Page 1 before the iowa industrial commissioner ____________________________________________________________ : RONALD TARR, : : Claimant, : File No. 951330 : vs. : : A R B I T R A T I O N JOHN DEERE WATERLOO WORKS, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Ronald Tarr against John Deere Waterloo Works, self-insured employer, defendant, for benefits as the result of an alleged injury which occurred on March 15, 1989. A hearing was held in Waterloo, Iowa, on January 27, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert D. Fulton. Defendant was represented by John W. Rathert. The record consists of the testimony of Ronald Tarr, claimant; Steve Lee, claimant's friend; Richard Smith, former coemployee; Charles Buck, M.D., defendant's medical director; and joint exhibits 1 through 13 (transcript page 27). The deputy ordered a transcript of the hearing. Both parties submitted excellent posthearing briefs. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on March 15, 1989, which arose out of and in the course of employment with employer; Whether the injury was the cause of either temporary or permanent disability; Whether claimant is entitled to either temporary or permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled, to include whether claimant sustained a scheduled member injury or an injury to the body as a whole; and Whether defendant is entitled to an apportionment of disability. preliminary matters Claimant presented a medical bill for payment at the Page 2 beginning of the hearing, from Orthopaedic Specialists (exhibit 5, tr. pp. 6-13). Medical benefits were not designated as a hearing issue on the hearing assignment order nor do the notes of the prehearing deputy indicate that this issue was raised at the prehearing conference and, therefore, this decision will not address this issue. Presswood v. Iowa Beef Processors, file number 735442 (Appeal Decision 1986). Moreover, the prehearing report signed by both attorneys indicates that claimant's enti tlement to medical benefits was no longer in dispute. The parties agreed that they did not need a determination of the issue of whether defendant is entitled to a credit pursuant to Iowa Code section 85.38(2) as shown on the hearing assignment order because in the event of an award of benefits they would be able to work this out between themselves (tr. p. 13). Defendant withdrew the issues of notice under Iowa Code section 85.23 and timely commencement of action under Iowa Code section 85.26 which were shown as hearing issues on the hearing assignment order (tr. p. 14). findings of fact injury It is determined that claimant sustained an injury to his right shoulder on or about March 15, 1989, which arose out of and in the course of employment with employer. Claimant testified that he braced himself with his foot and pulled with both hands and all of his body weight of 250 pounds on a large wrench to tighten an overhead nut on a machine when he felt a crunch in the front of his right shoulder. He further testified that he mentioned the incident to his coworker, Richard Smith, at the time of the injury (tr. pp. 53-70). Smith, a 27-year employee of employer, testified that claimant did, in fact, report the injury to him at the time that it occurred. He said that claimant told him that he pulled something or something snapped in his shoulder when he was pulling on the large heavy wrench. Smith instructed claimant to report the injury to the medical department (tr. pp. 156-171). Smith verified that he and claimant, as machinists, performed heavy work (tr. pp. 159-161). Claimant testified that he reported the injury to the medical department (tr. p. 70). The medical department notes for March 16, 1989, show that claimant was to be restricted from firm gripping or twisting of the right hand through March 17, 1989 (ex. 6, p. 32). March 15, 1989, was a Wednesday; March 16, 1989, was a Thursday and March 17, 1989, was a Friday. The medical notes of C. D. Bendixen, M.D., the company physician, for March 16, 1989, verify that claimant did receive a right shoulder injury as described by claimant on Wednesday, March 15, 1989. Dr. Bendixen's note reads as Page 3 follows: Complains of discomfort in his right shoulder. Apparently yesterday he was pulling on a wrench and pulled hard on his shoulder and then today was reaching up to operate some type of button on a machine, and noted discomfort and a popping sensation in the shoulder. On examination, I see no evidence of dislocation of teh [sic] shoulder and see no swelling or marked tenderness of the muscle over the shoulder. He is able to run the arm thruogh [sic] full ROM but notes a slight popping sensation. I do not feel he has had an appreciable injury, but simply may have slightly stretched the shoulder muscles. I restricted him for today to no firm gripping and twisting and limited use of the right arm. If he has problems by Monday, he should let me know. (exhibit 6, page 42) Claimant testified that he continued to have difficulty over the weekend on Saturday, March 18, 1989, and Sunday, March 19, 1989, which continued into Monday, March 20, 1989. Claimant testified that the right shoulder pain became worse because of an increased workload that occurred at that time and that he went to the emergency room and Covenant Medical Center on Tuesday, March 21, 1989 (tr. p. 72). The emergency trauma record for Covenant Medical Center on Tuesday, March 21, 1989, verifies that on March 15 claimant thought his right shoulder was dislocated, saw John Deere medical who decreased his workload. Claimant reported to the trauma center that he was pulling on a wrench and heard a crunching sound in his shoulder (ex. 3, p. 84). The emergency room physician, John Littler, M.D, verified that claimant had a sensation of "crunching" and right shoulder pain since last Thursday. The onset was when he was working overhead at John Deere. Dr. Littler assessed, "Right shoulder pain, capsulitis versus acromion bursitis." (ex. 3, p. 86). Claimant's long-time friend, Steve Lee, testified that claimant reported the shoulder injury to him at the time it occurred and that it imposed several limitations on the use of his right arm (tr. pp. 147-156). Claimant testified that he saw James E. Crouse, M.D., an orthopedic surgeon, for this injury (tr. p. 73). The office notes of Dr. Crouse for Thursday, March 23, 1989, show that he saw claimant for discomfort in his neck, shoulder and upper back. Dr. Crouse found that he had a full range of motion of the shoulder, but tenderness in the subacromial area down into the shoulder into the axillary area. X-rays of the cervical spine, thoracic spine and shoulder were normal. His impression was overuse syndrome with strain of the shoulder. Bursitis, tendenitis. Cervical strain. He took claimant off work and prescribed physical therapy for his neck and shoulder (ex. 2, p. 15). Dr. Crouse treated claimant until September of 1989. Page 4 Claimant testified that he next saw Arnold E. Delbridge, M.D., an orthopedic surgeon, for a second opinion about whether he should have surgery on his right shoulder (tr. p. 77). The notes of Dr. Delbridge for September 13, 1989, record, "He was working as a mill operator until March of this year when he jerked his shoulder and since then he has been unable to work because he can't lift his shoulder up past about 90 degrees....He probably has a rotator cuff injury with perhaps even a tear on the right side." (ex. 1, p. 7). Dr. Delbridge recommended against surgery because claimant had previously received an amputation of the left arm just distal to the elbow and that a rotator cuff repair may very well cause real problems for claimant in taking care of himself. Dr. Delbridge prescribed physical therapy (ex. 1, p. 7). This evidence of right shoulder injury from pulling on the wrench at work on or about March 15, 1989, is not rebutted, controverted, contradicted, or refuted by any other evidence in the record. Robert Buck, M.D., the medical director, acknowledged that the company made the decision that claimant had not sustained a work-related injury and refused to handle it as a workers' compensation claim (tr. p. 208). Employer's records show that they thought his back problems were a continuation of past back problems, but neither the records nor Dr. Buck gave any explanation or basis for their denial of the shoulder injury (ex. 6-12). Wherefore, it is determined that claimant sustained an injury to his right shoulder on or about March 15, 1989, which arose out of and in the course of employment with employer. causal connection-entitlement-temporary disability It is determined that the injury was the cause of temporary disability and that claimant is entitled to temporary disability benefits from March 21, 1989, to October 11, 1989, a period of 29.143 weeks. Dr. Littler took claimant off work when he saw him at the emergency room on March 21, 1989. He recommended that he rest as much as possible until claimant could see Dr. Crouse in two days (exs. 3-85 & 3-86). Claimant also testified to this (tr. p. 73). In a letter dated May 22, 1989, Dr. Crouse wrote that by March 23, 1989, claimant had developed discomfort so that any light activities with reaching at shoulder level and above were giving him severe pain. An x-ray of the shoulder was normal, an EMG of the right upper extremity was normal as to the shoulder, but showed an ulnar nerve decompression of the right forearm for which Dr. Crouse eventually performed surgery. Dr. Crouse concluded this letter by stating, "[I]t would certainly appear to me that the neck, back and shoulder symptoms are related to the work." (ex. 2, p. 8). Page 5 Dr. Delbridge proceeded on the history given to him by claimant for the right shoulder history as if it were, in fact, the cause of the right shoulder injury. He described the injury that occurred at work and stated that he has been unable to work since then (ex. 1, p. 1). Wherefore, it is determined that the injury to the right shoulder on or about March 15, 1989, was the cause of temporary disability. As previously stated, Dr. Crouse continued claimant off work on March 23, 1989 (ex. 2, p. 15). Claimant continued to have neck, upper back and right shoulder complaints, and on April 13, 1989, Dr. Crouse said that claimant should continue on restricted activities (ex. 2, p. 10). On May 8, 1989, Dr. Crouse said claimant is going to continue with restricted activities, progressing activities as tolerated (ex. 2, p. 10). On May 22, 1989, Dr. Crouse proceeded with the ulnar nerve decompression of the right arm (ex. 2, p. 10). Along with his right shoulder problems, claimant was encountering back problems which also prompted Dr. Crouse to keep claimant off work on May 30, 1989 (ex. 2, p. 6). On June 29, 1989, Dr. Crouse stated that with any reaching claimant's shoulder hurts him as well as his neck and back and Dr. Crouse continued claimant on restricted activities until August (ex. 2, p. 6). Dr. Crouse stated that on July 28, 1989, that claimant was restricted from all but light labor and sedentary type of activities (ex. 2, p. 4). On August 29, 1989, Dr. Crouse said, with respect to sorting microfilm, that claimant shouldn't lift more than five pounds occasionally and should do no heavy pushing, pulling, twisting, or gripping (ex. 2, p. 3). These restrictions show that claimant was not able to return to work nor was he able to return to substantially similar employment. Iowa Code section 85.34(1). Even though Dr. Crouse said that claimant's condition was unchanged on August 14, 1989, he apparently did anticipate some possible improvement because on August 29, 1989, he approved a return to work sorting microfilm (ex. 2, pp. 3 & 4). Dr. Bendixen's note for August 17, 1989, says that claimant is off for shoulder and vascular problems (ex. 6-30). Claimant then changed physicians to Dr. Delbridge who apparently had some hope of future improvement. On September 13, 1989, Dr. Delbridge stated, "I think I will put him on some therapy for his shoulder and see how that works out and see if he can regain some motion here." (ex. 1, p. 7). On September 27, 1989, Dr. Delbridge ordered an MRI of the shoulder (ex. 1, p. 7). On October 11, 1989, Dr. Delbridge said the MRI of the shoulder was negative. He did not recommend surgery for the right shoulder. He said that at this point claimant is not able to lift a wrench up on top of a mill which is what he has to do at work. Dr. Delbridge stated, "...I don't think he can do that kind of work." (ex. 1, p. 7). Thus, Dr. Delbridge had not completed his diagnostic Page 6 studies, ruled out surgery, and determined that claimant could not return to his old job until October 11, 1989. Therefore, the medical notes of Dr. Delbridge on October 11, 1989, contain the first evidence that significant medical improvement was no longer anticipated (Iowa Code section 85.34(1). This is further confirmed by his note of November 8, 1989, where he stated that claimant's shoulder is about the same (ex. 1, p. 6). None of the remaining notes by Dr. Delbridge on December 4, 1989; December 12, 1989; January 17, 1990; February 28, 1990; April 25, 1990; or June 20, 1990; show any signs of improvement after October 11, 1989. Dr. Buck testified that claimant told him that his condition stabilized in about December of 1989 (tr. p. 180). Wherefore, it is determined that claimant is entitled to 29.143 weeks of healing period benefits for the period from March 21, 1989, when Dr. Littler took claimant off work until October 11, 1989, the point at which Dr. Delbridge failed to see any further improvement in claimant's condition as demonstrated by his office notes and prescribed no new diagnostic tests or therapies. The fact that claimant filed for and received weekly indemnity benefits for treatment for narcolepsy, vascular by-pass surgery and ulnar nerve surgery (ex. 12, pp. 2-4), during a period of proven temporary disability for this injury, is immaterial for the reason that claimant established that he is entitled to temporary disability benefits for this injury from March 21, 1989 to October 11, 1989. Dr. Littler took claimant off work for his shoulder. Dr. Crouse and Dr. Delbridge continued to keep claimant off work for his shoulder. Claimant is entitled to healing period benefits until one of the events in Iowa Code section 85.34(1) occurs to terminate it. Claimant is entitled in this case to healing period benefits until he reached maximum medical improvement. This deputy knows of nothing in the workers' compensation statute or cases that requires a reduction or apportionment of healing period benefits (nor has defendant cited any such authority) because claimant also is suffering some other concurrent disability. casual connection-entitlement-permanent disability It is determined that the right shoulder injury of March 15, 1989, was the cause of permanent disability, that claimant has sustained an industrial disability of 35 percent to the body as a whole and that claimant is entitled to 175 weeks of permanent partial disability benefits. As shown above, Dr. Crouse specifically stated that claimant's right shoulder complaints were caused by his work and Dr. Delbridge proceeded to treat claimant on the basis of the right shoulder injury which occurred on or about March 15, 1989, when he injured his shoulder tightening a nut with a large wrench. Dr. Delbridge persisted in his diagnosis of rotator cuff injury on June 20, 1990, at which time he stated, "He still has rotator cuff problems of his right shoulder." (ex. 1, p. 4). Page 7 In his final letter, dated January 28, 1991, Dr. Delbridge stated, "Mr. Tarr indicated that he had been working as a mill operator at Deere & Company until March of 1989 when he jerked his shoulder and since then has been unable to work because he can't lift his shoulder past about 90 degrees." (ex. 1, p. 1). Dr. Delbridge added, "When he was seen on 9-13-89, I made note that he had only one upper extremity and was doubtful that he would return to work." (ex. 1, p. 2). Dr. Delbridge further stated on January 28, 1981: On 1-17-90, I note that Mr. Tarr has a job as a machinist which requires a great deal of use of his right upper extremity. He was noted on 1-17-90 to have a loss of abduction of about 30 degrees of his arm and weakness in abduction as well. By 2-28-90, I was convinced that he was not going to return to work. I was also very hesitant recommending operative intervention for his right upper extremity since he would have to have virtually total care if this were done. ... Mr. Tarr continued to have considerable weakness in his right shoulder. On 9-25-90 he could, as a result of rehabilitation and therapy, go through almost a virtual entire range of motion of his shoulder but he was very weak against any resistance whatsoever. Ronald Tarr's diagnosis as of 9-25-90 was impingement syndrome, right shoulder, and rotator cuff injury, right shoulder with possible partial thickness or small rotator cuff tear. As a result of his injury to his right shoulder which incurred while at Deere & Company in March of 1989. He has an impairment of 8% of the right upper extremity. Since this involves a rotator cuff, an 8% impairment of the right upper extremity converts to a 5% whole man impairment. It is unlikely that Mr. Tarr will recover enough to return to his job. Because of his opposite arm being amputated, impairment of his right upper extremity virtually disqualifies him from any job that requires more than minimal abduction and flexion strength of his right upper extremity. (exhibit 1, pages 2 & 3) Wherefore, it is determined that the injury of on or about March 15, 1989, was the cause of permanent disability and claimant has sustained a 5 percent physical impairment to the body as a whole. Charles Buck, M.D., the medical director for defendant, Page 8 who is also board certified in occupational medicine, a subspeciality of preventative medicine (tr. pp. 173-174), originally testified that he did not believe that claimant had a serious or permanent injury (tr. pp. 202, 203 & 206), but later acknowledged that he did believe claimant sustained a significant problem (tr. p. 203) and permanent impairment (tr. p. 220). However, it was his opinion that claimant had sustained bicipital tendenitis and that claimant's injury was confined to the humerus (tr. pp. 183-189; ex. 11). Dr. Buck also did not think that the records of Dr. Bendixen, Dr. Crouse or Dr. Delbridge indicated a rotator cuff tear (tr. p. 201). Dr. Buck did not believe that claimant had sustained a rotator cuff injury because x-rays of the shoulder on September 13, 1989, basically showed no bony abnormalities (ex. 1, p. 9). An arthrogram on the right shoulder on September 19, 1989, was negative and showed no evidence of a tear (ex. 2, p. 2). An MRI of the right shoulder, requested by Dr. Delbridge and performed on September 28, 1989, reported that the rotator cuff appeared to be in tact and the joint otherwise appeared to be normal (ex. 1, p. 8; tr. pp. 187, 189-194 & 224). Dr. Buck said that claimant's complaints were consistent with a rotator cuff injury (tr. p. 182) and compatible with it (tr. p. 187), but there was no evidence to support a rotator cuff tear (tr. p. 194). Moreover, he said if claimant had a rotator cuff tear it was located in the humerus or arm bone (tr. pp. 195 & 221). Dr. Delbridge only testified to rotator cuff injury and possible rotator cuff tear. Dr. Buck granted that he examined claimant on January 2, 1992, just a few days prior to hearing (tr. p. 176) at the request of employer's attorney (tr. pp. 214-215). Claimant's attorney contended in his brief and at hearing that it is difficult to determine whether Dr. Buck conducted a medical examination or a legal examination (tr. pp. 214-215; claimant's brief p. 13). Dr. Buck admitted that bicipital tendonitis was within the rotator cuff (tr. p. 235). Dr. Buck admitted claimant had crepitation in his shoulder and did not have normal fluid motion with the right shoulder. This conflict of testimony between these two medical experts, Dr. Buck and Dr. Delbridge, is resolved in favor of Dr. Delbridge who was the treating orthopedic surgeon for over one year because he had the best opportunity to observe claimant and had the ultimate responsibility for the success or failure of his treatment. Dr. Delbridge saw claimant on several occasions whereas Dr. Buck only saw claimant for a few minutes on one occasion just a few days prior to hearing for litigation purposes. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Also an experts qualifications must be taken into consideration and the opinion of a practicing orthopedic surgeon is preferred over the medical director of the defendant who had no experience in the field of orthopedic medicine. Reiland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Page 9 Commissioner 89 (1979); Lemon v. Georgia Pacific Corp., I Iowa Industrial Commissioner Report 204, 205 (App. Dec. 1981); Clement v. Southland Corp, I Iowa Industrial Commissioner Report 56, 58 (1981). Claimant demonstrated several times at hearing and to various doctors that the pain was in the front of his right shoulder and he did not point to his arm. Claimant always complained to the doctors about his shoulder; he never complained about his arm or the bicipital tendon. A rotator cuff injury is considered to be an injury to the body as a whole. Payton v. Sheller Globe Corp., file 895808 (filed December 10, 1991) (on appeal); Tompkins v. John Morrell, file 946532 (filed December 23, 1991) (on appeal); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (1982); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). All of the doctors, even Dr. Buck, referred to the injury as a shoulder injury. None of them, including Dr. Buck, called it an arm injury when talking about it. On January 7, 1990, Dr. Delbridge noted a loss of abduction of about 30 degrees and weakness in abduction as well (ex. 1, pp. 2 & 6). Former Industrial Commissioner Robert C. Landess determined that a loss of range of motion was sufficient to cause an injury to the shoulder to be an injury to the body as a whole. Fullerton v. Caterpiller Tractor Co., IV Iowa Industrial Commissioner Report 135 (App. Dec. 1984). Claimant's greatest impairment and disability is his limited ability to reach out with his arm or to elevate his arm. These are functions of the entire shoulder, both sides of the glenohumeral joint, and not just the arm alone. Therefore, it is determined that the injury to claimant's shoulder is an injury to the body as a whole. Merritt v. Quaker Oats, file 705825 (filed March 7, 1988) (aff'd November 9, 1989); Brant v. Iowa Power and Light Company, file 492024 (filed April 9, 1987). Wherefore, it is determined that the injury to the right shoulder which claimant sustained on or about March 15, 1989, is an injury to the body as a whole and claimant is entitled to industrial disability benefits. Claimant, born July 15, 1946, was 42 years old at the time of the injury and 44 years old at the time of the hearing. Claimant's industrial disability is increased because it occurred during the peak years in his earnings career. McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979). Claimant has the advantage of a high school education and a neuropsychological consultant, Richard J. Robert, Page 10 Ph.D., determined on August 6, 1989, that claimant has above average intelligence (ex. 3, p. 62). In addition, claimant has received general machinist training, some welding training and some marketing training (tr. pp. 41-42). Therefore, claimant's education and general intelligence level should not be an impairment to finding new employment (tr. p. 40). The evidence shows that claimant has a enormous number of health problems and prior injuries (ex. 10, pp. 21-22; ex. 3, pp. 62-65). As a result of an automobile accident in 1979, claimant's left arm was amputated distal to the left elbow. Claimant also suffers from a vascular problem in the extremities and had one operation prior to this injury and has had 11 vascular surgeries since this injury. Dr. Crouse also performed ulnar nerve surgery on the right arm after this injury. Claimant has been treated for narcolepsy, elbow problems, neck problems and back problems (tr. pp. 87, 90, 95 & 113). Claimant's counsel pointed out in his opening remarks that claimant continued to work following all of his injuries and accidents (tr. p. 29). Claimant testified that in spite of all of his health problems, he always returned to work prior to this injury (tr. pp. 89 & 95). After this injury, Dr. Crouse restricted claimant's activities specifically due to this injury to his shoulder, even though claimant had cervical and thoracic and lumbar complaints at the same time and even though he had the ulnar decompression subsequent to this injury. All of claimant's prior ailments and injuries are taken into consideration in the determination of industrial disability in this case. However, as defendant's counsel pointed out, the amputation of the left arm should not properly increase industrial disability owed by employer because claimant's proper remedy for that injury now is the Second Injury Fund of Iowa (tr. p. 36). Iowa Code section 85.64 provides as follows: If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. The Second Injury Fund of Iowa is not a defendant in this case. All of the other ailments and injuries are taken into consideration and it is determined that they do not increase claimant's industrial disability for the reason that he always returned to work until this injury. This injury does prevent claimant from returning to his work as a machinist for employer. Claimant is a career Page 11 employee of employer starting to work for employer when he was age 18 right after graduation from high school (tr. p. 43). One of the major items of industrial disability is the fact that claimant is foreclosed from performing his former employment with employer. Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984); Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979). Dr. Delbridge was aware of claimant's health history and specifically tailored his permanent impairment to the injury to his right shoulder (ex. 1, p. 2). Claimant's plans for retirement are taken into consideration in the determination of industrial disability (tr. p. 40). There is no evidence that claimant made any attempt to find work within his remaining capabilities. He did not seek employment with employer, nor did employer attempt to accommodate claimant with work which he could do. On October 7, 1989, claimant was awarded social security disability benefits beginning in September 1989, based upon a determination that claimant had become disabled on March 21, 1989 (ex. 8, p. 1). It should be noted that the determination of permanent disability by the social security administration was based on claimant's entire health condition and not simply the right shoulder injury. Also, the Social Security Administration follows different standards. Thus, it clearly appears that claimant has retired due to his overall health condition and receives $936 a month from the Social Security Administration and $757.90 from employer's disability pension plan (tr. p. 40). The social security amount of $936 has probably been increased for cost of living a number of times since October 7, 1989. Thus, claimant is probably receiving in excess of $1700 per month in disability retirement benefits. Claimant testified that his primary disability is that he cannot elevate his right arm and he cannot reach forward with it (tr. pp. 79, 85, 86 & 135). Wherefore, based upon () an impingement syndrome, right shoulder; and rotator cuff injury, right shoulder with possible partial thickness or small rotator cuff tear; () that caused claimant to be off work from March 21, 1989, until October 11, 1989; () which caused claimant to sustain an 8 percent permanent impairment to the right upper extremity which Dr. Delbridge stated was a 5 percent permanent impairment to the body as a whole; () which foreclosed claimant from returning to his 34-year career employment with employer since 1965; () when claimant was in his early 40's and near the peak years of his earnings career; () and limiting this award to the amount of impairment to the shoulder alone, independent of claimant's other health problems; () considering claimant's retirement on disability due to his health; () and based upon all of the other factors used to determine industrial disability, Page 12 Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); () based upon all of the evidence in this case; and () based upon agency expertise, [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained a 35 percent industrial disability to the body as a whole and is entitled to 175 weeks of permanent partial disability benefits. apportionment No apportionment is required for the reason that the allowance in this case is based entirely upon the right shoulder injury which occurred on or about March 15, 1989. It is not based on claimant's numerous other injuries and health complaints. With respect to the amputated left arm, the proper resource is the Second Injury Fund. With respect to all other illnesses and injuries, claimant did not demonstrate that they increased his industrial disability because he always returned to work and was able to perform his job. He has the same ability now, except he is foreclosed from this job due to this injury. Moreover, defendant did not demonstrate what portion, if any, of claimant's disability is identifiable and independently attributable to his condition prior to the instant injury. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Voshell v. William Roy's Remodeling, file 805464 (App. Dec. February 27, 1991); Tussing v. George A. Hormel & Co., 417 N.W.2d 457 (Iowa 1990); Varied Industries v. Sumner, 353 N.W.2d 407 (Iowa 1984). conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury to his right shoulder on or about March 15, 1989, which arose out of and in the course of employment with employer. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That the injury was the cause of temporary disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to 29.143 weeks of healing period benefits for the period from March 21, 1989 to October 11, 1989. That the injury was the cause of permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607. That the injury is an injury to the body as a whole and is not a loss to a scheduled member. Page 13 That claimant has sustained a 35 percent industrial disability to the body as a whole. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). That claimant is entitled to 175 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That no apportionment is required to be made in this case. order THEREFORE, IT IS ORDERED: That defendant pay to claimant twenty-nine point one four three (29.143) weeks of healing period benefits for the period from March 21, 1989 to October 11, 1989, at the stipulated rate of four hundred forty-three and 78/100 dollars ($443.78) per week in the total amount of twelve thousand nine hundred thirty-three and 08/100 dollars ($12,933.08) commencing on March 21, 1989. That defendant pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the stipulated rate of four hundred forty-three and 78/100 dollars ($443.78) per week in the total amount of seventy-seven thousand six hundred sixty-one and 50/100 dollars ($77,661.50) commencing on October 11, 1989. That defendant is entitled to a credit for any pay that claimant received when he attempted to return to work for a few days in May and September of 1989. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendant pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. In addition, claimant is allowed two thousand four hundred eight dollars ($248) in costs attached to the prehearing report for the following items: Medical report of Orthopaedic Specialists - $18; industrial commissioner filing fee - $65 and the medical evaluation and report of Dr. Delbridge - $165. The charges for medical records and a conference with a doctor are trial preparation expenses for which claimant should bear the burden and are not considered to be allowable costs pursuant to rule 343 IAC 4.33. That defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1992. Page 14 ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert D. Fulton Attorney at Law 600 First National Bldg PO Box 2634 Waterloo, IA 50704-2634 Mr. John W. Rathert Attorney at Law PO Box 178 Waterloo, Iowa 50704-0178 Page 1 51107 51108.50 51401 51402.20 51402.30 51801 1402.40 1402.40 1803.1 1803 51806 Filed March 5, 1992 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : RONALD TARR, : : Claimant, : File No. 951330 : vs. : : A R B I T R A T I O N JOHN DEERE WATERLOO WORKS, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51107 51108.50 51401 51402.20 51402.30 It was determined that claimant sustained an injury arising out of and in the course of employment with employer when his right shoulder went crunch while tightening a large bolt on his machine with a very large wrench. 51801 Claimant awarded healing period benefits from the date he was taken off work until it was determined by a detailed look at the medical records and doctor's notes that he attained maximum medical improvement. He was unable to return to work or substantially similar work. 1402.40 It was determined that claimant was entitled to healing period benefits for the period he proved he was entitled to. The fact that he suffered other health problems and disabilities during this period is immaterial. The workers' compensation statute and case law contains no reduction or apportionment of healing period benefits simply because claimant is concurrently disabled for other reasons or is entitled to other disability benefits for some other reason. 1402.40 1803.10 A shoulder injury was determined to be an injury to the body as a whole. A loss of range of motion of the shoulder qualifies a shoulder injury as an injury to the body as a whole. The fact that claimant could not reach out with his arm or elevate his arm are indications that the shoulder injury is an injury to the body as a whole because these are functions of the entire shoulder, both sides of the glenohumeral joint, and not just the arm alone. Further, a rotator cuff injury is generally considered to be an injury to the body as a whole. Several cites. Page 2 1803 The fact that claimant had sustained an amputated left arm prior to this injury to his right shoulder could not be used to increase his industrial disability because the resource for that recovery would be the Second Injury Fund of Iowa. Claimant had an enormous amount of other accidents, injuries, and health impairments to his neck, back, elbow, narcolepsy and a vascular disease that caused 12 surgeries. These were taken into consideration but did not increase the industrial disability because claimant had always been able to work and to return to work after each of these specific problems. He was awarded substantial industrial disability because this injury to the right shoulder foreclosed claimant from returning to his old employment as a machinist because of this injury alone and not coupled with any other factors. Claimant was age 40, had a high school education with some additional training, he was a career employee of this employer since age 18, who had sustained an impingement syndrome, right shoulder, rotator cuff injury, with a possible partial thickness tear, rated at 8 percent of the right upper extremity and 5 percent of the body as a whole. Claimant had applied for and was receiving social security disability benefits and employer disability retirement benefits in the amount of approximately $1,700 per month and thus, he was considered to be retired. He made no search for new employment. It was determined that claimant sustained a 35 percent industrial disability to the body as a whole. 51806 Defendant is not entitled to an apportionment because the award was based entirely on this injury and because defendant did not show any independent identifiable portion of preexisting disability. 52907 Some costs allowed. Some costs disallowed. 52906 A medical bill raised for the first time at hearing was not addressed because (1) it was not raised at the prehearing conference, (2) medical benefits were not designated as hearing issues on the hearing assignment order, and (3) the prehearing report showed that medical benefits were no longer in dispute. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ THOMAS F HART, : : Claimant, : File No. 951370 : vs. : A R B I T R A T I O N : ARCHER DANIELS MIDLAND, : D E C I S I O N : Self-Insured, : Employer, : Defendant. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding brought by Thomas F. Hart against his employer Archer Daniels Midland Company seeking determination of the extent of permanent partial disability caused by the injury of June 17, 1990. It was stipulated that claimant has a 5 percent disability of his left leg and the award is to be made under section 85.34(2)(s). Claimant's petition for a commutation which was originally filed in this proceeding is dismissed without prejudice. The case was heard at Davenport, Iowa, on March 31, 1994. The record consists of testimony from Thomas F. Hart, claimant's exhibits 1 through 10 and defendant's exhibits 1 through 5. FINDINGS OF FACT Thomas F. Hart fell from a ladder and sustained a compound fracture of his right lower leg on June 17, 1990. He underwent surgical fixation of the fracture. He was hospitalized until August 8, 1990. (claimant's exhibit 6, page 9). After an extended period of recuperation he resumed work on January 25, 1991. Xerxes R. Colah was the primary treating physician and surgeon. The fractures healed. Claimant has developed arthritis and the tibia and fibula have grown together. He has residual problems with swelling and restricted motion at his ankle joint. (cl. ex. 7, p. 20; cl. ex. 10, pp. 12, 15 and 27; defendant's exs. 1, 2). Claimant is able to stand and walk but he has problems with pain and swelling in his lower leg. He is unable to run, turn sharply or climb ladders. He has difficulty on stairs and uneven ground. Claimant has been evaluated by Dr. Colah as having a 70 percent impairment of his right lower extremity. (cl. ex. 10, pp. 24-26). Claimant has also been evaluated by Camilla Page 2 J. Frederick, M.D., and by John S. Kock, M.D., who have both determined that claimant has a 35 percent impairment of his right lower extremity. It appears that Drs. Frederick and Kock performed their evaluations solely upon range of motion. It does not appear that they assigned any impairment for the arthritis which is developing and the swelling problem which affects claimant's use of his leg. On the other hand, Dr. Colah indicated that he gave claimant the same rating as though an amputation had occurred. It is found that the principle uses of a foot and leg are standing and ambulation. The claimant is clearly impaired in this regard. It is only the extent of impairment that is disputed. As indicated by Dr. Colah, the AMA Guides are an arbitrary means of determining a rating of impairment. Impairment is not the same as disability. It is found that Thomas Hart has a 45 percent disability of his right leg as a result of the injury he sustained on June 17, 1990. CONCLUSIONS OF LAW The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Permanent partial disabilities are classified as either scheduled or unscheduled. Compensation for scheduled permanent partial disability is determined under Iowa Code section 85.34(2)(a) - (t) according to the functional loss of use of the member without considering the impact of the injury upon the individual's earnings or earning capacity. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921). It is well recognized that in section 85.34(2)(o) and (s) of the Code the words which appear are "loss of." The words "impairment" or "disability" do not appear. The term "loss of" has been construed by the Iowa Supreme Court to mean "loss of use." The statute is not designed to be limited to ratings provided by any standardized table or guide. Soukup, 222 Iowa 272, 268 N.W. 598 (1936). Agency rule 343 IAC 2.4 is not mandatory or exclusive. It is merely a permissive guide which may be used. In this case it is noted that Thomas Hart has retained the ability to use his right leg for walking and standing, the things for which legs are commonly used. He has lost the ability to run, jog, climb ladders, and perform similar functions. He is afflicted with swelling if he sits for extended periods. It is determined that Thomas Hart has experienced a 45 percent loss of use of his right leg under the provisions of Iowa Code section 85.34(2)(o). Page 3 Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro, 332 N.W.2d 886. The 5 percent disability of the left leg is equivalent to 2 percent of the whole person. The 45 percent disability of the right leg is equivalent to 18 percent of the whole person. These combine to a 20 percent disability which, under section 85.34(2)(s), entitles claimant to 100 weeks of compensation for permanent partial disability. Claimant is entitled to recover the costs set forth on his affidavit of costs except that the fee for Dr. Colah should be limited to $150 pursuant to Code section 622.72. The net result is therefore $343.26. ORDER IT IS THEREFORE ORDERED that defendant pay Thomas Hart one hundred (100) weeks of compensation for permanent partial disability at the stipulated rate of three hundred seventy-three and 36/100 dollars ($373.36) per week. Defendant is entitled to credit for the eighty (80) weeks of permanent partial disability compensation previously paid. The balance of twenty (20) weeks shall be paid in a lump sum together with interest pursuant to section 85.30. It is further ordered that defendant pay the costs of this action in the amount of three hundred forty-three and 26/100 dollars ($343.26). It is further ordered that defendant pay the filing fee of sixty-five dollars ($65) to this agency within twenty (20) days of the filing of this decision. It is further ordered that defendant file claim activity reports as requested by this agency. Signed and filed this __________ day of April, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. John J. Wolfe, Jr Attorney at Law 402 6th Ave S Clinton, Iowa 52732 Mr. James E. Shipman Attorney at Law 115 3rd St SE STE 1200 Cedar Rapids, Iowa 52401 1402.40 1808 52907 Filed April 15, 1994 Micheal G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ THOMAS F HART, Claimant, File No. 951370 vs. A R B I T R A T I O N ARCHER DANIELS MIDLAND, D E C I S I O N Self-Insured, Employer, Defendant. ------------------------------------------------------------ 1402.40 1808 Where opinions of physicians differed, claimant was found to have a 45 percent loss of use of his right leg and a 45 percent disability under section 85.34(2)(s). 52907 Expert witness fee limited to $150 pursuant to section 622.72. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT GLENN NEWELL, : : Claimant, : File No. 951662 : vs. : : A R B I T R A T I O N ARATEX SERVICES, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Robert Glenn Newell, claimant, against Aratex Services, Inc., self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury sustained on March 19, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on August 13, 1992, in Sioux City, Iowa. The record was considered fully submitted at the close of the hearing. The record in this case consists of claimant's exhibits 1 through 44 and defendant's exhibits 45 through 60. The claimant was present and testified. Also present and testifying were Patricia Newell, Rodney Floyd Sitzmann, Kenny Hartkopp, and Rick Bryce. ISSUES Pursuant to the prehearing report and order dated August 13, 1992, and statements made by the parties at the hearing, the following issues have been presented for resolution: 1. Whether claimant sustained an injury on March 19, 1990, which arose out of and in the course of employment with employer; 2. Whether the alleged injury is the cause of temporary and permanent disability; 3. The extent of entitlement to weekly compensation for temporary total disability or healing period benefits, if defendants is found liable for the injury; 4. The times off work for which claimant seeks either temporary total disability or healing period benefits; 5. The extent of entitlement to weekly compensation for permanent disability, if defendant is liable for the injury; 6. Whether defendant is liable for Dr. Blume's medical bill which was in excess of $500; Page 2 7. Whether claimant's medical expenses are causally connected to his work injury; 8. Whether claimant is entitled to recover penalty benefits under Iowa Code section 86.13; and 9. Whether claimant is entitled to vocational rehabilitation benefits under Iowa Code section 85.70. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on March 21, 1951, and completed the twelfth grade of school. Upon graduation from high school in 1969, claimant served one year in the United States Marines. He was discharged after it was discovered he had diabetes mellitus. Claimant attended Morningside College in Sioux City, Iowa, and in 1974 received a bachelor's degree in business administration. After graduating from college, claimant worked as an accounting supervisor at a rural electric cooperative in Estherville, Iowa. He worked there from 1974 to 1975 and then moved to Sac County Rural Electric Cooperative for better pay. He worked in Sac County for approximately one year and returned to Sioux City in November 1976. In Sioux City he worked seven years as a general manager for Midtown Music and Amusement Company. The business was sold in 1983 and he then took a job with Iowa Beef Processors in Dakota City, Nebraska. He was hired as a supply supervisor. He worked there about one year. On July 23, 1984, he commenced working for Aratex. Claimant was hired as a branch manager and worked in this capacity for two and a half years. He was then made a special projects coordinator and put in charge of Iowa Beef accounts receivable. Generally, claimant's duties with employer during his five years of service included personnel training, direct sales and route running. Claimant's deposition was taken on March 5, 1992, and admitted into evidence in lieu of extensive testimony at hearing. In his deposition testimony, claimant thoroughly described the duties of a route driver. He stated that even though he was a special projects coordinator, he was required to run a weekly route in the summertime and less frequently during the wintertime. Claimant admitted that he wasn't very fond of route work. The job consisted of being on the road an entire day, picking up and delivering clothes, towels and rugs. This involved heavy lifting and carrying of items over the shoulder. Claimant testified that on March 19, 1990, he was unloading a truck, throwing bags, mats and mops, and other items off the truck when he felt pain in his hips, back and neck. In his deposition he stated that while he didn't have any pain in his arm, he felt pain every time he raised his left shoulder. Claimant testified that he sought medical Page 3 treatment from his family physician, J.S. Burgfechtel, M.D., and Mark S. Taylor, D.O., one of his partners. Despite his symptoms, claimant missed no time from work. On May 24, 1990, claimant was asked to do a route by himself and he refused because of his medical problems. He was immediately suspended by Kenneth Hartkopp, general manager. On June 8, 1990, the suspension was lifted and claimant was placed on six months medical leave. Because claimant was not able to return to work after six months, he was terminated on November 19, 1990. Claimant has not worked since May 24, 1990. He received workers' compensation benefits from May 24, 1990 through March 6, 1991. The pertinent medical evidence of record reveals that claimant was diagnosed with diabetes mellitus in 1974. The medical records indicate that claimant has been treated by J.S. Burgfechtel, M.D., at Midtown Medical Clinic since February 10, 1983, for various medical problems. He was hospitalized on June 12, 1984, with complaints of back and neck pain after falling down three steps. Lumbosacral spine x-rays revealed spina bifida. In January 1987, he hurt his back while unloading laundry. X-rays of the dorsal and cervical spine taken February 17, 1987, were normal. In August 1987 claimant was hospitalized due to complications from diabetes. On April 27, 1989, claimant was admitted to St. Luke's Regional Medical Center for evaluation of chest pain and shortness of breath. A treadmill exercise test was negative. Pulmonary function studies were normal. Coronary artery disease was ruled out (exhibits 44-49). The record contains a first report of injury indicating that claimant reported to employer that he suffered lower back strain on March 19, 1990, during the course of employment with employer (ex. 3). Claimant presented to the emergency room at St. Luke's Medical Center on March 19, 1990, with complaints of low back discomfort. Lumbosacral spine x-rays revealed minimal spurring at L3, L4 and L5 with intact bones and disc spaces and normal alignment. A diagnosis of acute lumbosacral sprain with spasm was made (ex. 4). Claimant testified that he took vacation from March 20 through April 1, 1990. The medical records indicate that Dr. Burgfechtel took claimant off work on March 23, 1990, and released him to return to work on April 2, 1990, with a 30-pound lifting restriction for one week then, as tolerated. Follow-up evaluations were conducted on April 6 and April 20, 1990. Claimant was given pain medication and back care exercises (ex 5, pages 1-5). Claimant testified that he last worked for employer on May 23, 1990. On May 24, 1990, claimant was asked by Kenny Hartkopp, general manager at Aratex, to run a route by himself. Claimant refused unless someone was assigned to help him because of his 30-pound lifting restriction. He was told by Mr. Hartkopp to make smaller bundles but claimant refused. Therefore, he was suspended indefinitely, without pay, pending investigation. A copy of the suspension notice is contained at exhibit 30. Page 4 On May 24, 1990, claimant saw Dr. Burgfechtel with complaints of left neck and shoulder pain. On examination, his neck was stiff and tight. He was very sensitive in the left posterior lower paracervical muscles of the left trapezius and left shoulder. Abduction of the left shoulder was accomplished to about 80 degrees. Conservative therapy and medication were prescribed (ex. 5, p. 5). Dr. Burgfechtel referred claimant to St. Luke's for physical therapy on May 31, 1990. On June 8, 1990, after investigation of claimant's medical condition, Mr. Hartkopp lifted claimant's suspension. Claimant was then placed on medical leave of absence effective May 25, 1990. His note stated that "Aratex Company Policy provides all employees with a medical leave of absence up to 180 days in any one year period if the leave is authorized by a competent physician." He informed claimant that his medical leave expired on November 20, 1990, and his employment would be terminated at that time unless he was released by his physician to return to full duty (ex. 31). Claimant continued to see Dr. Burgfechtel for complaints of neck and left arm pain. He also continued with physical therapy at St. Luke's. On June 21, 1990, claimant underwent EMG studies which revealed no electrodiagnostic evidence of left upper extremity peripheral entrapment neuropathy plexopathy or cervical radiculopathy (ex. 7). On July 3, 1990, Henrietta Scholten, physical therapist at St. Luke's, reported that claimant was seen for 11 physical therapy visits. His pain now appeared to be localized in the left shoulder along the supraspinatus with the low back and neck pain improved (ex. 6). Because of claimant's persistent neck, left trapezius and left shoulder complaints, Dr. Burgfechtel referred claimant to W.O. Samuelson, M.D. Dr. Samuelson saw claimant on July 25, 1990. On examination he had tenderness with external rotation of the left shoulder and was limited in the last 30 degrees of external rotation. X-rays showed no abnormality of the glenohumeral joint. Dr. Samuelson diagnosed rotator cuff strain and impingement syndrome. Claimant was prescribed Motrin and offered steroid injections (ex. 9). On October 9, 1990, claimant underwent a vocational rehabilitation physical examination and history with the Iowa Division of Vocational Rehabilitation. It was recommended that he avoid employment requiring heavy arm lifting or other activity which would produce neck or back symptoms (ex. 10). On July 31, 1990, Janet Palmer, claims adjuster for Alexsis, wrote to Dr. Burgfechtel requesting an assessment of claimant's status. Dr. Burgfechtel referred her to Dr. Samuelson (ex. 10). On November 26, 1990, Dr. Samuelson Page 5 wrote to Ms. Palmer: Robert Newell has continued to have problems with recurrent pain and stiffness in the shoulder which limits him in overhead lifting and overhead type work as well as lifting. At this point in time, he has not reached maximum medical improvement and he is not ready for any partial impairment rating. Most people with a rotator cuff strain have the symptoms resolve over the course of a several months up to a year or two. (exhibit 9) Claimant was referred by Alexsis to John J. Dougherty, M.D., for evaluation on December 11, 1990, with reference to his left shoulder complaints. Dr. Dougherty was unclear as to the cause of claimant's shoulder complaints, nevertheless, he injected his shoulder and saw him again on December 26, 1990. At this time, he recommended an arthrogram. This was performed on December 28, 1990, at Marian Health Center. The radiologist's impression was rotator cuff tear (ex. 12). Dr. Dougherty saw claimant on January 4, 1991, and at this time recommended tomograms. He speculated that claimant probably had a torn rotator cuff. Tomograms taken at St. Luke's on January 7, 1991, were negative. Nevertheless, Dr. Dougherty recommended repair of the rotator cuff (ex. 11). On January 9, 1991, Ms. Palmer wrote to Dr. Samuelson. He responded on January 29, 1991. Dr. Samuelson stated that claimant had a rotator cuff syndrome but would not rate him as having any permanent partial impairment at this time nor plan any surgical procedures at this time (ex. 51, p. 2). Apparently there was some communication between Dr. Dougherty, Alexsis and claimant's attorney. By way of clarification on February 15, 1991, Dr. Dougherty wrote to claimant's attorney that, "I did not disagree with Dr. Samuelson's findings that his rotator cuff problems came from his employment." He also stated that in view of the fact that claimant's problem has persisted for a long period of time, surgery may be indicated if he desires to have it done. During the course of the above events, Alexsis, the workers' compensation administrator for Aratex Services, was handling claimant's workers' compensation case. Benefits were instituted on May 24, 1990. On February 4, 1991, Ms. Palmer, claims adjuster, notified claimant that in view of recently received medical information, claimant's benefits will be terminated 30 days after receipt of her letter or upon return to work. The reason cited for termination is that doctors indicate that his current condition is not work related. Claimant was advised that he could submit any evidence or documents disputing or contradicting the reasons given for termination (ex. 41). Page 6 On February 16, 1991, claimant's attorney sent Ms. Palmer a copy of Dr. Dougherty's letter of February 15, 1991 (SEE: ex. 14). Mr. Mahr, claimant's attorney, stated, "We believe that your Auxier notice is totally inappropriate and that Mr. Newell should remain on temporary total disability until such time as he recuperates from this surgery." (ex. 42). On April 16, 1991, Ms. Palmer responded to claimant's attorney and stated that, "At this time, we have reviewed the above-captioned claim and are standing by our denial of benefits beyond March 6, 1991." (ex. 43). Since claimant's workers' compensation benefits and medicals were cut off by Alexsis, claimant had no alternative but to seek treatment at the Veteran's Administration Medical Center in Sioux Falls, South Dakota. He presented there on August 26, 1991, October 7, 1991 and January 7, 1992, for treatment of left shoulder problems and diabetes mellitus (ex. 15, pp. 1-7). Claimant's attorney referred him to Pat Luce, D.C., for evaluation on January 13, 1992. Claimant presented with left shoulder complaints and after examination, Dr. Luce found that these complaints were consistent with the objective findings. He stated that claimant has reached maximum medical improvement but qualified that with an opinion that he may need surgical intervention. He gave him a 10 percent permanent impairment rating to the left upper extremity 5 percent the body as a whole (ex. 18). Subsequently, claimant developed depression and presented to the VAMC on March 17, 1992, with psychological symptoms. Diagnosis of adjustment disorder with depression and dysthymia was made (ex. 20). On March 24, 1992, claimant had an MRI examination of the left shoulder at Bishop Clarkson Memorial Hospital in Omaha, Nebraska. The results revealed supraspinatus tendonitis with evidence of tendon degeneration and a partial tearing of the articulating surface of the supraspinatus and a possibility of a small perforation within the supraspinatus tendon (ex. 21). Claimant returned to Dr. Dougherty on April 7, 1992, requesting surgery for treatment of his left shoulder problems. Dr. Dougherty noted that he offered claimant surgery in January of 1991, but he did not want it at that time. Based on this examination, Dr. Dougherty conjectured that claimant sustained about 7 percent permanent impairment of his left upper extremity. He suggested exploration of the shoulder and repair of the rotator cuff. He also recommended arthroscopy to evaluate the size of the tear and to determine whether anything could be done arthroscopically. He noted, "If he were to undergo one or both of these the impairment rating may change soon. Also, he would have to be re-evaluated after he reached his maximum medical improvement following the surgery." (ex. 22). Claimant's attorney referred him to Horst G. Blume, M.D., for evaluation on March 16, 1992, Dr. Blume sent Page 7 claimant to Bishop Clarkson Hospital for the MRI scan referred to above. On May 29, 1992, Dr. Blume reported that, in his opinion, claimant has a permanent partial impairment to the left upper extremity of 12 percent which would convert to 7 percent to the body as a whole. His restrictions included an inability to use his left hand for simple grasping, crawling, climbing ladders, reaching overhead, lifting more than 20 pounds and carrying or frequently lifting more than 10 pounds. (exs. 24, 54). At the request of defendant's attorney, Paul From, M.D., reviewed claimant's records and opined that claimant's depression is not the result of his rotator cuff tear and his physical problems are basically due to his diabetes (ex. 55). CONCLUSIONS OF LAW The first issue to be determined is whether claimant sustained an injury on March 19, 1990, arising out of and in the course of his employment with employer. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 19, 1990, which arose out of and in the course of his 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. The supreme court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case 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, yet an injury to the Page 8 health may be a personal injury. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the 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. The supreme court has also recognized that a cumulative injury may occur over a period of time. The injury in such cases occurs when, because of pain or physical disability, the claimant is compelled to leave work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). Moreover, claimant's last employer becomes liable for the cumulative injury, even if the incidents that lead to the ultimate injury do not occur while a claimant is employed with the last employer. McKeever, 379 N.W.2d at 376; See also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 434-35 (Iowa 1984). The greater weight of the uncontroverted medical evidence is that claimant was asymptomatic as to left shoulder pain prior to March 19, 1990. At that time, he initially experienced back and neck pain which resolved with treatment. As early as May 24, 1990, he manifested left shoulder symptomatology (ex. 5). Three treating physicians, Dr. Burgfechtel, Dr. Samuelson and Dr. Dougherty relate claimant's symptoms to his work activity. Defendant has presented no evidence to the contrary. Accordingly, claimant has met his burden of proof in this regard and has shown by a preponderance of the evidence that he sustained a left shoulder injury arising out of and in the course of employment with employer. Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. Claimant has the burden of proving by a preponderance of the evidence that the injury of March 19, 1990, is causally related to the disability on which he now bases his 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 v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). 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 Page 9 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. The total evidence in this case supports the finding that claimant suffered a back, neck and left shoulder injury arising out of and in the course of employment with employer. Claimant's back and neck symptoms resolved, however, his left shoulder symptomatology has persisted. Physicians who have treated and/or examined claimant have causally connected claimant's impairment to his work activity. There is evidence that claimant has sustained some form of permanent disability. However, at this time, a determination of the extent of claimant's permanent disability would be premature. Claimant has not returned to any form of gainful employment since May 24, 1990. Claimant, at the present time is not medically capable of returning to his prior work or substantially similar employment and he has not achieved maximum medical recovery. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Defendant paid claimant healing period benefits from May 24, 1990 through March 6, 1991. Defendant shall pay claimant a running healing period award at the rate of $320.43 per week until the requirements of section 85.34(1) are met. Claimant shall promptly undergo appropriate surgical treatment as outlined by Dr. John Dougherty in exhibit 22. The cost of such treatment shall be borne by defendant under the terms of Iowa Code section 85.27. The next issue to be determined is whether claimant is entitled to penalty benefits under Iowa Code section 86.13 since employer terminated claimant's benefits on March 6, 1991. Iowa Code section 86.13 provides in pertinent part: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Page 10 In Auxier v. Woodward State Hospital School, 266 N.W.2d 139 (Iowa 1978), the Iowa Supreme Court declared a claimant's interest in workers' compensation a property right which cannot be taken without due process of law. Auxier also set out minimum requirements to achieve due process for notice of termination in cases other than those in which the employee has returned to work. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section, page 141. On February 4, 1991, Alexsis, Aratex Services workers' compensation administrator, sent claimant an Auxier notice stating that his benefits would terminate in 30 days because doctors indicate that his current condition was not work related (ex. 41). Claimant was given an opportunity to submit evidence disputing Alexsis' contentions. On February 16, 1991, claimant's attorney requested reconsideration based on Dr. Dougherty's letter of February 15, 1991, which stated that claimant's shoulder injuries are related to his employment (ex. 42). On April 16, 1991, Alexsis responded to claimant's attorney stating that, "At this time, we have reviewed the above-captioned claim and are standing by our denial of benefits beyond March 6, 1991." (ex. 43). It appears from the record that Alexsis either misconstrued or ignored Dr. Dougherty's February 15, 1991 letter in which he stated in part, "I did not disagree with Dr. Samuelson's findings that his rotator cuff problems came from his employment." (ex. 14). The only medical records available to Alexsis at the time they sent the Auxier notice were those of Dr. Burgfechtel, Dr. Samuelson and Dr. Dougherty. The undersigned can find no reference in the medical evidence through February 4, 1991, which indicates that claimant's left shoulder problems were not work related. Therefore, it is concluded that claimant's healing period benefits were terminated without reasonable or probable cause or excuse and a penalty in the amount of 50 percent of benefits unreasonably denied is hereby awarded to claimant. Thus, claimant is entitled to penalty benefits for the period from May 24, 1990 until such benefits are reinstituted. The next issue to be determined is whether the fees charged for medical services or supplies by Dr. Blume are fair and reasonable. Defendant's agreed to pay Dr. Blume $500 for his services. In addition, defendant received a bill for $200 for his report. Dr. Blume examined claimant on March 16, 1992, for purposes of providing an independent medical examination under Iowa Code section 85.39. Pursuant to his examination, Dr. Blume referred claimant to Bishop Clarkson Memorial Hospital for an MRI evaluation. The charges for the hospital evaluation totaled $470. In addition, Dr. Blume submitted a bill for $200. Witnesses called to testify only to an expert opinion shall receive compensation to be fixed by the deputy commissioner not to exceed $150 per day while so employed. Page 11 Iowa Code section 622.72 and Miller v. Lauridsen Foods, Inc., file numbers 801804 & 837426 (App. Dec. 1992). Accordingly, defendant shall pay to claimant $150 as costs for Dr. Blume's report dated May 29, 1992, found at exhibit 24. The final issue to be determined is whether claimant is entitled to vocational rehabilitation program benefits in accordance with Iowa Code section 85.70. In order to be eligible for 85.70 benefits, claimant must demonstrate that his injury resulted in some degree of permanent disability. Since a determination regarding permanent disability is premature at this time, awarding of vocational rehabilitation benefits is also premature. Therefore, such benefits are denied at this time. ORDER THEREFORE, IT IS ORDERED: That defendant pay claimant a running healing period award commencing March 6, 1991, and continuing until the requirements of Iowa Code section 85.34(1) are met, at the rate of three hundred twenty and 43/100 dollars ($320.43) per week. That claimant promptly commence surgical treatment as proposed by Dr. John Dougherty in exhibit 22. That defendant pay the costs of surgical exploration and repair or arthroscopic evaluation. That defendant pay a penalty in the amount of fifty (50) percent of healing period benefits for wrongfully suspending such benefits commencing March 6, 1991, and continuing until such benefits are paid. Iowa Code section 86.13. That defendant pay accrued weekly benefits in a lump sum. That defendant pay interest on weekly benefits awarded pursuant to Iowa Code section 85.30. That defendant pay the costs of this action pursuant to rule 343 IAC 4.33. That defendant file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1. That defendant pay to claimant one hundred fifty dollars ($150) as costs for Dr. Blume's report dated March 16, 1992. Signed and filed this ____ day of September, 1992. Page 12 ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Dennis J. Mahr Attorney at Law 318 Insurance Centre 507 7th St Sioux City, Ia 51101 Mr. Fred L. Morris Mr. Stephen Spencer Attorneys at Law PO Box 9130 Des Moines, Iowa 50306-9130 1802 4000 2907 Filed September 10, 1992 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT GLENN NEWELL, Claimant, File No. 951662 vs. A R B I T R A T I O N ARATEX SERVICES, INC., D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 1802 Claimant awarded a running period of healing period benefits from March 6, 1991 (the day he was terminated from benefits) until the criteria for ending such benefits under Iowa Code section 85.34(1) occurs. Claimant's left shoulder problems found to arise out of and in the course of employment with employer. Employer refused to pay for rotator cuff repair and terminated claimant's healing period benefits despite overwhelming medical evidence indicating that claimant needed surgery. 4000 Claimant awarded 50 percent penalty benefits commencing March 6, 1991 and continuing until benefits are reinstituted. Defendant terminated claimant's healing period benefits allegedly based on medical opinion that claimant's injury was not work related. Claimant submitted evidence to the contrary but defendant refused to reinstitute benefits. Termination of benefits was found to be unreasonable and without probable cause. 2907 The cost of an IME report limited to $150 pursuant to Iowa Code section 622.72. Miller v. Lauridsen Foods, Inc., file numbers 801804 & 837426 (App. Dec. 1992). BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JACKIE CARPENTER, : : Claimant, : : vs. : : File Nos. 972644 IMI CORNELIUS f/k/a SCHNEIDER : 951732 METAL MFG. CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE, : : Insurance Carrier, : Defendants. : ______________________________________________________________ STATEMENT OF THE CASE This is a consolidated proceeding in arbitration for workers' compensation claims brought by Jackie Carpenter, claimant, against IMI Cornelius, employer, hereinafter referred to as IMI, as insured by Sentry Insurance Company for an alleged injury on August 3, 1988 and as self-insured for an alleged injury on October 9, 1990. On March 10, 1994, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. Apparently, there is no dispute as to IMI's insurance status at the time of these injuries. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. IMI as insured by Sentry admitted that on August 3, 1988 claimant received an injury arising out of and in the course of employment with IMI. 2. Additional temporary total or healing period benefits beyond what has already been paid are not being sought in this proceeding. 3. If permanent partial disability benefits are awarded as a result of the August 3, 1988 injury, they shall begin as of January 29, 1990. If permanent partial disability benefits are Page 2 awarded as a result of the October 9, 1990 injury, they shall begin as of September 23, 1991. 4. At the time of the injury on August 3, 1988 claimant's gross rate of weekly compensation was $334.00; she was married; and she was entitled to four exemptions. Therefore, claimant's weekly rate of compensation is $222.61 according to the Industrial Commissioner's published rate booklet for this injury. 5. At the time of the injury on October 9, 1990, claimant's gross rate of weekly compensation was $350.00; she was married; and she was entitled to four exemptions. Therefore, claimant's weekly rate of compensation is $233.42 according to the Industrial Commissioner's published rate booklet for this injury. 6. Entitlement to medical benefits is not in dispute. ISSUE The only issue submitted by the parties for determination in this proceeding was the extent of claimant's entitlement to permanent disability benefits and penalty benefits, if any. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross- examination as to the nature and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. Claimant has worked for IMI, a manufacturer of ice machines, since 1980 and continues to do so at the present time. Prior to the second alleged injury, claimant was assigned to assembly and warehouse work. This work routinely required heavy lifting, pushing and pulling. After the second alleged injury, she was assigned to retrofit in which already assembled machines are modified to fit specific customer orders. On or about August 3, 1988, claimant injured her left shoulder while lifting a heavy compressor. Claimant at the time experienced a sudden sharp pain. Chronic shoulder pain and numbness continued thereafter. Claimant was primarily treated by physicians at the Park Clinic--K. B. Washburn, M.D., an occupational medicine specialist; M. W. Crane, M.D., an orthopedic surgeon; and, A. J. Wolbrink, M.D., an orthopedic surgeon. Claimant's condition was eventually diagnosed as tendonitis and impingement syndrome. After unsuccessful conservative therapy, on May 3, 1989 claimant underwent arthroscopic surgery in which there was excision of the superior labrum and the bursa in the left shoulder. Claimant then returned to her assembly work at IMI but continued to experience shoulder problems. No permanent work restrictions were imposed upon claimant's return to work but Dr. Wolbrink, her treating Page 3 physician at the time, stated that she would continue to experience symptoms with certain heavy activity. On or about October 9, 1990, claimant suffered another injury to her left shoulder which arose out of and in the course of her employment at IMI. She again experienced sudden pain while dragging a heavy metal plate. She explained that this was more than her usual pain from her prior injury. Claimant returned to Dr. Wolbrink for treatment and then was referred to Rodney Johnson, M.D., another orthopedic surgeon. As before, conservative therapy failed to improve her symptoms and claimant underwent a second surgery by Dr. Johnson to further decompress the shoulder impingement. In this surgery, components in the shoulder were further rearranged to allow for greater movement of the shoulder tendons. Based upon the views of Dr. Johnson, the treating physician, the injury of October 9, 1990 was an aggravation of the prior injury but this aggravation significantly worsened the condition. Claimant then returned to work but this time on a permanent restriction to light duty upon the recommendation of physicians at the Mayo Clinic. Claimant is now permanently restricted from lifting over 20 pounds; pushing or pulling over 30 pounds; anything more than occasional kneeling, squatting, crawling or bending; and, any twisting with extended arms or working overhead. Claimant was then assigned to the retrofit department where she now primarily trains fellow employees. Dr. Wolbrink has opined that the worsening of claimant's condition after his surgery may be the result of cumulative trauma from her work activity rather than any one specific event. Given claimant's account of a sudden increase in pain level after a single incident, such a theory is rejected. Both the injury of August 3, 1988 and October 9, 1990 are found to be a significant, permanent injuries causing impairment to the body as a whole, and not an injury or impairment to the arm. Both Dr. Wolbrink and Dr. Johnson have rated the impairment from each injury to both the upper extremity and to the body as a whole. However, a close review of their records indicate that the only mention of a loss of use was to the operation of the shoulder subsequent to the injury and surgery, not to the function or use of the arm structure itself. With reference to the extent of impairment, an exact percentage is unnecessary in an industrial disability case. More significant is the work restrictions following each injury and their effect upon her ability to work. Claimant's medical condition before the work injury of August 3, 1988 was excellent and she had no functional impairments or ascertainable disabilities. Claimant was able to fully perform physical tasks involving heavy lifting and repetitive lifting, bending, twisting or stooping. Claimant was 34 years of age at the time of this injury. Claimant has a high school education. Claimant's past employment consists of waitress work, cashier in a department store, packer/shipper and managing a gas station. Claimant has some potential for vocational rehabilitation given her age and experience but such Page 4 was unnecessary as she returned to the same job at IMI because no permanent restrictions against heavy work were imposed. However, she did continued to experience chronic pain and swelling with activity following her return to work which lasted up to the second injury herein. From examination of all of the factors of industrial disability, it is found that the work injury of August 3, 1988 was a cause of only a very mild five percent loss of earning capacity. Claimant's medical condition before the work injury of October 9, 1990 was certainly not excellent given her chronic pain but she had no formal work restrictions and she was able to continue in assembly work at IMI even though at times such work was heavy. Following the injury of October 9, 1990, claimant's condition dramatically worsened. Claimant is no longer able to return to her assembly job or any other position which requires heavy work, bending, twisting or stooping. Claimant's past employment consisted of waitress work, cashier in a department store, packer/shipper and managing a gas station. Claimant can still return to some of these positions but they would be low paid service jobs. Although she is a high school graduate, she is now 40 and has only limited potential for vocational rehabilitation especially now with her permanent restrictions against heavy work. IMI has accommodated for her disability and she has not suffered a loss of earnings. However, she is no longer able to be promoted to many higher paid jobs at IMI due to her restrictions. On the other hand, claimant is relatively secure in her union job with high seniority. From examination of all of the factors of industrial disability, it is found that the second work injury of October 9, 1990 was a cause of only an additional 15 percent loss of earning capacity. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961) and cases cited therein. It is not necessary that claimant prove her disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in gradual Page 5 injury cases is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincided with the time claimant was finally compelled to give up his job. This date was then used by the Court to determine rate and the timeliness of claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. In the case sub judice, claimant demonstrated two traumatic events constituting compensable work injuries. Evidence suggests possible application of the cumulative trauma rule for the second injury. However, even if true, such a work injury pathology would not change the injury date and consequently IMI as self- insured would remain liable for such an injury. II. The evidence presented herein demonstrated that the injury was not confined to the leg. This work injury was found to be an injury and permanent impairment to the body as a whole because it involves a loss or loss of use of more portions of the human body than those specifically scheduled in Iowa Code sections 85.34(2)(a-t). See Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943); Nazarenus v. Oscar Mayer & Co., II Iowa Indus. Comm'r Rep. 281 (Appeal December 1982); Godwin v. Hicklin, II Iowa Indus. Comm'r Rep. 170 (Appeal Decision 1981). As the claimant has shown that the work injury was a cause 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 disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). A showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, 34 Bien Rep., Ia Ind. Comm'r 218, 220 (Appeal Page 6 Decision 1979); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held that continued employment with no loss of earnings is significant evidence that should not be overlooked in measuring loss of earning capacity. In the case sub judice, it was found that claimant suffered a five percent loss of her earning capacity as a result of the August 3, 1988 work injury. Such a finding entitles claimant to 25 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is five percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. Claimant has already been paid 12.5 weeks toward this award. IMI, as insured by Sentry, will be ordered to pay the balance. It was also found that claimant suffered an additional 15 percent loss of her earning capacity as a result of the October 9, 1990 work injury. Such a finding entitles claimant to an additional 75 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 15 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. Claimant has been paid 17.5 weeks toward this award. IMI, as self-insured, will be ordered to pay the balance due. II. Claimant seeks additional weekly benefits under Iowa Code section 86.13, unnumbered last paragraph. That provision states that if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award extra weekly benefits in an amount not to exceed 50 percent of the amount of benefits that were unreasonably delayed or denied. Defendants may deny or delay the payment of benefits only when the claim is fairly debatable. Seydel v. U of I Physical Plant, Appeal Decision, November 1, 1989. However, not only bad faith but also negligent conduct can invoke the penalty provisions of section 86.13. Boylan v. American Motorists Ins. Co., 489 N.W.2d 742, 744 (Iowa 1992). In the case before us, claimant has neither shown bad faith or negligent conduct. It is not unreasonable to pay just the impairment rating to the arm in this case given the status of the agency precedents and claimant's return to work without loss of earnings. ORDER 1. Defendant IMI as insured by Sentry shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at a rate of two hundred twenty-two and 61/l00 dollars ($222.61) per week from January 29, 1990. Credit shall be given for the prior payment of twelve point five (12.5) weeks. 2. Defendant IMI as self-insured shall pay to claimant seventy-five (75) weeks of permanent partial disability benefits at a rate of two hundred thirty-three and 42/l00 dollars ($233.42) per week from September 23, 1991. Credit shall be Page 7 given for the prior payment of seventeen (17) weeks. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendant as insured by Sentry and as self-insured each shall pay 50 percent of the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 7. Defendants shall file 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 April, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey, III Attorney at Law P O Box 679 214 North Adams Mason City, Iowa 50401 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 Mr. Stephen W. Spencer Attorney at Law P O Box 9130 405 6th Ave STE 700 Des Moines IA 50306 5-1803 Filed April 14, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JACKIE CARPENTER, Claimant, vs. File Nos. 972644 IMI CORNELIUS f/k/a SCHNEIDER 951732 METAL MFG. CO., A R B I T R A T I O N Employer, D E C I S I O N and SENTRY INSURANCE, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Non-precedential, extent of disability case.