before the iowa industrial commissioner _________________________________________________________________ : ERNEST E. WISSLER, : : Claimant, : File No. 955181 : vs. : A P P E A L : CITY OF FREMONT, IOWA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed June 9, 1992 is affirmed and is adopted as the final agency action in this case with the following additional analysis: On appeal, defendant urges as an issue whether claimant's prior disability should be apportioned from his award. When an award of permanent total disability is made, apportionment for a prior disability is not appropriate. Tesch v. Sieh Farm Drainage Co., Appeal Decision, March 1992. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. John E. Swanson Attorney at Law 8th Floor, Fleming Bldg. 218 Sixth Avenue Des Moines, Iowa 50309 1806 Filed February 22, 1993 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ _____ : ERNEST E. WISSLER, : : Claimant, : File No. 955181 : vs. : A P P E A L : CITY OF FREMONT, IOWA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ 1806 Held on appeal that apportionment for prior disability is not appropriate when an award of permanent total disability is made. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ERNEST E. WISSLER, : : File No. 955181 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N CITY OF FREMONT, IOWA, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ernest E. Wissler, claimant, against City of Fremont, Iowa, employer, a self-insured defendant, for workers' compensa tion benefits as a result of an alleged injury on July 13, 1990. On May 5, 1992, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On July 13, 1990, claimant received an injury aris ing out of and in the course of employment with City of Fremont, Iowa. 2. Claimant is seeking temporary total or healing period benefits from July 13, 1990 and defendant agrees that he has not worked in any capacity since that time. 3. The injury is a cause of a permanent industrial disability to the body as a whole, the extent of which is in dispute. 4. At the time of injury, claimant's gross rate of weekly compensation was $330.46. She was married and enti tled to 2 exemptions. Therefore, claimant's weekly rate of compensation is $212.80 according to the Industrial Commissioner's published rate booklet for FY 91 (the stipu lated rate in the prehearing report was incorrect). 5. All requested medical benefits have been or will be paid by defendant. ISSUE Page 2 The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to permanent industrial disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant worked for Fremont from November 1989 until the work injury herein. Claimant was the town superinten dent. His duties consisted of maintenance and care of the city water, sewer and lagoon systems, reading meters, dog control and general handyman work. At times the job required heavy shoveling and lifting. Claimant injured his low back on July 13, 1990 when he slipped on a wet concrete floor in the city water plant and twisted his back. He did not fall. However, after twist ing, he felt the immediate onset of low back pain. Claimant initially received treatment from a chiropractor for a few weeks and then he was referred to Tobin Jacks, M.D. Dr. Jacks felt that claimant only suffered a ligament strain and that he would soon return to normal. However, when the pain continued through November, he referred claimant to an orthopedic surgeon, Donald Berg, M.D. Dr. Berg treated claimant with physical therapy and medication over the next few weeks. He stated that claimant had aggravated a pre-existing degenerative condition of the lower spine. He stated that claimant would require six months of healing and then, if symptoms persisted, he would suffer a 2 percent permanent partial impairment to the body as a whole. He stated that claimant will never be able to return to heavy physical labor and that he should not lift over 20 pounds or frequently bend or twist. Dr. Berg referred claimant for a second evaluation to William Boulden, M.D., another orthoepic surgeon. Dr. Boulden again treated claimant with physical therapy and work hardening and also arrived at the conclusion that claimant should not return to heavy work and must be restricted in lifting and repetitive activity. Dr. Boulden rated claimant's impairment at 7 percent and stated that this was all due to the work injury as claimant reported no back problems before July 13, 1990. As recognized by all physicians in this case, claimant's low back condition is complicated by old injuries to his left hip and head. These old injuries were the result of a serious motorcycle accident in 1969 in which claimant suffered multiple fractures to his arm, leg, hip and head. He suffered what was estimated then to be a 60 percent disability and inability to return to heavy work. He was unconscious for six weeks after the accident. As first noticed by the chiropractor after the injury and later verified by the orthopedic surgeons, the old frozen hip from the 1969 injury works in combination with the work injury in July 1990 causing excessive strain to the back after any thing but very light duty. Dr. Boulden was the only physi cian to attempt to separate the effects of the two injuries Page 3 and it was clear that most of claimant's current restric tions were due to the new back injury rather than the old hip injury. Claimant had little or no industrial disability prior to July 1990. He returned to work successfully for over 20 years after the 1969 accident without physician imposed restrictions. Many of these jobs required occasional heavy labor and prolonged sitting as a truck driver. The work injury of July 13, 1990 was a cause of a sig nificant permanent partial physical impairment to the body as a whole. More importantly from an industrial disability standpoint, as a result of the injury herein, claimant is physically unable to perform work activities consisting of lifting or carrying over 30 pounds and no prolonged sitting or standing for more than 45 minutes without being able to change positions. These are the most recent restrictions imposed by Dr. Boulden. Claimant has an extensive and multifaceted employment history. He has been a farmhand; gas station mechanic; body ship worker; route delivery of bread; beer warehouseman; warehouse foreman; advertising; sales promotion for a tobacco company; motorcycle mechanic; manager of the motor cycle department of a car dealership; gas station operator; service manager and ship foreman at a car dealership; pro duction worker; and over-the-road trucker hauling cars from Florida. His transferable skills are extensive. Many of the more mentally demanding jobs occurred after the 1969 accident. Claimant was able to perform these jobs with only a tenth grade education. Almost all of the jobs claimant had held in the past required heavy physical labor, the type of work claimant can no longer perform. Claimant is 55 years of age and the evidence did not reveal any retirement plans at the time of injury herein. A vocational counselor was retained by defendant to attempt to locate suitable work for him. After six months the coun selor was only able to locate a possible part-time job as an assistant activity director for a nursing home. The salary of this job was not stated. The counselor complained that claimant and his wife were not motivated to return to work and did poorly in the interview for the activity director job due to lack of aggressiveness. However, the most recent evaluation of claimant's men tal and physical condition clearly demonstrates that claimant is incapable of any return to the work force. Marc Hines, M.D., reports on March 25, 1992 that claimant's past head injuries are now resulting in psychosensory symptoms from illusions, episodic macropsia, speech and word finding difficulties, speech confusion and memory gaps. Claimant has staring spells on a daily basis. He has chronic anxiety and perplexity. Dr. Hines states that these neurological symptoms, combined with the physical disability from the July 13, 1990 work injury, prevents him from being able to work. This opinion as to the combined mental problem and physical effects from the work injury is uncontroverted and found to be correct. Page 4 Consequently, the work injury of July 13, 1990 is a cause of a total or 100 percent loss of earning capacity. CONCLUSIONS OF LAW Claimant must establish by a preponderance of the evi dence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disabil ity" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restric tion on work activity may or may not result in such a loss of earning capacity. Examination of several factors deter mines the extent to which a work injury and a resulting med ical condition caused an industrial disability. These fac tors 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). In the case sub judice, it was found that claimant suf fered a total or 100 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to permanent total disability benefits as a matter of law under Iowa Code section 85.34(3). These weekly bene fits shall begin with the date of the work injury and shall extend for an indefinite period into the future and may last for life absent a change in condition. Although a considerable portion of this disability is due to the combined effect of the work injury and non-work related 1969 accident, apportionment of disability as envi sioned in Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984) is not appropriate or possible in a permanent total disability case because the benefits are not payable for a definite time period under Iowa Code section 85.34(2) but are paid to claimant indefinitely during the period of his disability under Iowa Code section 85.34(3). The July 1990 injury was the proverbial "straw that broke the camel's back" and permanent total disability benefits was awarded accordingly. Loftus v. Waterloo Comm. School Dist., Case No. 777678, Arbitration Decision Filed March 30, 1989; Brown Page 5 v. Nissen Corp., Arbitration Decision Filed June 29, 1988. Additionally, prior existing impairment, if it were shown, does not mandate a finding of loss of earning capac ity when there has been no lost earnings or employment for almost 20 years prior to the injury. See Bearce v. FMC Corp, 465 N.W.2d 531 (Iowa 1991) Finally, when claimant establishes a causal connection between the claimed disability and the work injury, the claimant does not have the additional burden to establish the lack of a preexisting disability. After establishing a prima facia case for permanent disability, the undersigned believes that the burden of persuasion shifts to defendant to establish such a preexisting disability for purposes of apportionment. The plaintiff in a personal injury case is not normally charged with a burden of proof as to the actual apportionment of damages. Any burden of that nature should be assumed by the defendant, since the defendant is the party standing to gain by litigating the apportionment issue. 2 Damages in Tort Actions, 15.34(1)(a); Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973). If no appor tionment can be made, the defendant is responsible for the entire damage. Becker v. D & E Distributing Co. 247 N.W.2d 727, 731 (Iowa 1976). ORDER 1. Defendant shall pay to claimant permanent total disability benefits at a rate of two hundred twelve and 80/l00 dollars ($212.80) per week from July 13, 1990, for an indefinite period of time during the period of his disability. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendant shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. John E. Swanson Attorney at Law 8th Floor Felming Building 218 6th Avenue Des Moines, Iowa 50309 5-1803 Filed June 9, 1992 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ERNEST E. WISSLER, : : File No. 955181 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N CITY OF FREMONT, IOWA, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RAELYN J. WOMACK, : : File No. 955356 Claimant, : : D E C I S I O N vs. : : A N D O R D E R LAMONT LIMITED, : : A P P R O V I N G Employer, : : S E T T L E M E N T and : : B Y UNITED STATES FIDELITY AND : GUARANTY, : A C Q U I E S C E N C E : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Raelyn J. Womack filed a petition in arbitration against Lamont Limited and United States Fidelity and Guaranty on April 19, 1991. She claims to have sustained a back injury in a work-related fall on July 5, 1990, and asserts entitlement to workers' compensation benefits. Defendants duly filed answer denying that claimant sustained an injury arising out of and in the course of employment. On May 8, 1991, claimant filed an Application for Alternate Medical Care. Defendants deny that relief is appropriate. Following prehearing conference, the parties agreed on January 8, 1992, to submit that dispute (but no other) specifically to the undersigned deputy industrial commissioner for binding arbitration pursuant to rule 343 IAC 4.42. In a telephone conference hearing held on February 3, 1992, the undersigned advised counsel that he believed no justiciable issue had been presented, since defendants could not be ordered to pay or provide any benefits absent adjudication or agreement that claimant had sustained a compensable injury. On February 6, 1992, defendants accordingly amended their answer to admit an injury arising out of and in the course of employment. The undersigned conducted an informal prehearing conference with respective counsel on March 26, 1992. Because the rule governing binding arbitration is silent as Page 2 to the manner in which hearing is to be conducted, the parties were given three options: (1) conduct the hearing by telephone conference; (2) conduct an in-person hearing in Des Moines; or, (3) conduct an in-person hearing in the appropriate venue (here, Burlington) on the next occasion this deputy happened to be scheduled for that venue. The parties agreed to conduct the hearing by telephone conference. That hearing was held on April 20, 1992. Claimant was represented by Susan Diehl, defendants by Mark Woollums. Claimant's exhibits 1 through 3 and defendants' exhibits 1 through 8, each inclusive, were received. Claimant testified personally. Official notice was taken of the distance between Burlington and Davenport as shown by the official Iowa Department of Transportation road map: 77 miles. The distance between Burlington and Rock Island, Illinois, would be roughly equivalent. issue The sole issue presented for resolution is: 1. Whether defendants should be ordered to provide alternate medical care under Iowa Code section 85.27. findings of fact Raelyn J. Womack suffered a work injury on July 5, 1990. She described the onset of pain in her right knee, shooting up into the hips. She now asserts a back injury. While defendants admit that Ms. Womack sustained an injury arising out of and in the course of employment, they dispute whether she sustained permanent industrial disability causally related to this injury. In particular, they point to the existence of a prior injury and alleged noncooperation with treatment modalities. After the injury, claimant first sought medical treatment from a practitioner of chiropractic, Raymond Hanks, Jr., D.C., who testified by deposition on April 9, 1992 (claimant's exhibit 1). Dr. Hanks had treated claimant extensively following a 1987 automobile injury. Dr. Hanks advised claimant to seek authorization for medical treatment from defendants. She did so and was referred to the company doctor, P. H. Breckner, M.D. Defendants next referred claimant to Mitchell H. Paul, D.O., an orthopaedic specialist. At his advice, a return to work was attempted in September 1990, but for whatever reason proved unsuccessful. In October, claimant requested authorization to treat with another chiropractor and defendants referred her to Thomas A. Rexroth, D.C. Claimant felt that Dr. Rexroth's treatment was unhelpful or even aggravated her condition. At his advice, she unsuccessfully attempted another return to work in December. Page 3 Claimant subsequently returned to Dr. Paul, who suggested evaluation at the University of Iowa Spine Clinic. Defendants refused to authorize this evaluation and referred her instead to Robert O. Crous, III, M.D., an orthopaedic surgeon located in Rock Island, Illinois. Dr. Crous released claimant to return to her regular duties effective January 31, 1991, as per a videotape purportedly depicting those duties. This litigation ensued. Claimant saw Dr. Crous again on April 3, 1992, and was on this occasion favorably impressed. Nonetheless, she complains that the distance between her residence and Dr. Crous's office renders his care unduly inconvenient within the meaning of section 85.27. Claimant is currently a full-time student, having begun her course of study by way of vocational rehabilitation in fall, 1990. She is taking instruction in design engineering, requiring some "hands on" laboratory courses, not amenable to tape recording in the same manner as lecture courses. She goes to school from 1-4 hours per day, but classes are scattered rather than in a block of time. Ms. Womack complaints that, in order to see Dr. Crous, she must in advance: advise teachers of her impending absence, purchase blank audio tapes, arrange for the taping of lectures, arrange child care for her 12- and 15-year-old children, arrange transportation with defendants (she must rent a car, since her own vehicle is not trustworthy over such distances) and arrange for a friend to go with her, since she complains she is unable to drive the entire round trip due to low back pain aggravated by distance driving. Dr. Hanks suggests in his deposition that driving a car might cause her a problem, or at least more of a problem than riding a motorcycle. Medical opinion on the advisability of distance driving is scant in this record. conclusions of law In pertinent part, Iowa Code section 85.27 provides: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order Page 4 other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. While defendants have offered prompt treatment, they are not currently doing so "without undue inconvenience to the employee." Without in any way belittling Dr. Crous's speciality, it cannot be said that it is so esoteric that competent practitioners cannot be found within a more realistic geographic distance. A city the size of Burlington must surely boast qualified practitioners of that speciality, and claimant testified that others are to be found in Fort Madison. Even Keokuk, Mount Pleasant and Muscatine are much closer than Rock Island. On April 3, claimant asserts that she took nearly three hours to drive the distance one way (indicative of a much less leaden foot than her testimony implied). Still, a round trip on the order of 150 miles is no small undertaking for most people, much less a back patient without a reliable vehicle. The time investment alone has a serious potential for detrimental conflict with classroom attendance. Defendants have made clear that they intend to strictly hold claimant to the requirements of section 85.27 with respect to emergency care (claimant's exhibit 2). Claimant has run up a substantial bill with Dr. Hanks continuing to treat with him even though he has not been authorized, thus indicating a continuing need for treatment, at least in her mind. This decision does not address the issue of whether those expenses are compensable, although a reasonable argument can certainly be made that defendants cannot assert an authorization defense at least prior to their amended answer of February 6, 1992. See Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981); Mason v. Thermo-Gas, File No. 819978 (App. Decn., July 28, 1989). Claimant has not requested the right to choose her own physician, even though defendants are very late to an admission of compensability in this case. Rather, she requests only that defendants authorize a physician of their choice more conveniently located. This request is reasonable. The medical care now offered her is not, since it entails undue inconvenience to the employee. Note, as persuasive authority, Commercial Carrier Corp. v. Fox, 400 So. 2d 154 (Fla. App. 1981), where the only physicians authorized were located 50 miles from claimant, who complained (successfully) that this travel aggravated his pain. See also Bogguss v. Sheller-Globe Corp., File No. 927477 (Arb. Decn., July 26, 1991). The equities are with claimant on this issue. Rule 343 IAC 4.42(5) requires that an Order Approving Settlement by Acquiescence be entered by the industrial commissioner simultaneously with the entry of this decision. Page 5 The undersigned treats himself as the industrial commissioner's designee under 343 IAC 4.40, and thereby collectively referred to as the industrial commissioner. The Order Approving Settlement by Acquiescence shall be contained with this decision. order THEREFORE, IT IS ORDERED: Defendants shall provide reasonable and necessary medical treatment under Iowa Code section 85.27 by a physician of their choice located at a reasonable distance from claimant's place of residence. Authorization of Dr. Crous as the sole treating physician entails undue inconvenience to claimant. This order does not address the issue of whether any particular medical treatment is or has been reasonable and necessary or causally related to the work injury of July 5, 1990. IT IS FURTHER ORDERED that no assessment of costs shall be made at this time. IT IS FURTHER ORDERED that, because this binding arbitration does not resolve all outstanding issues, the cause shall be returned to the prehearing docket. AND: IT IS ALSO ORDERED that the foregoing is approved as a settlement by acquiescence within the meaning of rule 343 IAC 4.42(5). Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Susan A. Diehl Mr. Charles C. Brown, Jr. Attorneys at Law 3401 Williams Blvd. SW P.O. Box 998 Cedar Rapids, Iowa 52406-0998 Mr. Mark A. Woollums Mr. Craig A. Levien Attorneys at Law 600 Union Arcade Building 111 East Third Street Page 6 Davenport, Iowa 52801 Page 1 2501; 2900 Filed April 21, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : RAELYN J. WOMACK, : : File No. 955356 Claimant, : : D E C I S I O N vs. : : A N D O R D E R LAMONT LIMITED, : : A P P R O V I N G Employer, : : S E T T L E M E N T and : : B Y UNITED STATES FIDELITY AND : GUARANTY, : A C Q U I E S C E N C E : Insurance Carrier, : Defendants. : ____________________________________________________________ 2900 Parties submitted alternate medical care issue to binding arbitration under rule 343 IAC 4.42. As the rule is silent as to the manner in which a hearing is to be conducted, the deputy selected by the parties gave the following options: (1) telephone conference hearing; (2) hearing in Des Moines; or, (3) hearing in the appropriate venue when the deputy was next assigned to service that venue. The parties agreed to a telephone conference hearing. Simultaneously with and as a part of the decision, the deputy entered an "Order Approving a Settlement by Acquiescence" as a designee of the industrial commissioner, and thereby collectively referred to as the commissioner under rule 343 IAC 4.40. 2501 Defendants withdrew authorization of all physicians except an orthopaedic surgeon located some 75-80 miles from claimant's residence. Claimant, a back patient, asserted that she could not drive this far due to pain, thus requiring an assistant driver. She also needed to rent a car by prior arrangement with defendants because her own was not road worthy at such distances. The time necessary for round trips had the potential to unduly interfere with college courses claimant is taking by way of vocational rehabilitation. Because the treatment offered by defendants Page 2 was not "without undue inconvenience to the employee," within the meaning of section 85.27, defendants were ordered to authorize another physician of their choice at a more reasonable distance. Claimant did not seek the right to choose her own care. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TIMOTHY SHINN, Claimant, vs. File No. 955539 COLONIAL BAKING COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and PACIFIC EMPLOYERS INSURANCE CO., Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Tim Shinn, against his employer, Colonial Baking Co., and its insurance carrier, Pacific Employers' Insurance Co., defendants. The administrative file reflects a filing of the first report of injury on July 23, 1990. Claimant filed his petition with the Iowa Division of Industrial Services on July 14, 1993. The parties, in their prehearing conference report, indicated they would be ready for a hearing on the matter on or after September 1, 1994. The case was heard on December 14, 1994, in Des Moines, Iowa at the office of the Division of Industrial Services. The record consists of the testimony of claimant. The record also consists of joint exhibits 1-16 and claimant's exhibits 1-3. ISSUES The issues to be determined are: 1) whether there is a causal relationship between the work injury and any permanent disability; and, 2) whether claimant is entitled to any permanent partial disability benefits. FINDINGS OF FACT AND CONCLUSIONS OF LAW The deputy, having heard the testimony and considered all of the evidence, makes the following findings of fact and conclusions of law: Claimant is 36-years-old. He is the married father of five children. Claimant did not graduate from high school. He completed the tenth grade but he left school prior to his graduation. After he left school, claimant assisted his father in the family business. His father owned and operated an automobile garage. Claimant completed truck driving school. He earned a certificate of course completion. For a period of time he was licensed to operate commercial vehicles. Claimant drove semi- trucks for several different periods of time. However, as of the date of the hearing, claimant did not hold a valid license for driving trucks. Claimant entered the military for a short period of time. He encountered several difficulties and he left after two months. Claimant's previous work experience centered around the automobile area. Claimant performed various mechanical duties when he worked in his father's garage. He installed exhaust systems, he worked on brakes, and he installed transmissions. Claimant drove tow trucks. He also worked as a heavy equipment mechanic and he repaired heavy truck tires. Additionally, claimant fabricated flatbed utility trailers. Claimant commenced his employment with the present employer in April of 1988. He was hired as a transport truck driver. His duties required claimant to load and unload products and to transport the products from Des Moines, Iowa to Lincoln, Nebraska and then return to Des Moines. He testified he worked seven to eight hours per day and his shift was from 7 p.m. to 3 a.m. Claimant earned $494.00 per week. The parties stipulated claimant's work injury occurred on July 4, 1990. At the time, a wire cart loaded with products toppled and landed on claimant. He was struck on the right shoulder, the back of his head, and on his back. A co-employee removed the rack from claimant. However, claimant did complete his shift on the night of the work injury. Subsequent to the work injury, x-rays were taken of claimant's right shoulder and cervical spine (Exhibit 4-28). The x-rays showed no abnormality (Ex. 4-28). Michael J. Makowsky, M.D., was designated as the authorized treating physician. He ordered a MRI. The MRI indicated there was no tear or impingement detected (Ex. 1-4). Several steroid injections were attempted. Dr. Joshua Kimmelman, D.O., an orthopedic surgeon, was designated as a treating surgeon. On January 14, 1991, Dr. Kimmelman performed a right impingement release with resection coracoacromial ligament and anterior acromioplasty (Ex. 2-9). Following surgery, claimant engaged in physical therapy and work hardening. Because claimant did not progress as quickly as his physicians had hoped, additional physical therapy including water exercises and whirlpool baths were prescribed. Claimant cooperated with the medical care providers. Dr. Makowsky released claimant to return to work in a light duty capacity at the bakery. The physician authorized claimant to return to truck driving but on a limited route and for approximately six hours per shift. Claimant participated in the light duty program; however, he voiced complaints relative to right shoulder pain. Claimant was released to return to full duty effective September 19, 1991 (Ex. 1-10). He did not believe he was capable of handling his regular shift. Consequently, he resigned from his employment with defendant. In October of 1991, Dr. Makowsky examined claimant. The physician opined the following in his clinical notes for October 21, 1991: O: NO OBJECTIVE FINDINGS. HE IS DIFFUSELY TENDER UP AND DOWN HIS RIB CAGE ALONG THE AXILLARY LINE. HIS ROM IN ABDUCTION WAS 0-95 DEGREES. FORWARD FLEXION WAS 0-170 DEGREES. THERE IS STILL TENDERNESS ON PALPATION OVER THE RIGHT ANTERIOR SHOULDER. P: I HAVE NOTHING ELSE TO OFFER HIM. I FILLED OUT A FORM FOR THE VOCATIONAL REHABILITATION SERVICES. I RECOMMENDED THE FOLLOWING FUNCTIONAL LIMITATIONS: AVOID ABOVE RIGHT SHOULDER LEVEL WORK, NO REPETITIVE PUSHING AND PULLING WITH THE RIGHT ARM, AND MAXIMUM LIFTING WITH THE RIGHT ARM OF 25 LBS. I TOLD HIM THAT WE WOULD SPEAK TO RENEE KING TO SEE WHAT ELSE CAN BE DONE. I SUGGESTED THAT HE DISCONTINUE THE EXERCISES FOR ONE WEEK TO RE-EVALUATE HIS PAIN OVER THE ANTERIOR CHEST. HE IS TAKING DARVOCET AND IBUPROFEN. FOR NOW, I WILL NOT PLAN TO SEE HIM BACK AGAIN EXCEPT PRN. (Claimant Ex. 1-2) Dr. Makowsky authored a report concerning claimant's permanent impairment. In the report, the occupational medicine practitioner opined: I have calculated that according to the American Medical Association's "Guide's to the Evaluation of Permanent Impairment", 3rd edition, revised, Mr. Shinn has sustained an eight percent impairment of the right upper extremity secondary to his right shoulder impingement and being status post right shoulder acromioplasty. I also recommend the following permanent restrictions: he should avoid above right shoulder level work, he should avoid repetitive pushing and pulling with his right arm and he should avoid a maximum lifting above the right arm of 25 pounds. (Cl. Ex. 1-1) Claimant was also evaluated by Dr. Kimmelman. In his clinical note for September 19, 1991, Dr. Kimmelman opined: Follow-up of right shoulder impingement release. Tim has restriction of internal rotation, slight forward flexion. Positive impingement test and pain in the shoulder. I believe this represents 5% permanent impairment of his right shoulder. (Cl. Ex. 1-21) Since claimant did not return to his full duty shift, and other suitable work was not available within the bakery, claimant filed for unemployment benefits. An administrative law judge awarded claimant unemployment insurance benefits (Ex. 2-37). In rendering her decision, the judge determined that: An individual who leaves employment because of disability is disqualified from receiving benefits unless he establishes that his disability was either caused or aggravated by the employment. Hedges v. Iowa Department of Job Service, 368 N.W.2d 862 (Iowa App. 1985). It is undisputed that Mr. Shinn's disability was caused by a work-related injury. He is unemployed because Colonial Baking Company could no longer provide him with employment that would accommodate his doctor- imposed limitations. Therefore, Mr. Shinn was separated for no disqualifiable reason, and benefits are allowed. (Cl. Ex. 3-38) Since his termination from the bakery, claimant has engaged in construction, including roofing. Defendants directed a private investigator to conduct surveillance on claimant during September of 1993. Exhibit 11 is comprised of three videotapes of claimant. Claimant is depicted carrying bundles of shingles over his head. He is able to carry, without any apparent difficulty, aluminum ladders. Claimant bends and reaches with his arms. He engages in numerous physical activities which are required in the roofing business. He works from ladders and he is able to balance himself while he is working on a roof. This observer noted no visible signs of any pain manifestations. Portions of the videotape were shown to Dr. Makowsky. After he reviewed the relevant portions, Dr. Makowsky amended his opinions relative to claimant's condition and his work restrictions. Dr. Makowsky opined: I reviewed a video tape that you provided. The date of the video tape was September 7, 1993 and September 10, 1993. In the video tape, Tim Shinn was seen carrying building and roofing material at waist level and above his shoulder and repetitively using his right arm to hold an air gun. Also, in the video tape Tim Shinn reached above shoulder level and apparently did not have any difficulty. I did not notice any favoring of his right arm. Mr. Shinn did not appear to have any functional limitations as it relates to his right shoulder. In a March 13, 1992 letter to David D. Drake, I indicated Mr. Shinn had sustained an 8% impairment of his right upper extremity, secondary to right shoulder acromioplasty. I also recommended he be assigned the following permanent restrictions: he should avoid above right shoulder level work, avoid repetitive pushing and pulling with his right arm, and avoid a maximum lifting above the right arm of twenty-five pounds. Based upon my review of the video tape, Mr. Shinn does not have a permanent impairment of his right shoulder as it relates to his previous injury. The video tape did not show him to have any functional limitations. Therefore, I think the previous restrictions I assigned to Mr. Shinn are obsolete. (Jt. Ex. 1-1) Dr. Kimmelman also reviewed the same videotape. He opined the following in his report of June 28, 1994: HISTORY: Tim comes in for reevaluation. He reports he is unchanged since last being seen. He continues to complain of discomfort in the shoulder and pain in the side of the chest wall. He reports it is increased with activity. PHYSICAL EXAMINATION: He lacks 35 degrees of full forward flexion. He is barely able to get his arm behind his back. He has full external rotation. He has not atrophy or weakness in the upper extremity compared to the opposite side. He has full range of motion cervical spine. He has good sensation in the arm. The right anterior shoulder incision is well healed. RADIOGRAPHS: X-ray shows well preserved joint space with no evidence of osseous abnormality in the shoulder; fairly flat acromial undersurface. IMPRESSION: Status post right impingement syndrome with continued subjective complaints. PLAN: Currently not taking any medication or under any treatment. We'll see him PRN. ADDENDUM: I additionally reviewed a video tape of Mr. Shinn roofing a house. During the course of the video tape, it was noted that he was lifting bundles of shingles and other building material over his head, throwing them up on the top of a rack on a pick-up truck and demonstrating excellent ability to use his right arm and shoulder without any apparent compensation for his previous shoulder injury. (Jt. Ex. 2-6,7) Claimant testified that as of the time of the hearing, he experienced pain in his right shoulder which radiated down to his right ribs. He added that he did not have the full range of motion of his right shoulder. During cross-examination, claimant testified he is able to perform mechanical repairs on vehicles. He can get underneath them with the aid of a "creeper" and then complete the requisite repairs. He also admitted he is capable of performing residential and some commercial remodeling work. He can operate hand tools and air guns. He has laid carpeting. He has secured several construction projects on his own. He has performed some concrete work as an independent contractor. Claimant admitted he was not registered as a contractor with the Iowa Division of Labor Services. Additionally, claimant assists with the family business. He can perform basic bookkeeping skills and inventory control. He engages in some mechanical repairs. The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding; "on the party who would suffer loss if the issue were not established." Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Claimant has proven that he has sustained a permanent injury to his right shoulder. He underwent a right impingement release with resection of the coracoacromial ligament and anterior acromioplasty. Dr. Kimmelman, the treating orthopedic surgeon, determined claimant had a permanent impairment in the amount of five percent. Dr. Kimmelman is a well respected orthopedic surgeon. He also noted some reduced range of motion in claimant's full flexion. Claimant's testimony also supports a conclusion of permanent disability. He testified extensively about his right shoulder pain and the limitations he has encountered since the work injury. It is acknowledged that Dr. Makowsky revised his opinion after he reviewed the videotape which is exhibit 11. Originally, he had imposed permanent restrictions. He removed those restrictions after two years, and after claimant had endured a rigorous home exercise program. Therefore, it is the determination of the undersigned that claimant has sustained a permanent partial disability as a result of his work injury on July 4, 1990. Claimant's injury is a body as a whole injury. His disability, if any, is calculated by the industrial method. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant left his employment with this defendant because he believed full duty was too strenuous for him. At the time, Dr. Makowsky also believed claimant needed to find another line of work. Defendant-employer did not have light duty available to claimant for an extended time period. Consequently, claimant felt he was unable to continue his employment at the bakery. He terminated the employment relationship. Claimant exaggerated the severity of his right shoulder condition. It is apparent to the undersigned that two years after the work injury, claimant was physically capable of handling construction work. He was even able to sustain employment which involved working above shoulder level and lifting more than 25 pounds. As of 1993, permanent restrictions were lifted from claimant's work activity. He was not precluded from pursuing all types of manual labor. Since permanent restrictions were lifted, claimant was able to return to any of his former occupations. He has many transferable skills from previous jobs in the building trades or from his experiences in auto mechanics. He is a "hands on" person. There are many job opportunities in the labor market which pay at nearly the same rate of pay as his job at the bakery. Claimant has had an actual loss of earnings for the period before he returned to construction work. However, once the restrictions were lifted, he had the potential for achieving nearly the same earning capacity. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant is entitled to a fifteen percent permanent partial disability. He is entitled to 75 weeks of permanent partial disability benefits at the stipulated rate of $320.12 per week and commencing from September 25, 1991. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of three hundred twenty and 12/l00 dollars ($320.12) per week and commencing from September 25, 1991. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended. Defendants shall take credit for all benefits previously paid claimant. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1995. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law West Towers Office Complex 1200 35th St STE 500 West Des Moines IA 50266 Mr. Michael R. Hoffmann Attorney at Law Breakwater Bldg 3708 75th St Des Moines IA 50322 1800 Filed May 24, 1995 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TIMOTHY SHINN, Claimant, vs. File No. 955539 COLONIAL BAKING COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and PACIFIC EMPLOYERS INSURANCE CO., Insurance Carrier, Defendants. ___________________________________________________________ 1800 Claimant was awarded a 15 percent permanent partial disability as a result of a work injury to his right shoulder. Lengthy videotapes convinced the deputy industrial commissioner that claimant exaggerated the severity of his symptoms.