knee arthroscopy such that the discovery rule would save her claim despite the section 85.23 notice requirement. Similarly, it cannot be said that the employer had actual knowledge of the occurrence of the injury, either at the time of the left knee arthroscopy in 1984 or at the time of the surgeries in 1988 and 1989. Claimant had a long-time history of degenerative joint disease. That degenerative joint disease affected her hips, ankles and apparently back, as well as her knees. While claimant did work in a job that required significant standing on concrete floors, that fact in and of itself cannot be considered of such significance that it should have alerted a reasonably conscientious manager that a person with a history of degenerative joint disease was developing a work-related knee condition. For the above reasons, it is concluded that the notice requirement of section 85.23 also prevents claimant recovering from her employer on account of her claimed injury. As claimant's claim is barred both as filed beyond the applicable statutory period and as a claim where notice was not timely given the employer, we need not reach the question of benefit entitlement, medical payment entitlement or section 85.38(2) credit entitlement. order THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. Page 8 Claimant pay the costs of this proceeding pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven K. Warbasse Mr. Ross Hauser Attorneys at Law Suite 1150, The Center P.O. Box 5395 Cedar Rapids, Iowa 52406-5395 Mr. Joel T. S. Greer Attorney at Law 112 West Church Street P.O. Box 496 Marshalltown, Iowa 50158 2401; 2402; 2801 Filed September 30, 1991 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : ONALEE V. GALLI, : : Claimant, : File No. 939147 : vs. : A R B I T R A T I O N : K MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 2401; 2402; 2801 Claimant's claim of a work-related knee injury barred under 85.26(1) where claimant left work for arthroscopic knee surgery in 1984, but did not file her original notice and petition until May 1990. Claimant had knee replacement surgeries in November 1988 and May 1989, which surgeries were found to be continuing manifestations of the knee conditions for which she left work in 1984. Claimant also failed to provide her employer with notice of the injury. Discussion of knee problems with co-workers and regular customers not sufficient notice of injury where claimant had known history of degenerative joint disease throughout her body. 1802 Filed February 28, 1992 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ _____ : TONY L. BARNES, : : Claimant, : : vs. : File Nos. 846639/939159 : 939160 HON INDUSTRIES, : : A P P E A L Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1802 Deputy affirmed but healing period award modified. Primary physician stated claimant was capable of returning to work in December 1989. A second physician told claimant in October 1989, he would like to see him again in two months (December 1989). The visit did not occur until March 1990, at which point the second doctor indicated further surgery was not necessary. Held that healing period ended in December 1989 and not March 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : TONY L. BARNES, : : Claimant, : : File Nos. 846639 vs. : 939159 : 939160 HON INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Tony L. Barnes, claimant, against Hon Industries, employer, hereinafter referred to as Hon, and The Travelers Insurance Company, insurance carrier, for workers' compensation benefits as the result of alleged injuries on January 31, 1987, March 21, 1988 and March 20, 1989. On April 9, 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. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits received into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. All of the alleged injuries arose out of and in the course of claimant's employment with Hon. 2. Claimant is seeking additional temporary total disability or healing period benefits only for the period of time extending from January 8, 1990 through September 13, 1990 and defendants agree that he was not working at this time. Defendants voluntarily paid benefits for lost time prior to January 8, 1990. 3. If the injury is found to have caused permanent disability, the type of disability is a scheduled member disability to the right arm. 4. Claimant's rate of weekly compensation shall be $232.68 (see the last paragraph of the Conclusions of Law Page 2 section of this decision). 5. All requested medical benefits have been or will be paid by defendants. issues The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to disability benefits. findings of fact Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: Claimant worked for Hon from 1985 until the date of the last injury of March 20, 1989. Claimant began as a fabricator and then became a welder. Claimant was first injured while performing the welding job. After his return to work following this injury, claimant was assigned upon doctors' advice to the job of grinder/sander/buffer. Claimant worked in this job until March 20, 1989 at which time he left employment with Hon upon doctors' advice. The first injury of January 31, 1987 involved the right wrist and hand. Claimant was struck hard in the palm of the hand when a welding clamp snapped open. Claimant said the sensation felt like "electricity went through his arm." Claimant was unable to continue working at that time and sought medical treatment. The initial diagnosis was acute tendonitis and possible fracture. After further tests failed to show a fracture, the diagnosis centered around tendonitis and a "nerve stretch" injury. Claimant was primarily treated by an orthopaedic surgeon, William R. Irey, M.D. This treatment consisted of taking claimant off work; the immobilization of the right hand with a cast; and, physical therapy for several months. Claimant eventually was released to return to work to the welding job in the summer of 1987. Following his return to work, claimant continued to suffer occasional pain and numbness in the right arm and hand, but tests conducted by Dr. Irey failed to reveal any abnormalities. The findings above with reference to the injury are based upon the views of the treating physician, Dr. Irey, as expressed in his reports and progress notes placed into the record. On or about March 21, 1988, claimant suffered a second injury to the right arm and wrist when he suffered increased pain after lifting steel parts at work. Upon a diagnosis of right carpal tunnel syndrome, claimant was again off work for several months and received physical therapy and medication from Dr. Irey. After a second opinion confirmed Dr. Irey's recommendation that claimant undergo surgery, Dr. Irey performed the carpal tunnel surgery in July 1988. Claimant initially improved, but eventually the chronic arm and hand pain returned. Claimant returned to work in November 1988, but this time Dr. Irey approved only a return to the job of grinder/sander/buffer. The findings above Page 3 with reference to this injury are based upon the views of the treating physician, Dr. Irey, as again expressed in his reports and progress notes placed into the record. On March 20, 1989, claimant suffered a third injury to the right arm, wrist and elbow. Although nothing in particular happened on that date, this is the time when claimant was compelled because of his pain to leave his job at Hon and seek medical treatment. The diagnosis of this condition consisted of multiple neuropathies due to overuse of claimant's arm and hand in his work at Hon. The new complaint of elbow pain was diagnosed as tendonitis of the elbow and entrapment of the ulnar nerve. The findings above with reference to the injury are based upon the views of the treating physician, Dr. Irey, as also expressed in his reports and progress notes placed into the record. The grinder/sander/buffer job involved the repetitive use of vibrating tools requiring constant tight gripping with the right hand. Claimant permanently left his employment at Hon on March 20, 1989 upon the recommendation of Dr. Irey who then imposed permanent restrictions against his use of vibrating hand tools, heavy lifting and repetitive hand gripping. Dr. Irey then attempted conservative treatment of the elbow condition over the next several months. This treatment failed to alleviate claimant's pain and in September 1989, Dr. Irey recommended release surgery of the elbow. Claimant sought a second opinion from William F. Blair, M.D., an orthopaedic surgeon at the University of Iowa Hospitals and Clinics. Dr. Blair recommended that claimant not undergo further surgery, but use instead an elbow pad. Claimant returned to Dr. Irey in October 1989. Dr. Irey felt that if claimant wishes, surgery could be delayed, but he would reserve judgment until a later date. On March 13, 1990, claimant again returned to Dr. Irey for further evaluation. Claimant continued to suffer the same chronic symptoms of hand, arm, wrist and elbow pain. At that time, Dr. Irey decided along with claimant not to pursue the surgical option. Based upon the views of Dr. Irey expressed at exhibit 9a, page 20, it is specifically found that claimant did not reach maximum healing until March 13, 1990 from the injury of March 20, 1989. It was not until this time that Dr. Irey and claimant together abandoned the surgical option and there apparently was no longer an anticipation of improvement in claimant's elbow condition for further treatment. A contrary opinion by Dr. Blair rendered in December 1989 that maximum healing had been reached in May 1989 was rejected as it apparently applied only to claimant's carpal tunnel problems after the surgery, not to the elbow problem. Whether or not claimant reached maximum healing from the carpal tunnel problem and release surgery in May 1989 is not important as claimant returned to work prior to that time. Claimant failed to show that he suffered permanent partial impairment as a result of the injury of January 31, 1987. As a result of the injury of March 21, 1988, claimant Page 4 suffered a 10 percent permanent partial impairment to the right arm. This is based upon the views of Robert J. Chesser, M.D., who evaluated claimant in January 1991. Unfortunately, Dr. Irey offered no permanent partial impairment rating. A contrary opinion by Dr. Blair as to the extent of claimant's permanent partial impairment was rejected. Although Dr. Blair appears to have a potential edge in credibility due to his relationship with the University of Iowa Hospitals and Clinics, a well-known and prestigious medical center, his written opinions are not convincing. At no time did he mention any objective findings or use of an objective measurement tool. Also, he made no reference to his use of any standardized evaluation guide to arrive at his opinions. On the other hand, Dr. Chesser stated that he measured the impairment using the well-recognized AMA guides for evaluating impairment and used objective measuring devices to arrive at his figures. It is further found that claimant has suffered an additional five percent permanent partial impairment to the right arm as a result of the March 20, 1989 injury. This additional permanent partial impairment is due to claimant's chronic elbow problems. This additional permanent partial impairment is over that which occurred in the prior injury. The finding of permanent partial impairment is based upon the views of Dr. Chesser. His opinions are uncontroverted with reference to the elbow condition. Dr. Irey again made no opinion. It was felt from a reading of Dr. Blair's opinion in which he rendered a five percent rating, that he rated only the carpal tunnel syndrome problems and had made no attempt to rate the elbow condition. conclusions of law I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the Page 5 finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. 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 compensation payable is limited to that set forth in the appropriate 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 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 is found that claimant suffered a ten percent permanent loss of use of his right arm as a result of the March 21, 1988 injury. Based upon such a finding, claimant is entitled as a matter of law to 25 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(m) which is ten percent of 250 weeks, the maximum allowable for an injury to the arm in that subsection. As it was stipulated that claimant returned to work on November 12, 1988, these benefits shall be paid from that date. It was also found that claimant suffered an additional five percent permanent loss of use of his right arm as a result of the March 20, 1989 injury to his right elbow. Page 6 Based upon such a finding, claimant is entitled as a matter of law to 12.5 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(m) which is five percent of 250 weeks, again the maximum allowable for an injury to the arm in that subsection. As it was found that claimant reached maximum healing on March 13, 1990, these benefits shall be awarded from that date. As claimant established entitlement to permanent partial disability, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until he returns to work or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. In this case, there was no dispute as to the healing period prior to January 8, 1990. It was found that claimant did not reach maximum healing until March 13, 1990. As claimant was off work after he left his employment, he is entitled to healing period benefits accordingly. With reference to the stipulated rate of compensation, claim reports submitted to this agency indicate that such a rate applies only to the January 31, 1987 injury. The commissioner has recently directed that stipulated rates must conform to his published rate booklet and to reports filed with this agency. Therefore, the rates appearing in the reports for the March 21, 1988 and March 20, 1989 injuries will be utilized in this decision, namely $238.62 and $239.97 respectively. order THEREFORE, IT IS ORDERED: 1. As a result of the injury of March 21, 1988, defendants shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of two hundred thirty-eight and 62/100 dollars ($238.62) per week from November 12, 1988. 2. As a result of the injury of March 20, 1989, defendants shall pay to claimant an additional twelve point five (12.5) weeks of permanent partial disability benefits at the rate of two hundred thirty-nine and 97/100 dollars ($239.97) per week from March 14, 1990. 3. As a result of the injury of March 20, 1989, defendants shall pay to claimant healing period benefits from January 8, 1990 through March 13, 1990, at the rate of two hundred thirty-nine and 97/100 dollars ($239.97) per week. 4. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for disability benefits previously paid. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action Page 7 pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 7. Defendants shall file claim activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law 4th Floor, Rock Island Bank Bldg. P.O. Box 4298 Rock Island, Illinois 61204-4298 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 Page 1 before the iowa industrial commissioner ____________________________________________________________ : COLEN K. FJETLAND, : : Claimant, : : vs. : File No. 939169 : IOWA MOLD TOOLING CO., INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE INS., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Colen K. Fjetland against Iowa Mold Tooling Company, Inc., his former employer, and its insurance carrier, National Union Fire Insurance. He seeks compensation for healing period, permanent partial disability or permanent total disability. Claimant relies upon the odd-lot doctrine. Claimant also seeks to recover medical expenses in the total amount of $963.04 for medical services which the employer contends were unauthorized. The case also contains an issue whether notice of termination of weekly compensation was properly given and a claim for penalty, all under section 86.13. Claimant also seeks to recover costs in the total amount of $380.52. The case was heard at Mason City, Iowa, on January 6, 1992. The record consists of joint exhibits 1 through 6, claimant's exhibits 1 through 10 and defendants' exhibits A through G. The record also contains the testimony given at hearing by Colen K. Fjetland, Steve Johnson, Carmen Fjetland, Collin Fjetland, Shari Fjetland, Steve Rehmann, Rhonda Pinneke and Karma Gibson. 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. Colen K. Fjetland is a 27-year-old married man who lives at Woden, Iowa, with his wife and children. Colen is a high school graduate and also attended graphic arts training at a community college but discontinued the course shortly prior to graduation. If he were to return to Page 2 school, he would probably be able to complete his degree in approximately one year. Colen appears to be a passive individual who avoids confrontation. He has difficulty carrying tasks through to completion, a characteristic which appears to be a manifestation of a learning disability. His reading, math and written expression skills are not good (claimant's exhibit 8, page c). Colen is afflicted with a spondylolysis and spondylolisthesis which conditions were identified when he was a student in high school. The spondylolisthesis has been characterized as "grade I" by neurosurgeon David W. Beck, M.D. The condition is one which, by its very nature, tends to become more symptomatic if heavy physical labor is performed by an affected individual. If the symptoms become sufficiently severe, fusion surgery is the normal treatment. Colen was treated for the back condition while in high school and again commencing in 1984 when he was injured while employed by Winnebago Industries. Following that Winnebago injury, he underwent treatment and made a nearly full recovery. When last seen by his treating orthopaedic surgeon, Sterling J. Laaveg, M.D., on August 29, 1986, it was noted that he was doing well (defendants' exhibit A, page 6). Activity restrictions and a six percent permanent impairment rating were assigned. In a subsequent letter dated September 9, 1986, Dr. Laaveg characterized claimant as having persistent mild symptoms (defendants' exhibit A, page 10). Colen commenced employment with Iowa Mold Tooling Company, Inc., in July 1987. He worked there without any particular incident regarding his back until April 26, 1989. The work was somewhat heavy in nature as shown by entries in the records of Lyle R. Fuller, M.D., which were made in early 1989 prior to April 26 (joint exhibit 5, page 4). It is found that while Colen may have had some intermittent symptoms from time to time between 1986 and 1989, the incidents were few, far between and relatively minor when compared to the symptoms which have persisted since the April 26, 1989, injury. The employer in this case does not dispute that Colen injured his back on April 26, 1989, while engaging in activities which were part of the duties of his employment. It is also clear that the injury was an aggravation of a preexisting condition. There is a dispute with regard to Page 3 whether the injury was a temporary aggravation rather than one which produced some additional permanent disability. The treating orthopaedic surgeon, Raymond L. Emerson, M.D., characterized it as one which probably did not cause a worsening of the anatomical problem (joint exhibit 4, pages 7 and 8). The impairment rating and activity restrictions which he imposed were essentially the same as those which had been imposed by Dr. Laaveg in 1986. Dr. Laaveg was deposed as was Dr. Beck. Both seemed to express the opinion that if the claimant's symptomatology following the 1989 injury returned to what it had been prior to that injury, then the injury was only a temporary aggravation, but if the symptomatology were worsened, then the injury did have permanent effects (joint exhibit 1, pages 10, 14 and 28; joint exhibit 2, pages 11, 17 and 18). Both Drs. Beck and Laaveg appear to agree that if claimant's symptoms have worsened sufficiently, then surgery would be appropriate though it could possibly be avoided if Colen were to limit himself to sedentary work (joint exhibit 1, pages 8-15 and 23; joint exhibit 2, pages 17 and 18). Dr. Emerson appeared to be of a similar opinion (joint exhibit 4, pages 6 and 8). Upon a close reading of the medical evidence from Drs. Emerson, Laaveg and Beck, it is apparent that whether or not permanency resulted depends upon a comparison of the pre-1989 injury symptoms with the post-1989 injury symptoms. As previously indicated, it is found that there has been a permanent increase in Colen's symptomatology since and as a result of the April 26, 1989, injury. This finding is corroborated by the fact that Colen was given a back brace following the injury. The assessment made by the company physician, Dr. Fuller, that claimant was able to resume work without restriction effective May 30, 1989, is rejected. The orthopaedic specialist and neurosurgeon are found to be correct in their assessment of activity restrictions. After being injured on April 26, 1989, Colen was treated by the company physician, Dr. Fuller. He was released to resume unrestricted work effective May 15, 1989, but was unable to tolerate the activity. With the permission of his employer's managerial personnel, he left work early and was again taken off work by Dr. Fuller. Dr. Fuller again released Colen to resume unrestricted work activity effective May 30, 1989. Following the first unsuccessful attempt to resume work, Dr. Fuller prescribed a back brace for Colen. Colen wore the brace to work on May 30. When observed by supervisor Kenneth Hayworth to be wearing the brace, Colen was sent home from work. Colen's testimony in this regard is corroborated by that from his parents, spouse and Steve Johnson. There is no reliable evidence in the record of this case to the contrary. There is evidence in the record from Rhonda Pinneke, the employer's personnel assistant who testified at the hearing. Pinneke has made a number of irreconcilably Page 4 conflicting statements in this case, some of which were made under oath. In her answer to interrogatory number 11, she denied that Colen showed up for work on May 30, 1989 (claimant's exhibit 7, page o). She apparently made that sworn statement without conducting a reasonable investigation. When testifying at hearing, she related that she had no indication prior to the day of the hearing that the claimant asserted that he had been directed to go home from work on May 30, 1989. Request for admission number 21 which is found at claimant's exhibit 5, page e, clearly shows that Pinneke was asked to admit that Hayworth had told Colen that company policy would not permit Colen to work while wearing a back brace. Pinneke clearly was aware of the claimant's assertion when she responded to the request for admission. Hayworth was not called as a witness nor was any attempt made to introduce his testimony for any purpose whatsoever at the hearing. When deposed, Pinneke testified to claimant coming into her office on May 30, 1989, and that he had gone home without completing the entire shift due to back pain, yet on further examination, it was apparent that Colen commenced his work shift at 3:30 p.m. and that Pinneke left the plant at 5:00 p.m., well in advance of the time when Colen was sent home (exhibit 10, pages 30-32). Pinneke did not maintain contemporaneous notes or otherwise make an appropriate record of the events of which she testified, in particular telephone conversations or visits when Colen stopped at the plant. Her memory is uncertain and incomplete. In summary, Pinneke's testimony is found to be unreliable. After Colen did not visit or speak with Pinneke on the telephone frequently enough to satisfy her, she sent Colen a notice which terminated his employment and also purported to terminate his workers' compensation benefits, both weekly and medical (claimant's exhibit 1). The record clearly shows that Colen had telephoned her on at least two occasions on June 20 and 21, 1989, shortly before she issued the termination notice (claimant's exhibit 3). While Colen did not, in all likelihood, telephone the employer every three days following being sent home from work on May 30, he did substantially comply with the requirement for frequent contacts, some of which were made by stopping at the plant. It has been previously found that the treatment provided by Dr. Fuller was inferior to that provided by Drs. Emerson and Beck. The evidence from Dr. Laaveg that it was reasonable for claimant to obtain treatment from Dr. Beck, Dr. Emerson and to have the CT scan is accepted as being Page 5 fully correct (joint exhibit 2, pages 28 and 29). All those treatments were obtained after the time that Pinneke had notified claimant that the employer would no longer provide medical services to him. Under those circumstances, it was certainly reasonable for Colen to seek treatment from another source. The treatment he sought was certainly reasonable and appropriate. There is no question regarding the reasonableness of the amounts charged. Colen remained under treatment with Dr. Emerson for a considerable amount of time. Dr. Beck opined that Colen reached maximum medical improvement sometime after January of 1990 (joint exhibit 1, page 10). Dr. Emerson was the primary treating physician at that point in time. According to his notes, on December 15, 1989, Colen was directed to continue exercising and using the low back brace. A follow-up appointment for two months later was scheduled. The notes of that follow-up appointment, February 14, 1990, indicated that Colen was doing well and should return in a few months for a clinical follow-up. It was on May 16, 1990, that he was noted to be doing well and no scheduled follow-up appointments were made (joint exhibit 4, pages 2 and 3). It was on July 6, 1990, that Dr. Emerson first provided an impairment rating and activity restrictions. When the office notes and the date that the impairment rating are all considered in light of the opinion of Dr. Beck, it is determined that it was on May 16, 1990, that Dr. Emerson determined that further improvement from the condition was not anticipated. In view of the condition of his back, Colen is not suited for performing moderate or heavy physical activity. If he had followed the restrictions recommended by Dr. Laaveg in 1986, he would not have been injured at Iowa Mold Tooling Company, Inc. At the very least, the injury of 1989 impressed upon him that it is important that he follow his physicians' advice. Colen's activity restrictions as recommended by the physicians are not greatly different from what they were in 1986. This injury did not change them by any large extent. Colen has little if any ratable permanent impairment as a result of 1989 injury. He does have increased symptoms and has not been provided a back brace. Most importantly, however, he was not allowed by his employer to resume work while wearing the back brace. As shown by the testimony from Karma Gibson, he has been denied employment as a result of his work injuries. In view of the facts which existed, namely that Colen was sent home by Kenneth Hayworth on May 30, 1989, it was not reasonable for his healing period compensation to be terminated until he had reached maximum medical improvement. His weekly compensation benefits should have continued on well beyond the date of September 13, 1989, when they were terminated. While there can be good faith dispute as to the date that the healing period actually ended and the Page 6 existence of permanent disability, it is certain that the healing period continued at least until February 14, 1990, and that any earlier termination of weekly benefits was clearly unreasonable. The span of time from September 14, 1989, to February 14, 1990, is 22 weeks. At Colen's age and with his educational background, he should be able to move into the graphic arts field with little additional training. His ability to withstand manual labor appears to be somewhat reduced since the 1989 injury. His access to jobs which require any significant manual labor appears to be notably reduced. To obtain employment in the graphic arts field, he will likely need to relocate. When all pertinent factors of his earning capacity are considered, it is determined that he has experienced a permanent 20 percent reduction in his earning capacity as a result of the April 26, 1990, injury. conclusions of law It was stipulated that claimant sustained an injury which arose out of and in the course of his employment with the employer. Principal issues in the case are whether the injury was permanent, the duration of claimant's entitlement to weekly compensation for recuperation, the nature and extent of any permanent disability and his right to recover medical expenses. It was previously found that the assessment of the case made by Dr. Fuller was not completely correct and that the assessments made by Drs. Beck, Emerson and Laaveg were more accurate. The period of recovery for purposes of healing period ends when the employee is as far restored as the permanent character of the injury will permit. It ends at the time when the physician determines that no further improvement is anticipated. It is not determined by looking back to the point at which improvement ceased. Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981). While that point is not always readily ascertainable, certain benchmarks such as the imposition of an impairment rating, cessation of active medical treatment, release from medical care on a "PRN" basis, imposition of activity restrictions and similar matters are considered. Dr. Beck's assessment that recuperation ended sometime after January of 1990 is consistent with Dr. Emerson's mode of Page 7 treatment which released claimant effective May 16, 1990, and rating of impairment in July 1990. It is therefore concluded that Colen Fjetland's entitlement to healing period compensation commences May 2, 1989, and runs through May 16, 1990. Since he has been paid through September 13, 1989, he is entitled to an additional 35 weeks of healing period compensation payable at the stipulated rate. It has previously been found that Colen did sustain permanent disability as a result of the April 26, 1989, injury based upon his increased level of symptomatology and being fitted with a back brace. In making this determination, the claimant's appearance and demeanor, as well as the appearance and demeanor of the other witnesses, was observed and considered in finding that Colen's symptomatology did in fact increase following the April 26, 1989, injury. In making that determination, it was recognized that his activity restrictions and physical impairment rating had not changed appreciably. It is not necessary, however, for permanent impairment to exist or increase in order for there to be a loss of earning capacity or permanent partial disability from an industrial standpoint since the injury was to the body as a whole. The fact that Colen reported for work and was not allowed to resume work caused a very abrupt loss of earnings. In Parr v. Nash Finch Co., (appeal decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden v. Big Ben Coal Co., 388 N.W.2d 181 (Iowa 1980). This is a case where the injury was to the body as a whole since it was a back injury. In view of the employer's Page 8 actions, it was not necessary for there to be any permanent impairment from the injury in order to entitle the claimant to an award of permanent partial disability. It is therefore concluded that Colen Fjetland is entitled to recover permanent partial disability under the provisions of Code section 85.34(2)(u) and that the extent of the disability is to be measured according to Colen's loss of earning capacity. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened 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, Page 9 Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Loss of earning capacity is to be compensated based upon the actual loss. It is not computed in the terms of a perfect man or from some point in the individual's life which is different from the points pertinent to the case under consideration. The comparison is made between the earning capacity after recuperation from the injury and the earning capacity which existed immediately prior to the injury. In this case, Colen was earning a quite favorable rate of pay at the time of injury. While actual earnings are strong evidence of earning capacity, this appears to be one of those cases in which the actual earnings are not a particularly strong indicator since Colen was violating previously-imposed medical restrictions in order to hold the job he was performing. Those restrictions were imposed and intended in order to prevent him from sustaining the type of injury which he sustained in this case. In view of his preexisting condition, it was quite predictable to a physician that heavy manual labor presented a high probability of injury. Colen, as a lay person, might not have realized the importance of following the restrictions and may have understandably relied upon his lack of symptoms as being an indication that the work was not harmful. If anything, this most recent injury should have impressed upon Colen the importance of complying with the restrictions recommended by his physicians. The graphic arts field seems to be a reasonable direction for Colen to follow. This is not to mean that there are not other fields which would be equally reasonable. It would provide him with an income which would approach what he earned with Iowa Mold Tooling Company, Inc., but is also likely to require him to relocate and incur higher expenses of living, particularly housing expenses. His history of two back injuries makes him particularly unpalatable to employers for any type of manual labor. When all the pertinent factors of industrial disability are considered, it is determined that Colen K. Fjetland sustained a 20 percent reduction in his earning capacity as a result of the April 26, 1989, injury. This entitles him to receive 100 weeks of permanent partial disability compensation payable commencing May 17, 1990. Colen seeks a penalty for the termination of benefits that occurred effective September 13, 1989. Whether the failure to pay was unreasonable is determined by whether the employer and its insurer had a reasonable basis in fact for the action that was taken and whether the claim was fairly debatable. Dolan v. Aid Ins.. Co., 341 N.W.2d 790 (Iowa 1988); Stanley v. Wilson Foods Corp., File No. 753405 (App. Decn., August 23, 1990). In view of Colen's preexisting condition, the fact that he was exceeding medical restrictions to perform the job with this employer and the Page 10 uncertainty regarding whether his symptoms had increased as a result of the injury, it was not unreasonable for this employer to deny permanent partial disability compensation. As far as the 30-day notice is concerned, the notice is not given until all required parts of the notice are communicated to the claimant. In this case, notice was given on August 24, 1989. The earliest permissible termination date was September 23, 1989. It was also unreasonable for the employer to terminate weekly benefits on September 13, 1989. The earliest reasonable date for termination of benefits which the record supports is February 14, 1990, when claimant was seen by Dr. Emerson. The span is 22 weeks from the date when they were actually terminated until February 14, 1990. In view of the circumstances in this case, in particular that the reason given for terminating benefits was the claimant's alleged refusal to accept offered work and the complete lack of a reasonable investigation, a 50 percent penalty, namely 11 weeks of benefits, is warranted under the provisions of Code section 86.13. Claimant seeks to recover medical expenses totalling $963.04 as listed in the attachment to the prehearing report. The only defense urged is lack of authorization. Dr. Laaveg clearly showed it to be reasonable for claimant to have sought the treatment for which he now seeks payment. The termination letter was quite reasonably interpreted by Colen as telling him that the employer would not provide further benefits. Under those circumstances, he was free to choose his own care limited only by the standard of reasonableness. The care he selected was clearly reasonable. The employer is therefore liable under the provisions of Code section 85.27. Claimant also seeks to recover costs in the total amount of $380.52. Claimant is entitled to recover all the items of costs which he seeks, except $39.20 for the copy of the deposition which was not entered into evidence. Claimant's cost entitlement is therefore $341.32. order IT IS THEREFORE ORDERED that defendants pay Colen Fjetland thirty-five (35) weeks of compensation for healing period disability at the stipulated rate of two hundred eight and 11/100 dollars ($208.11) per week commencing September 14, 1989. IT IS FURTHER ORDERED that defendants pay Colen Fjetland one hundred (100) weeks of compensation for permanent partial disability at the stipulated rate of two hundred eight and 11/100 dollars ($208.11) per week commencing May 17, 1990. IT IS FURTHER ORDERED that all the foregoing compensation for healing period and permanent partial disability is accrued, past due and owing and shall be paid to claimant in a lump sum together with interest pursuant to Page 11 section 85.30 of The Code. IT IS FURTHER ORDERED that defendants pay Colen Fjetland two thousand two hundred eighty-nine and 21/100 dollars ($2,289.21) representing eleven (11) weeks of compensation as a penalty under Code section 86.13 for the unreasonable failure to pay weekly compensation during the period running from September 14, 1989, through February 14, 1990. IT IS FURTHER ORDERED that defendants pay the following medical expenses: Allied Medical Accounts Control $ 267.00 St. Joseph Mercy Hospital 480.00 David Beck, M.D. 98.00 Mason City Clinic 64.00 Park Clinic 54.04 Total $ 963.04 IT IS FURTHER ORDERED that defendants pay claimant the costs of this action as follows: Filing fee $ 65.00 MCA Reporters, Beck deposition 50.94 MCA reporters, Pinneke deposition 147.60 Harris Reporting, Laaveg deposition 37.78 Mason City Clinic, medical report 40.00 Total $ 341.32 IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Bertrand E. Gionet Attorney at Law P.O. Box 7796 Des Moines, Iowa 50322 Mr. Peter J. Leehey Attorney at Law 801 Carver Building P.O. Box 1680 Fort Dodge, Iowa 50501 1803; 1806; 1807; 2206 2501 Filed May 22, 1992 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : COLEN K. FJETLAND, : : Claimant, : : vs. : File No. 939169 : IOWA MOLD TOOLING CO., INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE INS., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803; 1806; 1807; 2206; 2501 Claimant, with preexisting spondylolisthesis, sustained a back injury. When he was released to return to work, the employer refused to allow him to work while wearing a back brace. Claimant awarded healing period and 20 percent permanent partial disability despite no significant change in activity restrictions or impairment rating relying upon a theory of Blacksmith and McSpadden. Employer terminated claimant's employment for purportedly failing to call in every three days. The termination notice also informed him that the employer would no longer pay any of his medical expenses. The employer's lack of authorization defense to subsequently incurred medical expenses was denied. Claimant awarded 11 weeks penalty for the difference between when his healing period was actually terminated and the earliest date which could have reasonably been found. Benefits were purportedly terminated because he failed to report to work when released by the company physician, but the fact of the matter was that the claimant did report to work with the back brace and was sent home. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ALVIN LYONS, : : Claimant, : : vs. : : File Nos. 939173 & 900548 WILSON TRAILER COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a consolidated proceeding in arbitration brought by Alvin Lyons, claimant, against Wilson Trailer Company, employer (hereinafter referred to as Wilson Trailer), and the Hartford Insurance Company, insurance car rier, defendants, for workers' compensation benefits as a result of two alleged injuries on November 3, 1988 and December 27, 1988. On October 2, 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 con tested 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 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 Wilson Trailer at the time of the alleged injuries. 2. Claimant is not seeking temporary total disability or healing period benefits in this proceeding. 3. If either of the alleged injuries are found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. If permanent disability benefits are awarded, they shall begin on the alleged injury dates. 5. Claimant's rate of weekly compensation in the event of an award of weekly benefits for either of the two Page 2 injuries shall be $205.56. 6. All medical benefits have been paid by defendants to date. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant suffered the alleged injuries arising out of and in the course of employment; and, II. The extent of claimant's entitlement to permanent disability benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the injuries and disability. From his demeanor while testify ing, claimant is found credible. Claimant has worked for Wilson Trailer since April 1978 and continues to do so at the present time. Wilson Trailer is a manufacturer of livestock and grain trailers. Claimant has held numerous jobs at Wilson Trailer. At the time of the first alleged work injury in November of 1988, claimant was working in the axle department where he was required to occasionally lift heavy break drum housings and leaf springs. At the time of this injury, claimant had only recently been transferred from the job of driving a shag tractor. At the time of his second injury in December 1988, claimant was performing work in the "finish out" department. Claimant testified that he bid for this job because he thought it would be lighter work. However, he soon learned that this job required heavy lifting and manhandling of very heavy tires. Since May 1989, claimant has been assigned to janitorial work within his physician imposed work restric tions against heavy lifting over 20 pounds. Claimant states that this job is suitable for him. On or about November 3, 1988, claimant suffered an injury which arose out of and in the course of his employ ment at Wilson Trailer. Claimant complained of bilateral groin pain after lifting a heavy assembly in the axle department. Initially, it was the opinion of his family physician, Cathryn Opheim, M.D., that claimant had suffered a hernia and she referred claimant to a general surgeon, Gary Carlton, M.D. However, Dr. Carlton opined that claimant had no "definite" hernia but felt that claimant would suffer a hernia if he continued to perform heavy lift ing at work. Dr. Carlton's diagnosis appearing on exhibit 7 was groin strain. In January 1989, Dr. Carlton imposed a 20 pound lifting restriction. When asked if surgery would improve his condition and whether or not the restrictions Page 3 were permanent, Dr. Carlton responded to claimant that surgery was not necessary until a hernia occurs. In exhibit 7, the doctor indicates that claimant's work tolerance should not improve. Although defendants disputed the work injury, the real fighting issue in this case is whether the 20 pound work restriction imposed by Dr. Carlton was causally connected to the November 3, 1988 groin strain. Dr. Carlton states that claimant's susceptibility to injury is due to a congenital weakness in his groins. He did not opine that the suscepti bility was increased or affected in any way by the November 1988 injury at work. A chiropractor, Pat Luse, D.D.C., who testified at hearing, opines that claimant has actual bilat eral hernias and gave claimant a permanent impairment rating based upon these hernias. However, his views cannot be given greater weight over the views of a treating specialist in general surgery. The imposition of the lifting restrictions in January 1989, initially appeared to the undersigned connected to the November 1988 injury because it was imposed so late in claimant's working life. Claimant is 60 years of age and has been working in heavy manual labor all of his life. If the condition that claimant was suffering was truly congeni tal, why was not the problem found earlier. However, the evidence shows that claimant did, indeed, have a similar groin pain problem six months prior to November 1988. According to the office records of Dr. Opheim, claimant com plained of bilateral groin pain in May 1988. The doctor felt at that time that claimant might have suffered bilat eral hernias and referred claimant to a specialist. Claimant never appeared for this appointment explaining to Dr. Opheim, rather peculiarly that "he wasn't sure if the pain was because of hernia or because of bladder problems." Possibly, if claimant had kept the appointment, he may have received work restrictions much earlier than the work injury in this case. Therefore, given the lack of a definitive medical opinion that the work injury of November 3, 1988, increased claimant's susceptibility to hernias and given a prior similar complaint six months early, it cannot be found that the work injury was a cause of the lifting restriction imposed by Dr. Carlton to prevent the hernias in the future. It also cannot be found for the same reasons that claimant suffers from permanent partial impairment or any loss of earning capacity as a result of the groin strain in November 1988. While in the tire department, on December 27, 1988, claimant suffered a second injury, this time to his back and right arm while lifting heavy tires at work. Claimant was initially treated by a physician assistant, C. Hocum, who diagnosed muscle strain secondary to employment. In January 1989, claimant was seen for continuous back and arm pain by an orthopedic surgeon, John Dougherty, M.D. Dr. Dougherty diagnosed tennis elbow and low back strain. His treatment consisted of medications and home exercises. Claimant was also taken off work for one week and then returned to duty. Dr. Dougherty directed that claimant's 20 pound work restrictions be continued indefinitely due to these prob Page 4 lems. Dr. Dougherty's last appointment with claimant was in early February 1989. There is nothing in the medical evi dence with reference to this injury to suggest that these back problems were anything other than work related. In January 1989, soon after the second injury in this case, claimant bid out of the finish department and into a job called "roll top." According to claimant, this was lighter duty but still required him to, on occasion, exceed his restrictions including the pulling of an overhead cover ing or tarp. In this job, claimant was required to work with another person. Consequently, claimant relied upon this fellow employee to perform the work that was outside of his work restrictions. Initially, there were no problems and the first employee assigned to work with claimant accom modated for claimant's disability without complaint. However, a few weeks later another person was assigned to work with claimant that was not so tolerant. Tension quickly developed between claimant and this person which eventually lead to claimant being the subject of verbal threats of physical violence from this employee. Claimant then asked to be reassigned and in May 1989, with the con sent of claimant's union representatives, claimant was transferred to a janitorial job within his restrictions. Claimant continues to perform this job at the present time. Claimant stated that he continues to have back and groin pain while lifting at work. In May 1990, claimant was examined by Dr. Luse, who had diagnosed the hernias dis cussed above. Dr. Luse also diagnosed at this time a lumbar strain but gave no permanent partial impairment rating for this condition. In April of 1990, claimant was examined by Vernon Helt, M.D., speciality unknown, who diagnosed persis tent back and groin pain. In January 1991, claimant returned to Dr. Helt who noted continued low back pain and recommended that he be seen by a neurologist. In April of 1991, claimant was examined by Donald Ayres, M.D., a neuro surgeon. After testing failed to show any neurological disorder, Dr. Ayres reported that claimant's problems were musculoskeletal in his opinion and suggested that claimant receive certain medications and physical therapy. Care was transferred by defendant to D. M. Youngblade, M.D., special ity unknown, who has to date offered no further treatment to claimant. It should be noted that in December 1989, claimant was involved in an auto accident, in which he was "rear ended" while stopped at a stop sign. As a result of this accident, claimant complained of pain in the base of his neck. According to the treating physician, Dr. Youngblade, claimant returned to his pre-accident condition soon after the injury and suffered no permanent partial impairment or disability from the accident. Claimant has failed to show that he suffers permanent partial impairment from the December 27, 1988 back and arm injury. No physician has opined that claimant suffers from a permanent partial impairment. However, it is found that the work injury of December 27, 1988, is a significant cause of claimant's current 20 pound work restriction. Admit Page 5 tedly, this restriction occurred initially as a result of the groin pain in November 1988. However, claimant contin ued to work in excess of these restrictions in the finished department. It was not until the second injury and the con tinuation of the work restrictions by Dr. Dougherty after the December 1988 back injury, that claimant began to stay within his work restrictions and felt compelled to bid out of the job into the roll top position. With reference to industrial disability, it is found that the work injury of December 27, 1988, is a significant contributing factor to the permanent imposition of the 20 pound lifting restriction. This restriction led to a job transfer which has resulted in approximately an eight percent loss of earnings. Although claimant may have requested the job transfer, this was due solely because a fellow employee failed to understand and accommodate claimant's disability. Claimant should not have been placed in this position by his employer. Claimant's hourly rate was $7.90 per hour at the time of the back injury. Claimant's current job pays $.67 per hour less than his for mer job. Claimant states that he lost a lot of overtime opportunities from the transfer. Claimant's supervisor tes tified at hearing that claimant had no overtime in the December 1988 injury. Claimant's stipulated gross weekly rate of compensation does not appear to contain any alloca tion for overtime pay. Also, claimant admits to receiving some overtime in his present position. No statistics were introduce by claimant to make any specific findings as to the extent of the loss of overtime. Consequently, any award in this proceeding cannot be based upon a claim of loss of overtime opportunities. Defense witnesses testified that jobs at Wilson Trailer are available within claimant's restrictions that pay the same as the job he held at the time of injury. However, it is understandable that claimant does not wish to bid on these jobs. Claimant's present job is suitable and is get ting along reasonably well. Another job which may require more demanding work, even if it is within the restrictions, could cause him problems and he may not be able to return to the janitor job. There is no significant reason why claimant should be required to change from his current situation. Claimant has only a tenth grade formal education. He earned his GED in 1974. His work history primarily involves manual labor and warehouseman work. Consequently, claimant is severely restricted from performing the type of work for which he is best suited given his lack of formal education and past work experience. Claimant has limited potential for vocational rehabilitation. On the other hand, claimant has motivation to remain employed. His current job appears suitable and stable. He is 60 years of age and plans to retire at age 62. The economic impact of claimant's dis ability is not as great as would be the case for a younger person. Therefore, as a result of the work injury of December Page 6 27, 1988 and the transfer to janitorial work, claimant has suffered a mild five percent loss of earning capacity. This finding is made despite the absent of finding of permanent partial impairment as a result of a work injury. The loss of earning capacity was the result of a job transfer adversely impacting upon claimant's earning capacity. conclusions of law Claimant must establish by a preponderance of the evi dence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disabil ity" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restric tion on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several fac tors. These factors include the employee's medical condi tion 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 intellec tually, emotionally and physically; earnings prior and sub sequent to the injury; age; education; motivation; func tional 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 trans fer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). It is well settled that a transfer to a lower paying job as a result of a work injury is compensable even without a showing of permanent partial impairment. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980). In the case sub judice, it was found that claimant has suffered only a five percent loss of earning capacity as a result of the work injury. Based upon such finding, claimant is entitled as a matter of law to 25 weeks of per manent partial disability benefits under Iowa Code section 85.34(2)(u) which is five percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that sub section. order Page 7 1. Defendants shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of two hundred five and 56/l00 dollars ($205.56) per week from December 27, 1988. 2. Defendants shall pay the accrued weekly benefits in a lump sum. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the cost of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of November, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P O Box 1194 Sioux City IA 51102 Mr. Brian L. Yung Attorney at Law 550 29th St STE 200 Des Moines IA 50312 5-1803 Filed November 5, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : ALVIN LYONS, : : Claimant, : : vs. : : File Nos. 939173 & 900548 WILSON TRAILER COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Extent of disability benefits.