BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JUDY LOUGHRY, Claimant, File No. 956513 vs. A B R I T R A T I O N K-MART CORPORATION, D E C I S I O N Employer, Self-Insured Defendant. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Judy Loughry, claimant, against K-Mart Corporation, employer, for benefits as the result of an injury which occurred on July 30, 1990. A hearing was held in Des Moines, Iowa, on September 30, 1993, and the case was fully submitted at the time of the hearing. The hearing was scheduled for five hours but actually consumed eight hours, from 8:30 a.m. until 4:30 p.m. Claimant initially presented more than 50 pages of exhibits and was requested to eliminate irrelevant and immaterial exhibits prior to hearing. Both parties introduced a number of the same exhibits and this could have been eliminated if the attorneys or their legal assistants had conversed about the exhibits shortly before the hearing. The record consists of the testimony of Judy Loughry, claimant, Barbara Wosmansky, loss control district manager, and Brenda Martin, personnel manager, claimant's exhibits A, B, C, E, and J, and defendant's exhibit 1, pages 1-33. The deputy ordered a transcript of the hearing. STIPULATIONS The parties stipulated that claimant did sustain an injury on July 30, 1990, which arose out of and in the course of employment and that the injury was the cause of temporary disability during a period of recovery. The parties further stipulated that claimant's gross earnings were $230.00 per week and that she was married, but the number of exemptions was in dispute. It was stipulated that the rate of compensation would be $165.01 if claimant was entitled to four exemptions. It was further stipulated that in the event of an award of benefits that defendant is entitled to a credit for two weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of $163.34 per week. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant is entitled to temporary disability Page 2 benefits, and if so, the nature and extent of benefits to which she is entitled. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability, and if so, the nature and extent of benefits to which she is entitled. Whether claimant is entitled to medical benefits. Whether claimant is entitled to penalty benefits. What is the proper rate of compensation. FINDINGS OF FACT ENTITLEMENT TO TEMPORARY DISABILITY BENEFITS It is determined that claimant is entitled to two weeks of temporary total disability benefits for the period from July 30, 1990, the date of the injury, until August 13, 1990, the date on which the authorized treating physician released claimant to return to work and the date on which claimant did in fact return to work at her regular pay even though she was on light duty to only attend meetings between August 13, 1990 and August 20, 1990. She returned to full duty on August 20, 1990 (Claimant's Exhibit A, pp. 16 & 17; Defendant's Exhibit 1, pp. 13 & 14; Iowa Code sections 85.32 and 85.33). CAUSAL CONNECITON-ENTITLEMENT-PERMANENT DISABILITY It is determined that the injury of July 30, 1990 was not the cause of permanent disability and that claimant is not entitled to permanent disability benefits. Claimant, born January 14, 1948 was 42 years old at the time of the injury and 45 years old at the time of the hearing. She started to work for employer part-time in June of 1989, then became a full-time employee. Claimant was still employed with employer at the time of the hearing (Transcript pages 34-39, 40, & 45; Ex. 1, p. 2). Claimant is a well respected employee and has received good reviews (Tran. pp. 43, 141, 143, 154, & 158; Ex. C, p. 46). As a loss prevention manager it was claimant's duty to watch for and apprehend shoplifters (Tran. pp. 38 & 41). The parties stipulated that claimant sustained an injury on July 30, 1990, that arose out of and in the course of employment with employer when claimant was thrown to the pavement on the parking lot while attempting to apprehend a shoplifter (Tran. p. 47). Claimant testified that she landed on her chest and left shoulder (Tran. pp. 47 & 48). The assistant manager took claimant to the Mercy Medical Clinic in Ankeny, Iowa, where she was seen by Kevin L. Moore, M.D., one of several doctors at the clinic. Dr. Page 3 Moore treated claimant for pulled muscles in the chest area around the sternum. Claimant testified that the most excruciating pain was the chest pain (Tran. p. 49). Dr. Moore recorded on July 30, 1990 that the chief complaint was left sided chest wall pain with shortness of breath. His physical examination disclosed (1) diminished bilateral breath sounds, (2) mild swelling and tenderness over the left pectoral chest wall, (3) tenderness to palpations of the left shoulder, and (4) full range of motion of the neck without crepitus or tenderness (Ex. 7; Ex. A, p. 16). Plain x-rays revealed no pneumothorax nor appreciable rib fractures. Dr. Moore's diagnosis was "Left chest wall contusion." (Ex. 1, p. 7; Ex. A, p. 16). Dr. Moore took claimant off work that same day on July 30, 1990. On August 1, 1990, the doctor recorded that there was slight improvement but because of continuing symptoms he ordered detailed x-rays of the ribs and these were read as being unremarkable (Ex. 1, p. 6; Ex. A, p. 17). On August 6, 1990, the doctor said claimant felt somewhat better but because of continued discomfort she was continued off work (Ex. 1, p. 6; Ex. A, p. 17). On August 13, 1990, claimant was not in acute distress, her lungs were clear and she had a full range of motion in both shoulders without tenderness. There was moderate tenderness to palpation of the anterior sternum. Claimant was released to return to work on August 13, 1990, with the limitation that she was only to attend meetings that week and that she was released to full duty as of August 20, 1990 (Tran. p. 50). Also on August 13, 1990, Dr. Moore ordered two more x-rays and a bone scan and scheduled a follow-up appointment for a recheck of her condition in one week (Ex. 1, p. 6; Ex. A, p. 17). Claimant said that she did not go back to Dr. Moore after August 13, 1990, "Because he said I was a big baby and I needed to get back to work." (Tran. p. 51). There is no evidence that the bone scan or x-rays that Dr. Moore ordered were ever taken. Claimant also contended that she was not happy with what Dr. Moore's nurse told her about a bone infarct that had occurred previously in January of 1990, when her stepdaughter struck her in the upper left arm in the course of a domestic dispute (Tran. pp. 67, 68 & 98). Claimant clarified that she was not claiming an injury or any disability from the infarct. She related that she was not claiming that the infarct was caused or aggravated by this injury (Tran. p. 52). Thus, although defendant was offering continued care and treatment as well as additional objective tests, claimant, nevertheless, elected to refuse this care and to seek care from her own choice of physicians, Ronald A. Shirk, D.O., Kelly S. Bast, M.D., and Paul R. Holzworth, M.D. (Tran. pp. 52 & 53). Claimant was previously employed by Dr. Shirk as his office nurse from January of 1966 until June of 1985, a period of approximately nine and one-half years (Ex. 1, p. 1). Claimant was also employed as the office nurse for Dr. Holzworth from the Fall of 1985 until Page 4 the Spring of 1988, a period of approximately two and one-half years, when she quit in order to work fewer and more flexible hours (Ex. 1, p. 2; Tran. pp. 27, 28, 30, 86 & 87). The records of the Holzworth, Bell, Shirk, Bast firm show that an appointment was made with Kirk D. Green, D.O., an orthopedic surgeon, on September 13. On September 15, 1990, Dr. Shirk saw claimant for an infected eye and diagnosed acute conjunctivitis. No mention is made of the injury of July 30, 1990 at this time. An office note from Dr. Shirk's clinic dated October 11, 1990 records that claimant complained of (1) chest pain and discomfort from the accident of July 30, 1990 after being thrown on the parking lot and (2) left arm pain from an injury of January 2, 1990, when she was hit by her stepdaughter. This is in handwriting and is probably the nurse's note that was presented to the doctor. On that same date Dr. Bast diagnosed (1) depression, (2) osteoarthritis, (3) left humeral bone infarct and (4) post-valium irritative phlebitis of the right arm vein. There is no evidence that any of these four diagnoses were attributable to the injury of July 30, 1990, according to his records (Ex. A, p. 11). Dr. Shirk's notes for October 26, 1990 and November 6, 1990, indicated left sternum pain. On October 26, 1990, a clinic note said claimant had multiple rib fractures which was diagnosed costochondritis. On May 6, 1991, Dr. Shirk said that claimant had ten ribs broken and complained of chest pain, back pain, rib pain, sore knees and hip discomfort. His impression was (1) multiple old fractures and (2) chronic pain syndrome with degenerative arthritis. He prescribed Prednisone, Amitriptyline and Prozac. On March 13, 1991, Dr. Shirk sent claimant to see Lawrence Rettenmeier, M.D., a rheumatologist at Mercy Arthritis Center (Ex. A, pp. 9-11; Tran. p. 57). On May 14, 1991, Dr. Rettenmeier reported to Dr. Shirk that claimant had polyarthralgias in all of her extremities with no indication that they were related to this injury. With respect to this injury Dr. Rettenmeier reported that claimant believed, "That the chest pain related to the rib fractures has improved some over time." (Ex. A, p. 25). On February 18, 1992, Dr. Rettenmeier wrote to Dr. Shirk that his impression was that claimant had (1) periarthritis of the left shoulder, (2) polyarthralgias which is resolved, (3) myofascial neck and shoulder girdle pain and (4) granuloma. This injury of July 30, 1990 was mentioned in the letter, but Dr. Rettenmeier did not make a specific statement of causal connection about any one of these four impressions (Ex. 1, p. 22). Radiology ordered by Dr. Shirk on July 16, 1991, showed only the bone infarct, otherwise the left shoulder was negative (Ex. 1, p. 20). Radiology ordered by Dr. Shirk on March 3, 1992, by way of a bone scan for claimant's complaints of back pain showed only (1) a normal spine and (2) an enchondroma as a result of the bone infarct (Ex. 1, p. 21). On March 16, 1992, Dr. Rettenmeier reported the Page 5 same diagnosis to Dr. Shirk of periarthritis, polyarthralgias, myofascial neck and shoulder pain, and granuloma. Dr. Rettenmeier does not give any statement of causal connection of these conditions to the injury of July 30, 1990 (Ex. 1, p. 24). Claimant was examined by Scott Neff, D.O., an orthopedic surgeon, who wrote to Dr. Shirk on July 14, 1991, that the infarct predated this injury. He also said the radiologist felt that the significantly increased uptake on the bone scan represented fractured ribs. Dr. Neff added, "She says that since her injury, she has now begun to hurt all over, and she has pain in her knees, ribs, neck, shoulder, and even her wrist." (Ex. 1, p. 26; Ex. A, p. 11). Dr. Neff was unable to causally connect all of these complaints to this injury. Dr. Neff wrote, "I am not certain what direct relationship might be between her injury which, apparently, was confined to the chest wall and her left shoulder, and the symptoms she is having all over her body. She has gone back to work, and, apparently, was off work for only 2 to 3 weeks." (Ex. 1, p. 27; Ex. A, p. 19). Dr. Neff thought she might have a mildly unstable shoulder due to deconditioning. Dr. Neff concluded, "At this time, I do not believe she is in definite need of any type of orthopaedic surgical treatment. I would recommend a rheumatological evaluation." (Ex. 1, p. 27; Ex. A, p. 19). Claimant testified that she was evaluated by William Koenig, M.D., a rehabilitation doctor, on one occasion (Tran. p. 58). His records show that he reported on March 10, 1992, that "Her main complaints, however, are significant difficulties with pain between the shoulder blades and in the cervical region, and at times extending nearly down to the hip region." (Ex. 1, p. 38). Dr. Koenig diagnosed, "Post-traumatic myofascial pain syndrome." (Ex. A, p. 38). On April 24, 1992, employer denied claimant's medical treatment that was performed after she discontinued seeing Dr. Moore with the following letter to claimant's attorney. Our records indicate that Ms. Loughry was injured on July 30, 1990 at our Kmart store in Des Moines, IA. She was provided with medical care at that time. On August 13, 1990, she was released to return to work. Our records indicate no fracture of any ribs, no mention of any other injuries. Since August, we have received no further medical reports, bills or communication that Ms. Loughry was still treating or having any continuing problems related to her injuries sustained on July 30, 1990. From your attached medical report, it would appear that Ms. Loughry has continued to treat for a condition that pre dated her work accident. Page 6 At this time, I am respectively declining to accept liability for this treatment and condition (Ex. B, p. 40). At the request of Dr. Holzworth claimant was examined by James L. Blessman, M.D., director of the Mercy Hospital Medical Pain Center for intractable pain in her posterior thorax and right hip. He reported on May 20, 1992, that her chest and thorax pain have improved considerably but her low back pain and right hip pain were getting worse. In the course of his examination Dr. Blessman found that her ability to perform physically was inconsistent. On a number of his examination tests he found that she exhibited symptom magnification. Dr. Blessman concluded, "My diagnostic opinion is that she has chronic myofascial pain syndrome with some components of symptom magnification." (Ex. 1, p. 17; Ex. A, p. 30). Claimant testified that she was examined and evaluated by John H. Kelley, M.D., an orthopedic surgeon, who gave her a very complete examination. The purpose of Dr. Kelley's examination was to determine whether her continuing complaints, after Dr. Moore's treatment, were caused by this injury and were therefore entitled to coverage under workers' compensation, or whether they were unrelated to this injury and that she was entitled to coverage under the group health insurance policy with Travelers Insurance Company. Claimant testified that Dr. Kelley determined that her symptoms were not work-related (Tran. p. 61). Dr. Kelley examined claimant on August 6, 1992, as well as her medical records and he reported on the same date (Ex. 1, p. 20; Ex. A, p. 31). Dr. Kelley accurately reviewed claimant's injury and subsequent treatment and examination by the several practitioners summarized above. He said that her current complaints were in her thoracic spine and lumbar spine extending into her right buttock which was aggravated by working and relieved by rest. His impression was (1) myofascial strain of the left shoulder, (2) contusion of the left chest wall, (3) status post biopsy enchondroma of the left humerous and (4) chronic myofascial pain of the lumbar dorsal spine. Dr. Kelley questioned whether the bone scan represented fractured ribs. He said the increased bone uptake may represent some evidence of injury at the costochondral region, however, increased uptake in this area was not uncommon. Dr. Kelley stated, "Since the uptake was noted in both the left and right anterior ribs, and is not associated with x-ray findings of rib fractures; I am not certain of its significance. X-rays at this time show no evidence of callus formation in the ribs indicating an old healed fracture. (Ex. A, p. 34, Ex. 1, p. 23). Moreover, it is noted that the injury that occurred on July 30, 1990 injured only the left chest and that claimant had a previous injury to both her right and left ribs on May 5, 1986, when her husband gave her a hug and there was a pop and Dr. Holzworth thought she had a separation or a cracked rib on the right costochondral area (Tran. p. 67; Ex. J, Page 7 Dep. Ex. 2). With respect to claimant's first numbered diagnosis, myofascial strain of the left shoulder, he found that claimant did not have any permanent impairment or disability in her left shoulder. He made no comment about his second numbered diagnosis, contusion of the left chest wall, and in all probability the contusion of the left chest wall had cleared up three years later. With respect to his third diagnosis the enchondroma of the left humerous, the parties are in agreement that this was not caused by this injury, but rather was caused when claimant was struck by her stepdaughter. With respect to his fourth numbered impression, chronic myofascial pain of the lumbar dorsal area, Dr. Kelley stated, In reviewing her records, it seems that the thoracic and lumbar back pain is of recent origin and is probably not related to her injury. She is not in good physical condition and does not get very much exercise other than what she does at work. It is my opinion that most of her back pain is secondary to poor conditioning and overweight. Since complaints of low back and low thoracic pain do not appear in the record until 1-1/2 years after her injury, I doubt there is any relationship (Ex. 1, p. 24; Ex. A, p. 35). Dr. Holzworth referred claimant to S. Randy Winston, M.D., a neurosurgeon, for evaluation. He saw claimant and reported on September 30, 1992. He said her chief complaint to him was low back pain and pain/numbness to the right foot which she experienced in March and August of 1992. Dr. Winston responded to Dr. Holzworth as follows. I think most of her problems seem to be musculature but she does have some complaints of numbness in the entire limb and so forth. I understand this dates and she has had intermittent difficulty since she was assaulted during an attempted shoplifting incident in 1990. For the most part, she has good reflexes with no pathologic signs and I have reassured her that her MRI shows no evidence of any surgical problem that we would need to be treating (Ex. A, p. 36; Ex. 1, p. 27) Dr. Winston gave his understanding that someone had related to him that these problems dated to the time she was assaulted. However, Dr. Winston did not give his own independent, professional medical opinion that the injury of July 30, 1990 was the cause of her current complaints. On December 22, 1992, it appears in another office note of Dr. Winston that claimant had a hobbled gait in her right lower extremity, discomfort on raising her right leg, and give-away weakness in all of her major muscle groups in her Page 8 right lower extremity. He said, objectively, however, straight leg raising was negative, her reflexes were symmetric, there were no pathologic or neurlogic signs. His impression was lumbar pain syndrome, chronic recurrent. He reviewed an MRI and it was negative for surgical pathology. Thus, Dr. Winston could not find an injury problem that warranted surgery nor did he specifically relate any of these symptoms, which were quite remote from the original chest wall pain and left shoulder tenderness, to the injury of July 30, 1990. On June 7, 1993, Dr. Holzworth wrote to claimant's attorney as follows: Her final diagnosis is: (1) Costochrondritis post traumatic to the chest. (2) Multiple rib fractures. (3) Myositis of the left shoulder. (4) Cervical myositis. (5) Muscle tension cephalgia. (6) Lumbosacral myositis. (7) Tennis elbow bilateral. (8) Right sciatic neuritis. * * * All of these conditions were caused by the accident of 7-30-90 or represent aggravations of pre-existing conditions. * * * Due to long duration and persistency of her injuries Judi Loughry will be unable to engage in any full time gainful employment. She will have to avoid lifting over 20 lbs. No sitting, standing or lifting for periods of over one-half hour duration. This patient will need physical therapy, medication and examinations and treatment on a regular basis. If her symptoms increase in nature she will need surgical consultation and corrective surgery. I have taken care of this patient since 1973. I have also had her as a nursing assistant in my office. I found her to be honest and reliable (Ex. A, p. 2 & 3) On August 30, 1993, Dr. Holzworth provided an impairment rating to claimant's attorney, "This patient has on a functional basis a sixty percent disability. She will be seen in my office for a disability rating according to the A.M.A. guidelines." (Ex. A, p. 1). On August 31, 1993, Dr. Holzworth gave a more detailed breakdown of his evaluation and it resulted in a 53 percent impairment (Ex. A, pp. 4 & 5). Page 9 Dr. Holzworth gave a deposition on September 27, 1993, three days prior to hearing, in which he gave the background for his opinions, explained them in more detail and in which he reaffirmed these opinions (Ex. J). In conclusion, in reviewing the foregoing medical evidence and testimony of claimant, it is determined that the opinion of Dr. Moore, the authorized treating physician is preferred over the opinion of Dr. Holzworth, the unauthorized treating physician, who has treated claimant since 1973 and he or his firm was her employer for approximately 13 years. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Likewise, the opinion of Dr. Kelley is preferred over the opinion of Dr. Holzworth for the reason that it appears to be more objective and comports best with claimant's original diagnosis and treatment by Dr. Moore. Rockwell Graphics Systems, Inc., 366 N.W.2d 187, 192 (Iowa 1985). The opinions of Dr. Green, Dr. Neff, Dr. Blessman, Dr. Koenig, and Dr. Winston failed to specifically causal connect claimant's myriad symptoms to this injury. Furthermore, it is noted that claimant has had multiple health problems and symptoms prior to this injury, especially osteoarthoritis, and she continues to have the same symptoms after this injury. Claimant testified at the hearing that her left shoulder pain was "nearly gone" (Tran. p. 57). Claimant admitted that she was diagnosed with having osteoarthoritis in March of 1989 (Tran. p. 97). Claimant also admitted that Dr. Holzworth records showed that she was complaining of arthritis and an ache in the wrist, knees and the back in April of 1990 (Tran. p. 99). Wherefore, based upon the foregoing evidence it is determined that the injury of July 30, 1990 was not the cause of permanent disability based upon the reports of Dr. Moore, Dr. Kelley, Dr. Green, Dr. Neff, Dr. Blessman, Dr. Koenig, and Dr. Winston. Neither did any of these doctors find that claimant had sustained any permanent impairment or permanent disability and none of these doctors issued a permanent impairment rating. Therefore, it is determined that the injury of July 30, 1990 was not the cause of permanent disability and claimant is not entitled to any permanent disability benefits. PENALTY BENEFITS It is determined that (1) since claimant was paid temporary total disability benefits promptly and (2) that she is not entitled to any permanent partial disability benefits, that no penalty benefits are due to claimant for a delay in the commencement or in the termination of benefits without reasonable or probable cause or excuse. Iowa Code section 86.13 unnumbered paragraph 4. Page 10 MEDICAL BENEFITS Claimant has attached a statement of medical expenses to the prehearing report dated September 27, 1993. Defendant is liable for the $209.00 of medical expenses charged by the Mercy Ankeny Medical Clinic for treatment on July 30, 1990, August 1, 1990, August 6, 1990 and August 15, 1990. Defendant is also liable for the $665.00 charged by Dr. John Kelley, M.D., on August 6, 1992 because defendant ordered this examination. Claimant has not demonstrated that the remaining expenses were caused by this injury. Therefore, claimant is not entitled to payment of the charges of the Iowa Orthopaedic Center in the amount of $467.00, the charges of Mercy Hospital in the amount of $3,934.52, the charges of Drs. Holzworth, Bell, Shirk & Bast in the total amount of $1,179.00, the charges of the Therapy Center in the amount of $721.25, the Lab charges in the amount of $65.00, the charges of the Mercy Arthritis Center in the amount of $406.00, the charges of Dr. Neff in the amount of $217.00, the charges of South Des Moines Sports Medicine in the amount of $916.00, the charge of Dr. Winston in the amount of $90.00 and the charges of Gregory Norton, D.C., a chiropractor in the amount of $368.00. According to claimant all of these expenses total $9,237.37. However, claimant is only entitled to be paid for the Mercy Ankeny Medical Clinic in the amount of $209.00 and the charge of Dr. Kelly in the amount of $665.00. Furthermore, the physicians that claimant retained after Dr. Moore were not authorized treating physicians. Iowa Code section 85.27. Dr. Kelley admittedly was not employed by claimant, but rather by defendant, and therefore they owe for his charges. Brenda Martin, personnel manager, testified that Dr. Moore was the only authorized treating physician (Tran. p. 151). Martin also testified that Dr. Holzworth or his group who gave claimant medical attention were not authorized by employer (Tran. p. 152). That fact that defendant may have erroneously shown in an interrogatory that Dr. Holzworth was an authorized treating physician and may have erroneously made one payment to Dr. Holzworth does not in fact, or in law, make Dr. Holzworth an authorized treating physician (Ex. A, p. 48). Claimant knew that Dr. Holzworth was not an authorized treating physician. RATE OF COMPENSATION It is determined that the proper rate of compensation is $165.01 based upon a married person with four exemptions whose gross earnings were $230.00 per week at the time of this injury. Claimant has two children. Lucas was adopted by her Page 11 and her first husband. Kari is her stepdaughter, who is apparently the daughter of her current husband (Tran. p. 20 & 81). Both children were living with claimant and her husband at the time of this injury (Tran. pp. 81 & 83). Claimant admitted that she and her first husband were under a decree where they would alternate on who would take a deduction for Lucas on their tax returns (Tran. p. 83). Defendant contended that claimant was not entitled to an exemption or deduction for Kari because as a stepdaughter, claimant was not legally obligated to provide her support (Tran. p. 85). However, defendant's contention is not correct. The dependency exemption depends upon whether claimant was eligible to claim both children as an exemption for actual dependency on her income tax return at the time of the injury. Iowa Code section 85.61(6). Hootman v. Mercy Hospital, file no. 903234 (Appeal Decn. March 9, 1994). Claimant did not actually prove, as a matter of fact, that she and her husband were entitled to claim both children as dependents and take an income tax deduction at the time of the injury. However, defendant's counsel in his closing statement stipulated that the stepdaughter was always claimed as a dependent and an exemption was taken for that dependency (Tran. p. 175). Wherefore, it is determined that claimant was married and was entitled to four exemptions, herself, her husband, Lucas and Kari at the time of the injury. The Guide to Iowa Workers' Compensation Claim Handling, in effect on July 30, 1990 at page 23 shows that the proper rate for a person earning $230.00 per week who is married and entitled to four exemptions is $165.01. The income tax rules do not require a person to have a support obligation under the law in order to claim that person as an exemption and take a deduction. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant is entitled to two weeks of temporary total disability benefits for the period from July 30, 1990 to August 13, 1990, a period of two weeks. Iowa Code sections 85.32 and 85.33. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of July 30, 1990 was the cause of permanent disability and therefore she is not entitled to permanent disability benefits. Iowa Code section 85.34; 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 did not sustain the burden of proof by a preponderance of the evidence that she is entitled to penalty benefits. Iowa Code section 85.13(4). Page 12 That claimant did sustain the burden of proof by a preponderance of the evidence that she is entitled to the medical expenses of Mercy Ankeny Medical Clinic in the amount of $209.00 and the expense of the examination by Dr. Kelley in the amount of $665.00. Iowa Code sections 85.27 and 85.39. That claimant did not sustain the burden of proof by a preponderance of the evidence that any of the other physicians were authorized physicians nor did claimant prove that their treatment was caused by this injury. Iowa Code section 85.27; Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945). That defendant stipulated that claimant's stepdaughter, Kari, was taken as a dependency exemption on claimant's income tax return at the time of this injury and therefore claimant is entitled to a rate based upon married and four exemptions which resulted in a rate of $165.01 per week. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant two weeks of temporary total disability benefits at the rate of one hundred sixty-five and 01/100 dollars ($165.01) per week commencing on July 30, 1990, in the total amount of three hundred thirty and 02/100 dollars ($330.02). Page 13 That defendant is entitled to a credit for two weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of one hundred sixty-three and 34/100 dollars ($163.34) per week in the total amount of three hundred twenty-six and 68/100 dollars ($326.68). That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant pay to claimant or the provider of medical services two hundred nine dollars ($209.00) for the charges of Mercy Ankeny Medical Clinic and six hundred sixty-five dollars ($665.00) for the charges of Dr. Kelley. That each party is to pay their own separate costs of this action, except that defendant is to pay the cost of the attendance of the court reporter at hearing and the cost of the transcript of hearing, pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. That defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Kent M. Peterson Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 West Des Moines, IA 50265 Mr. Joel T. S. Greer Attorney at Law 112 West Church Street Marshalltown, IA 50158 1108.50, 1401, 1402.40, 1803, 1802, 2500, 2503, 2700, 4000.22 3002, 3003 Filed May 3, 1994 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JUDY LOUGHRY, Claimant, File No. 956513 vs. A B R I T R A T I O N K-MART CORPORATION, D E C I S I O N Employer, Self-Insured Defendant. ___________________________________________________________ 1802 Claimant, a loss prevention manager, was thrown to the pavement while attempting to apprehend a shoplifter. She suffered a chest contusion and tenderness of the left shoulder. Claimant was awarded two weeks of temporary total disability for two weeks that she was taken off work by the authorized treating physician. Claimant was not allowed temporary total disability for her first week back to work when she was only allowed to attend meetings because she received full pay for this period of time. 1108.50, 1401, 1402.40, 1803 It was determined that the injury was not the cause of permanent disability and that claimant was not entitled to permanent disability benefits. Claimant abandoned her authorized treating physician and sought care from the medical clinic doctors for whom she had worked for 13 years in the past. The leading doctor in this firm diagnosed eight conditions either caused or aggravated by this injury. He made these determinations about three years after the injury and just a short time before hearing. This firm also referred claimant out to five other specialists for myriad health conditions, mostly arthritic in nature. None of these five doctors provided any specific causal connection to this injury even though they mentioned it by way of history. Claimant was evaluated, for defendant, by an independent orthopedic surgeon to determine if workers' compensation was liable for certain benefits or whether the group health policy was liable for certain benefits. This Page 2 doctor determined that her complaints were not work-related. He and the original authorized treating physician were preferred as more objective and reliable than the firm for which she previously had worked. 2500, 2503, 2700 Claimant was awarded the medical expense of the authorized treating physician and the independent evaluation ordered by defendant. The other approximately $9,000 in medical expenses were not allowed. It was determined that these physicians were unauthorized and also that their examination, care and treatment was not for a condition caused by this injury. The fact that defendant erroneously stated in a deposition that an unauthorized physician was an authorized physician, and may have even paid one of his bills erroneously, did not in law or in fact constitute an unauthorized physician as an authorized physician, when claimant knew he was not authorized. 4000.22 No penalty benefits were awarded. The temporary benefits were paid promptly. Claimant was not entitled to permanent benefits. 3002, 3003 There was not enough evidence to accurately determine the rate issue of dependency of a stepdaughter. In closing argument, defendant's counsel stated that he stipulated that in her tax returns that claimant had taken a dependency deduction for her stepdaughter. This was determined to be sufficient to allow claimant to be entitled to count the stepdaughter as a dependent for workers' compensation purposes. Defendant's counsel argued that a legal obligation to support the stepdaughter was required. It was determined that the test is whether claimant was eligible to claim the stepdaughter as a dependent on her income tax return. The latter test depends on income tax rules and not support obligation rules. The fact claimant had taken an income tax exemption and deduction for dependency supported a workers' compensation allowance for the stepdaughter as an exemption. Hootman v. Mercy Hospital, file no. 902234 (Appeal Decn. March 9, 1994). BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ELKE STEAHR, Claimant, vs. File No. 956526 PACIFIC COAST FEATHER COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and INSURANCE COMPANY OF NORTH AMERICA, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Elke Steahr, against her former employer, Pacific Coast Feather Company and its insurance carrier, Insurance Company of North America, both as defendants. Claimant has alleged that she sustained a work-related injury on July 20, 1990. The evidence in this case consists of testimony from the claimant; and, joint exhibits 1-14. The case came on for hearing before the undersigned deputy industrial commissioner on June 2, 1993 at Davenport, Iowa. ISSUES The parties have submitted the following issues for resolution: 1. Whether claimant sustained an injury on July 20, 1990 which arose out of and in the course of her employment; and 2. Whether claimant is entitled to temporary disability benefits or permanent partial disability benefits. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Elke Steahr was born in Germany on April 26, 1940. At the time of the hearing, she was 53 years of age. She is married, and has one grown child who is 32 years old. Claimant has limited formal education, but completed the seventh grade while in Germany, quitting school at an early age. She described her course work as general Page 2 studies, and she did not attend college. Mrs. Steahr began working once she quit school, and her first job in Germany was with a paper bag manufacturer. She worked on the production line emptying and mounting machines and packing the bags. She moved to the United States, specifically to North Carolina, in 1963. When she first arrived in the States, she could not speak any English, but started watching television, and learned English from soap operas. Today, claimant can read some English, but is able to write only German. She relies upon her husband to write things in English. Claimant's first job in the States was ironing men's shirts for a laundry service located in Muscatine, Iowa. This position required some twisting and bending movements, but no lifting. Next, Mrs. Steahr worked for Thatcher Glass and Plastics, a company which manufactured plastic tubes for Avon. Claimant's position involved removing the empty tubes from the machines and packing them for shipment. The products were not heavy as the items weighed two or three pounds, but the shipping boxes weighed much more. She was required to stand to perform this job, and quit when she was injured by a box that fell on her head. Claimant returned to the laundry service in Muscatine for a short time, and then secured employment with the Heinz plant where she "poked pickles and vegetables," deboned meats and sorted tomatoes. This position required her to stand all day, and perform an extensive amount of twisting and bending. Most of the heavy lifting was done by the men at the plant. She worked at the plant for three years, and eventually moved to Maquoketa, Iowa, where she has lived for the past 17 years. Claimant worked for a short time at the hospital in Maquoketa, and then began working for Wady Welding. Wady's, now defunct, manufactured and built steel baskets used by crews in road construction. Claimant performed labor intensive activities at Wady's, including welding, cutting steel, sawing steel bars and running a forklift. She sustained a work-related injury, and was fired when she went to see a physician about her injuries. Later, she was rehired by the company. Claimant testified that she fully recovered from the injury sustained at Wady's. After a period of unemployment lasting two or three years, Mrs. Steahr's next job was with the defendant in the case, Pacific Coast Feather Company, a company which manufactures bedding. Initially, claimant made pillows, as she filled the cases while they were on the pillow machine, and then took the stuffed products off of the bats. This position required standing, stooping, bending and twisting activities. After three months, claimant was placed on a job making sheets used for waterbeds. Page 3 Next, claimant became a quilter for the employer, a job she began sometime in 1983. As a quilter, her job duties included operating a scroller machine that made different sizes and types of comforters and other bedding. The steel tables and aluminum frames used needed to be taken apart and adjusted to accommodate the size of bedding being made, twin, double, queen or king. The tables used were very heavy, and the frames were quite bulky. Once the tables and frames were adjusted and set to the proper size, claimant would stretch the fabric over the frame and prepare it for the stitching. Some of the work required her to crawl under the table to obtain the necessary settings. Once the machines were set properly, the sewing machines would stitch the patterns on the top portion of the bedding, and hydraulic arms would move the frames down the table. At the time of her injury, she was earning $4.75 per hour, with a $.20 increase for working second shift. In 1985, claimant underwent a laminectomy at the L4-5 level. She was off of work for approximately three months, but she returned to her position as a quilter on the scrolling machine. She indicated that from 1985 until July 20, 1990, she did not encounter any difficulties performing her job duties, and did not miss any work. On July 20, 1990, claimant was working on comforters which were filled with feathers. Her quota was to complete 37 comforters in one hour, but claimant's machine was in very bad condition and was not working properly. Apparently, the hydraulic component was ineffective and claimant was forced to manually turn the frame in order for the comforters to be sewn correctly. This required her to push and pull on the frame, and in four hours, claimant had not yet completed one comforter. At some point during her evening shift, and while claimant was "yanking" the frame, she slipped, fell backwards and hit her lower back and head on a pole which was located close or within her work station. She told her supervisor what had happened, but was told to return to her machine. Claimant continued to push, pull and "yank" on the machine in order to complete her work, and finished her Friday night shift. When she arrived at her home, she continued to feel pain in her back. Her husband told her to take a bath, which claimant did, hoping that it would relieve her pain. She continued to feel pain throughout the weekend, and on Monday called her supervisor, Robin and told her she was going to see a physician, Raymond Hamilton, D.O., at Medical Associates of Maquoketa, P.C. The initial report states that claimant was complaining of pain in her cervical spine, shoulder and low back. An examination revealed that the range of motion in her neck was normal, but noted tenderness in both the cervical and lumbar areas of the spine. Straight leg raising tests were negative. She was given Motrin, and taken off of work. She was to return to Dr. Hamilton in two days. (Joint Exhibit 3, pp. 1-2; 19). On July 25, 1990, claimant returned to the clinic and Page 4 met with John K. Meyer, D.O., who diagnosed an acute dorsal and cervical myositis. He administered an injection, prescribed propoxyphene for pain and kept claimant off of work. (Jt. Ex. 1, pp. 3, 19). Claimant returned to Dr. Meyers on several occasions during July of 1990. She continued to complain of pain in the upper and midback, and limited range of motion in the neck. He detected muscle spasms in the cervical and dorsal spine, and continued to prescribe analgesic and anti-inflammatory medications. He also diagnosed thrombophlebitis in the right lower leg, and claimant was eventually referred to Byron Rovine, M.D., for a neurological evaluation. (Jt. Ex. 3, pp. 4-6; 19-21). Dr. Rovine's report is dated August 6, 1990. He was the surgeon who had performed the laminectomy in 1985, and after a review of her history and examination, Dr. Rovine believed claimant was suffering from a severe muscle strain involving the paravertebral muscles in the neck and upper back. He suspected a substrate of degenerative arthritis of the cervical and thoracic spine as well. He recommended continued rest, analgesics and Valium for muscle relaxation. He also recommended additional x-rays, which were taken at the Jackson County Public Hospital. The x-ray report concludes that claimant had a normal cervical spine, and generalized osteoporosis and spurring in the thoracic spine. There was no evidence of an acute injury. (Jt. Ex. 4, pp. 1-2; Jt. Ex. 5, p. 1). Claimant returned to Dr. Hamilton on August 10, 1990. After an examination, he noted dorsal and cervical syositis, improvement of the thrombophlebitis of the right leg, and referred claimant to an orthopedist, John Hoffman, M.D. His examination revealed a popliteal cyst, with tenderness and swelling about the knee. He reviewed the x-rays, and sent claimant for an MRI to better define the pathology of claimant's problem. The MRI of the right knee showed an extensive horizontal tear of the lateral meniscus and probable thrombosis of the popliteal vein. (Jt. Ex. 6, p. 1; Jt. Ex. 5, p. 4; Jt. Ex. 7). Claimant returned to Dr. Hoffman on September 6, 1990, and underwent a right knee arthroscopy, meniscectomy and chondroplasty on September 12, 1990. (Jt. Ex. 9). Afterwards, she was sent to physical therapy for straight leg raising and quad sitting exercises. She was to return for a follow-up examination in two weeks. (Jt. Ex. 6, pp. 2-3; Jt. Ex. 3, p. 12). After several other follow-up examinations, Dr. Hoffman, in April of 1991, released claimant from his care, and assigned a 10 percent permanent partial impairment of the lower extremity due to the surgery, loss of motion and decrease in "quad bulk." (Jt. Ex. 6, pp. 4-7). It should be noted that during August, September and October of 1990, in addition to receiving treatment from Dr. Hoffman, claimant was also visiting various physicians at the Maquoketa clinic for aches and pains in her back, right shoulder, right knee and other ailments, such as Page 5 stomach aches and chest pains. (Jt. Ex. 3, pp. 11-15; pp. 22-24). On September 26, 1990, claimant underwent a right leg venogram, but no thrombi or obstructive diseases were noted. Several days later, claimant underwent an upper G.I. examination due to nausea. (Jt. Ex. 5, pp. 6-7). Dr. Rovine reevaluated claimant on October 26, 1990. After his examination, which showed no evidence of muscular weakness of sensory deficit, he believed that claimant was suffering from musculature pain. He referred her to Fareedudin Ahmed, M.D., a physiatrist. (Jt. Ex. 3, p. 15, p. 24, pp. 26a-27; Jt. Ex. 4, pp. 3-3a). His first consultation with claimant was on October 30, 1990, and after an examination, he believed claimant sustained a paraspinal muscle strain in the neck and mid thoracic region. He recommended physical therapy three times per week at Mercy Hospital. (Jt. Ex. 10, pp. 1-7). She was evaluated at the hospital in November of 1990. Objective findings included some limited range of motion in her cervical spin, tenderness and trigger points in the left upper trapezius muscle, as well as muscle spasms throughout the mid thoracic area. While the undersigned in unable to locate the discharge notes, it is shown by the evidence that claimant underwent a three-four month physical therapy program. Final notes from the hospital indicate that claimant underwent an EMG of the lower extremities, the results of which appear to be within normal limits. Final notations from the therapist show that claimant was able to tolerate occasional lifting of 40 pounds, and that her physical condition was improving. Apparently, she was to return to work at the end of February. (Jt. Ex. 2, pp. 3-9; Jt. Ex. 10, pp. 10-11). Claimant returned to the clinic to see Dr. Meyer on April 4, 1991. She was complaining of pain in her back and down her arms and fingers. Her right hand felt numb. Claimant was also complaining of pain in her right leg. Dr. Meyer still believed that claimant had a musculoskeletal problem and was unable to offer any relief. He suggested she return to Dr. Rovine or get a second opinion from the University of Iowa or Mayo Clinic. Dr. Meyer also states that he was unable to objectively reproduce or define claimant's complaints of pain, and he wondered whether all of the complaints were due to the work injury. (Jt. Ex. 3, p. 25). According to Dr. Ahmed's records, claimant was finally released to return to work in March of 1991, but after three or four hours at work, claimant left because she was in a great amount of pain. His last appointment with claimant was on April 12, 1991, and he states in his notes that after claimant's rigorous and extensive physical therapy program, she had almost completely, yet after all the work, she returned to him with all of her original complaints. He advised an alternate occupation, and referred claimant to a Gerald Hale, M.D., for an epidural block used for pain management. Eventually, claimant cancelled this appointment. (Jt. Ex. 10, p. 12). Page 6 On April 30, 1991, at the request of Intracorp, J. R.. Lee, M.D., a physician at the Franciscan Medical Center, in Rock Island, Illinois, evaluated claimant. He reviewed her history and medical records, and conducted a physical examination. Dr. Lee noted tenderness in the dorsal and lumbar area, with restricted range of motion. Additional x-rays revealed degenerative disc disease at the L5-S1 level, with some traction spur at the L3-4 level. He diagnosed thoracic arthritis, degenerative disc disease at the L5-S1 level of the lumbar spine, dorsal and lumbar spine strain and preexisting arthritis at the dorsal and lumbar areas of the spine. He believed that the back strain was most likely a provoking factor, with the arthritis a preexisting condition. He recommended a work hardening program to evaluate her residual function. (Jt. Ex. 11, pp. 1-3). Finally, Dr. Ahmed indicates in a report dated May 24, 1991, that claimant had achieved maximum benefits from the rehabilitative services, and that physically, there was no apparent limitation to the performance of her job. His final diagnosis was degenerative arthritis of the thoraco lumbar spine with periodic strain of the thoraco lumbar paraspinals. Based on the AMA Guides, there was no impairment rating to correlate with this diagnosis. (Jt. Ex. 10, p. 13). In January of 1992, Dr. Ahmed was called upon by the Disability Determination Services Bureau to render an opinion about claimant's condition. He offered that he had not seen claimant since April 12, 1991, and that during his examination, he was unable to detect any clinical findings that would substantiate her complaints of physical discomfort. (Jt. Ex. 10, p. 14). In June of 1992, Dr. Meyer reviewed claimant's medical records, and recalled his own past treatment rendered to claimant. He agreed with Dr. Ahmed's opinion that she suffered from degenerative arthritis of the thoracic and lumbar spine, and occasionally suffered periodic strains of the thoracic and lumbar spinal muscles. These conditions caused great pain, brought on by the type of work she had been performing. Dr. Meyer limited claimant's activities to occasional lifting and carrying of no more than 20 pounds, and occasional stooping, pushing, pulling and reaching overhead. He believed he was not qualified to assign a percentage of impairment. (Jt. Ex. 3, p. 26). In June of 1992, claimant underwent a functional capacity evaluation at the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals and Clinics in Iowa City, Iowa. It is noted that she had undergone testing in April of 1992 at the University of Iowa as well. She was evaluated by various members of the spine team, including Karen Drake and Deb Parrott, physical therapists; Hutha Sayre, a clinical coordinator; and, Tom Lanes, a vocational consultant. The overall evaluation indicates that claimant was self-limiting and showed severe pain behavior. Various test results showed that claimant's current physical Page 7 conditioning and endurance levels were weak, and she would be suitable to perform only sedentary-light work tasks. The team recommended that claimant perform daily light exercise program, take personal responsibility for a recovery, and "grasp the concept of hurt vs. harm, accept that your back is solid, stable and healed and have faith in your own ability to manage your situation. Good recovery is definitely possible with appropriate efforts." (Jt. Ex. 13, pp. 2-3). Some individual assessments performed at the University of Iowa are worth mentioning. Mr. Lanes, the vocational rehabilitation consultant, was unable to discuss any vocational options with claimant due to her belief that she was unemployable. (Jt. Ex. 13, pp. 4-5). Ernest Found, Jr. M.D., was of the opinion that claimant suffered from chronic pain syndrome and multiple incongruities. No surgical treatment or further investigatory studies were warranted, because claimant's physical examination was basically normal. (Jt. Ex. 13, pp. 12-13). Dr. Ahmed was deposed on September 1, 1992. His deposition testimony is consistent with the opinions he expressed in his medical records. (Jt. Ex. 12). Dr. Ahmed confirmed during his deposition, taken September 1, 1992, that when claimant returned to her job with the defendant, her physical condition became worse. (Jt. Ex. 12, p. 25). He again opined that claimant had a preexisting arthritic condition that was aggravated by the work injury. (Jt. Ex. 12, pp. 30-31). A job analysis of the scrolling job, the job which claimant was performing at the time of her injury was documented by Intracorp. It states that the worker must be able to lift 40 to 50 pounds, carry 40 pounds three feet, bend and reach frequently, push, pull and twist from the waist and rotate the shoulders. (Jt. Ex. 8, p. 5). * Presently, claimant finds it difficult to perform most housework duties, getting dressed, carrying things and sleeping. While her hobbies include knitting, crocheting, gardening and fishing, whenever she participates in these activities, she feels pain. Claimant testified that because she did not feel ready, willing and able to work, she did not apply for unemployment. Currently, she works at a thrift store, attaching prices for items and waiting on customers. She enjoys working at the shop, and apparently is able to perform the majority of her work sitting down. The shop is a nonprofit organization, and she does not earn wages for work performed. ANALYSIS AND CONCLUSIONS OF LAW The first issue to address is whether claimant sustained an injury on July 20, 1990 which arose out of and in the course of her employment. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). Page 8 The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). Defendants argue that claimant has been inconsistent with her version as to how the injury occurred. They offer that none of the medical records are consistent with her testimony, and that due to the time lapse between the injury and claimant's first recognition of pain. Claimant testified that she was working on a machine which was malfunctioning. Apparently, the machine had not been repaired for some time, and claimant was forced to do manually work that was normally done by a hydraulics system on the machine. She indicated that during one hour, more than 35 comforters were to have been sewn, yet in four hours, claimant had not completed one comforter. While the undersigned, who also presided at the hearing, at times found it difficult to understand the claimant, she was able to explain how her work was completed, and how the injury occurred. July 20, 1990, was a Friday, and she visited the doctor on the following Monday. There is no evidence in the record that indicated claimant hurt herself at home, and given the circumstances at work, including the condition of the machine on which claimant was working, it appears more likely than not that claimant injured herself while on the job. While some of the medical records differ in the written comments about the incident, the undersigned believes claimant does have difficulty in expressing herself, and is somewhat unsophisticated in her ability to describe events. This was certainly evident during the hearing. Likewise, claimant had been working on a very regular basis for more than five years prior to this incident. It appears that she was a dependable, conscientious employee who, despite her attempts at having the machine fixed or repaired by qualified people at the plant, continued to try and reach her quota during the evening shift. She displayed much effort for $4.85 per hour. This is no serious argument to dispute her story, and claimant was working during her assigned shift, performing her duties in a manner consistent with completing her tasks and necessitated by the work conditions. As a result, the record supports a finding that claimant sustained an injury to her back on July 20, 1990 which arose out of and in the course of her employment. The next issue is whether there is a causal connection between the injury and claimant's disability. Page 9 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). While the parties were able to stipulate that claimant had sustained a 10 percent impairment to the right leg in the event a work-related injury is found, and the defendants have paid certain amounts of healing period and permanent partial disability benefits, there is a dispute as to whether claimant sustained an injury to the body as a whole due to the July 20, 1990 incident at work. If she did, of course, an analysis of her industrial disability would be warranted. Once again, the medical records are replete with notations regarding claimant's complaints of pain and discomfort in her back. There is no documentation regarding any intervening incidents to claimant's back. Several physicians provided the requisite opinions regarding the causal connection between claimant's work accident and the flare-up of her arthritic condition. Both Drs. Ahmed and Meyer, who were claimant's treating physicians, believed that she had underlying arthritis that was aggravated by the work injury. She has been assigned permanent work restrictions and has undergone numerous physical therapy treatments. Page 10 Again, claimant has shown by a preponderance of the evidence that she sustained a work-related injury to her back on July 20, 1990. Therefore, an analysis of her industrial disability, or reduction in earning capacity, is proper. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which 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 Page 11 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. At the time of the hearing, claimant was 53 years of age. She has not been gainfully employed for the past three years. Her educational level is very limited, although she appeared to be of average intellect. Retraining, however at this stage of her life, would probably be very difficult and would probably yield less than desirable results. Claimant's transferable skills are negligible. She has worked in very physical labor positions in the past, and has for the majority of her life worked for minimum wages. She has shown herself to be a very dependable, hard-working employee. Claimant has had a difficult time accepting that she must assume responsibility for her own well-being and recovery. Pills and therapy will not in and of themselves help her, but merely provide the backdrop in order to make her recovery plausible. Her motivation to return to any type of work is questionable, although she does work for the thrift shop. The record is devoid of any attempts by the claimant to secure suitable work for which she will be paid. And, while claimant is not able to return to the type of work she once did, she should be able to find some type of job which will accommodate her restrictions and limitations and still pay minimum wage, which is the same wage category she was in when she was injured. She has had a variety of medical treatments and modalities. Her effort has been questioned several times. No physician associated with the case has been able to assign a percentage of permanent impairment, although functional ratings are merely one component of an industrial disability. The healing period has been substantial, as she treated with Dr. Ahmed until May 24, 1991, almost one year after the incident. After considering all of the factors, especially claimant's work restrictions of limited bending, twisting, stooping and turning; lifting of not more than 40 pounds on a regular basis; claimant's age; the severity of the injury to the back; her overall physical condition including the 10 percent impairment to her knee; and, claimant's motivation to get well and return to a job, the undersigned finds she has sustained a 25 percent industrial disability. ORDER THEREFORE, IT IS ORDERED: Page 12 That due to the impairment to her right lower extremity, defendants shall pay claimant permanent partial disability benefits totaling twenty-two (22) weeks at the rate of $145.74 per week beginning April 4, 1991. That defendants shall pay claimant permanent partial disability benefits totaling one hundred twenty-five (125) weeks at the rate of one hundred forty-five and 74/100 dollars ($145.74) per week commencing May 24, 1991. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1993. ______________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven Berger Attorney at Law Kahl Bldg, Ste. 900 326 Third St. Davenport, IA 52801-1280 Ms. Deborah Dubik Mr. Craig A. Levien Attorneys at Law 600 Union Arcade Bldg. 111 E. Third St. Davenport, IA 52801-1596 5-1803 Filed July 23, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ELKE STEAHR, Claimant, vs. File No. 956526 PACIFIC COAST FEATHER COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and INSURANCE COMPANY OF NORTH AMERICA, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Extent of industrial disability. Claimant awarded 25 percent based on age (53); ability to undergo retraining (minimal); motivation (very little); and defendant-employer's efforts to accommodate (minimal). She had suffered a back strain, but was saddled with permanent work restrictions of no lifting of more than 40 pounds, and limited bending, lifting and stooping. All jobs she had held in the past required these activities. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ELKE STEAHR, Claimant, File No. 956526 vs. N U N C PACIFIC COAST FEATHER COMPANY, P R O Employer, T U N C and O R D E R INSURANCE COMPANY OF NORTH AMERICA, Insurance Carrier, Defendants. ___________________________________________________________ The undersigned filed an arbitration decision for this case on July 23, 1993. Due to a scriveners error, the order was incorrect, and is modified to read as follows: That defendants shall pay claimant permanent partial disability benefits totaling one hundred twenty-five (125) weeks at the rate of one hundred forty-five and 74/100 dollars ($145.74) per week commencing May 24, 1991. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1993. ______________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven Berger Page 2 Attorney at Law Kahl Bldg, Ste. 900 326 Third St. Davenport, IA 52801-1280 Ms. Deborah Dubik Mr. Craig A. Levien Attorneys at Law 600 Union Arcade Bldg. 111 E. Third St. Davenport, IA 52801-1596 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SCOTT COOPS, : : Claimant, : : vs. : : File No. 956627 HY-VEE FOOD STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Scott Coops, claimant, against Hy-Vee, employer, and Employers Mutual Companies, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on August 3, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on November 15, 1993, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying was Sheila Sadler. The documentary evidence identified in the record consists of exhibits 1 through 9 and claimant's exhibits I through V. ISSUE The parties have presented the following issue for resolution: Whether claimant's injury on August 3, 1990, has caused permanent disability and, if so, the extent thereof. 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 December 23, 1964, and completed the twelfth grade of school. He commenced working for employer on July 16, 1990, and was terminated on October 26, 1990, when he failed to report to work after being released to do so by David Berg, D.O., his treating physician. Prior to commencing work for employer, claimant worked as a bicycle mechanic, bicycle sales person, small cabinet carpenter and machinist. After his dis-charge in October Page 2 1990, claimant worked full time as a sales clerk and part-time as a restaurant order taker and bicycle mechanic. Since September 1992, claimant has been enrolled full time at Hawkeye Community College in the photography program. He receives financial assistance in the form of room, board and tuition while attending school. The parties do not dispute that claimant was injured on August 3, 1990, while performing his job as a part-time order selector in employer's grocery warehouse. The pertinent medical evidence of record reveals that claimant reported to the Chariton Medical Center on August 3, 1990, with complaints of low back pain. He saw Lawrence Rasmussen, M.D., who referred him for x-rays at Lucas County Health Center on August 7, 1990. The x-rays revealed a grade I spondylolisthesis at L-5 upon S-1. Dr. Rasmussen authorized three days of physical therapy at the hospital. He diagnosed claimant lumbosacral strain with preexisting spondylolisthesis. A referral was made to Dr. Berg (ex. A-4 & 6). Dr. Berg initially saw claimant on August 14, 1990. On examination he reported some tenderness over the L5-S1 disc space with very minor soft tissue tenderness surrounding the area. Passive and active range of motion of the spine, both sitting and standing, was normal. There was no spasm or trigger points noted. Straight leg raising was negative. He was able to easily walk on his heals and toes. There was no neuromotor or vascular deficits noted. At the time, Dr. Berg indicated that claimant had a high risk of recurrence of back injury due to the bony changes noted on x-ray and advised him to seek a different type of job, specifically one not requiring heavy lifting (ex. A-5). After failing to keep an August 28, 1990 appointment with Dr. Berg, claimant next saw him on September 6, 1990. This visit was after claimant had started a stabilization physical therapy program with Thomas Bower and Thomas Wheatley. Dr. Berg kept claimant off work pending completion of physical therapy (ex. A-5 & 7). On October 3, 1990, claimant commenced a work hardening program with Wheatley and Bower. On October 26, 1990, claimant reported to Dr. Berg. He stated that he was not working or taking any medications. He appeared vastly improved over the past two weeks. He indicated that he was looking for a different job and had some prospects. On examination, he had some tenderness in his low back but no evidence of radiculopathy or neuromotor or vascular deficits. He had excellent range of motion. Claimant saw Mr. Bower the same day and he told Dr. Berg that claimant was capable of lifting and carrying 50 pounds without difficulty. At this time, Dr. Berg and Bower and Wheatley discharged claimant from their care (ex. A-5, page 26; and 7, page 37). Claimant saw Dr. Berg on November 26, 1990. He stated he has gotten worse since his last visit. However, he denied any reinjury. On examination of the low back there Page 3 was no tenderness or deformity present. There was no tenderness over the disc spaces. He had normal passive and active range of motion of the lumbar spine. Straight leg raising was negative. A notation indicates that he was scheduled for a CT scan of the lumbosacral spine (ex. A-5, p. 25). Claimant returned to Dr. Berg on December 6, 1990. There is no indication that a CT scan was ever performed. At this time, claimant indicated that he as moving back to California and was advised to find a job which did not require significant heavy repetitive lifting (ex. A-5, p. 24). Claimant testified that he returned to California in late 1990. He obtained a full-time job as a sales clerk in early 1991. He worked 40 hours per week and earned $350 per week. After two months, the store closed and he obtained a part-time job as a restaurant order taker and in his off hours worked as a bicycle mechanic. After one year in California, he returned to the state of Iowa in December 1991. He testified that while in California he received no medical treatment for his back condition. In January 1992 he again procured employment as a restaurant order taker and also worked as a telephone salesman. As previously stated in September 1992 he enrolled at Hawkeye Community College. While in California, claimant was evaluated by Gerald P. Keane, M.D. This evaluation was done on July 8, 1991. Based on this examination, Dr. Keane recommended diagnostic evaluation specifically a CT scan and lumbar flexion/extension x-rays (ex. A-8). Claimant testified that when he returned to Iowa, he sought, on his own, an evaluation from Arnold E. Delbridge, M.D. This occurred on November 17, 1992. X-rays of the lumbosacral spine were taken and revealed grade I spondylolisthesis of L5 on S1 and spina bifida of L5. Dr. Delbridge imposed physical limitations and restrictions (ex. A-2). Defendants referred claimant to Daniel J. McGuire, M.D., for evaluation on April 14, 1993. On examination, he appeared in no acute distress. His shoulders and pelvis were level while in a standing position. No spasms or deformities were noted. No scoliosis was noted. In fact, he had no complaints of pain during the course of examination. He was able to forward flex 70 degrees, extend 20 degrees and rotate 50 degrees. Neurologically, he was intact to sensation in the lower extremity and intact to reflexes and motors also. In a supine position, lifting his left leg up to 60 degrees caused some lower back pain but no radicular complaints. X-rays (flexion/extension views) showed no instability. The pars defect at L5 was evident. It was Dr. McGuire's assessment that claimant's atypical radicular complaints were very difficult to relate to the radiographic findings of spondylolisthesis (ex. A-2). On August 31, 1993, Dr. Berg responded to a letter from defendants' attorney. He stated that "I do concur with Dr. Page 4 McGuire's evaluation and agree that Mr. Coops [sic] back pain was a temporary aggravation of a preexisting condition, namely Grade I spondylolisthesis in the lumbar spine." He also stated that he returned claimant to work on October 26, 1990 (ex. A-5, p. 22). On September 1, 1993, Dr. McGuire indicated that the restrictions imposed by Dr. Delbridge were excessive. In any event, he felt that such restrictions were not a result of the work incident but a result of his examination and review of some x-rays. He indicated that the work incident resulted in no permanent impairment as the findings on the x-rays predated the incident (ex. A-3, pp. 13-14). On September 14, 1993, Dr. Berg again wrote to defendants' attorney and stated "...I agree that I did tell Mr. Coops that he was to return to work on October 26, 1990. On that date I did give him a written statement outlining restrictions of no lifting over 40 pounds, no pushing or pulling over 50 pounds, and no work requiring repetitive bending." (ex. A-5, p. 20). In that same letter dated September 14, 1990, Dr. Berg indicated that he was enclosing a copy of the restriction sheet that he gave to Mr. Coops. However, there is a dispute between the parties as to whether exhibit A-5, page 21 is an exact replica of what Dr. Berg gave claimant. Claimant contends that page 21 was altered and does not reflect Dr. Berg's restrictions or return to work date. Claimant then introduced a pink slip which was given to him on October 26, 1990. This slip clearly indicates that claimant was released to return to work on October 26 with restricted lifting of no more than 40 pounds and restricted pushing or pulling of no more than 50 pounds, as well as a prohibition on work requiring repetitive bending (ex. I). The pink slip appears to correlate exactly with exhibit A-5, page 21. Claimant's protestation that he was uninformed regarding a release to return to work by Dr. Berg is not credible. The record indicates that claimant was terminated by employer due to a failure to return to work after he was released to do so on October 26, 1990. Claimant testified that he called employer on Monday, October 29, 1990, inquiring as to the whereabouts of his workers' compensation check. He stated that he spoke with Sheila Sadler and was told that he was fired for abandoning his job. Sheila Sadler testified that claimant called on Friday, November 2, 1990. She stated that she spoke with him but made no mention that he was fired. On November 4, 1990, a letter was sent to claimant regarding his termination. Ms. Sadler explained that employer has a absentee policy which she developed stating that after an injured worked is released to return to work, contact must be made with employer within three days to discuss job prospects in conformity with medical restrictions. She stated that since claimant did not contact employer until November 2 he was terminated for violating the policy. Since there is no written record of claimant's communication with employer either on October 29 Page 5 or November 2, 1990, the undersigned must determine who is telling the truth in this regard. Since the record indicates that claimant told Dr. Berg on October 26, 1990, that he was looking for other work, it appears that he had no intention of ever returning to Hy-Vee. It appears that claimant's contact with employer concerned the whereabouts of his check, rather than prospective employment. Accordingly, it is determined that claimant contacted employer on October 29 rather than November 2. Claimant was referred by his attorney to Karen Kienker, M.D., for evaluation on September 17, 1993. After reviewing claimant's medical history and noting his complaints, Dr. Kienker conducted a physical examination. She concluded that claimant has a grade I spondyloysis at L5-S1, with chronic back pain and possible left L5 radiculopathy. She gave him a 15 percent impairment of the whole person and a 40-pound lifting restriction. She stated without explanation, that his current back pain is the result of his August 3, 1990 work injury (ex. A-1). After reviewing Dr. Kienker's report, Dr. McGuire reported on October 29, 1993, that the decreased range of motion which claimant exhibited on September 17, 1993, cannot be related to a work incident of August 1990 in view of his activities during the intervening three years. He again reiterated that the changes of spondylolisthesis predate the work incident and the restrictions imposed by Dr. Kienker are the result of the spondylolisthesis and not the result of the work incident. He reaffirmed his prior assessment that the work incident did not cause the spondylolisthesis (ex. A-3). CONCLUSIONS OF LAW Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of August 3, 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 expert and other Page 6 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 issue to be determined by the undersigned is whether claimant's current symptoms and physical restrictions are causally related the injury suffered on August 3, 1990. After carefully considering the total evidence in this case, the undersigned concludes that the greater weight of the evidence supports the finding that claimant's current low back pain and other symptoms are due to a condition which preexisted his work injury on August 3, 1990, namely grade I spondylolisthesis in the lumbar spine. This opinion was rendered by Dr. Berg, claimant's treating physician and Dr. McGuire, an orthopedic specialist. Contrary opinion was rendered by Dr. Kienker, an evaluating physician, on September 17, 1993, more than three years after the work injury. Dr. Berg opined on August 31, 1993, that claimant's back pain was a temporary aggravation of a preexisting condition. He gave claimant no permanent impairment rating. The physical restrictions he imposed were due to his grade I spondylolisthesis. This assessment is consistent with the opinion rendered by the spine specialist on April 14, 1993, when he stated that claimant's atypical radicular complaints are very difficult to relate to the radiographic findings of spondylolisthesis. The changes of spondylolisthesis predate claimant's work incident. Dr. McGuire emphatically states that claimant's physical restrictions are the result of the spondylolisthesis and not the result of the work incident. The opinions rendered by Dr. Berg and Dr. McGuire are entitled to more significant weight and consideration that the opinion rendered by Dr. Kienker. Claimant was paid workers' compensation benefits during the time he was off work from Hy-Vee until the time he was released to return to work by Dr. Berg. Claimant is not entitled to any other workers' compensation benefits as a result of this claim. The determination is dispositive of the entire case and further analysis is unnecessary. ORDER THEREFORE IT IS ORDERED: Claimant shall take nothing from these proceedings. The parties shall pay their own costs. Signed and filed this ____ day of December, 1993. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies to: Mr. Philip F. Miller Attorney at Law 309 Court Ave STE 200 Des Moines, Iowa 50309 Mr. E.J. Kelly Attorney at Law 2700 Grand Ave, STE 111 Des Moines, Iowa 50312 51803 Filed December 7, 1993 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SCOTT COOPS, Claimant, vs. File No. 956627 HY-VEE FOOD STORES, INC., A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 51803 Accordingly to claimant's treating physician, on August 3, 1990, he experienced back pain and temporarily aggravated a preexisting condition, namely, Grade I spondylolisthesis in the lumbar spine. Claimant's current symptoms and the disability on which he now bases his claim are not the result of his work incident but rather the result of his preexisting condition which predate the work incident. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOHN A. PENDER, : : Claimant, : : vs. : File No. 956773 : SIVYER STEEL CORP., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by John A. Pender against his former employer, Sivyer Steel Corporation, and its insurance carrier, Employers Mutual Companies, based upon an injury that occurred on November 20, 1989. Pender seeks compensation for healing period, permanent partial disability (if the same can presently be determined), and payment of medical expenses. The issues to be determined include whether Pender sustained an injury which arose out of and in the course of his employment with the employer and causation. The case was heard at Davenport, Iowa, on October 9, 1991. The evidence consists of testimony from John A. Pender, Lance Frye and Jack Armstrong. The record also contains joint exhibits A through I and claimant's exhibits 1 through 3). findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. John A. Pender is a 37-year-old man who injured his back on November 20, 1989, while lifting castings as part of the duties of his employment at Sivyer Steel Corporation. He was seen by C. R. Fesenmeyer, M.D., on that date and was taken off work. He did not return for a follow-up visit with Dr. Fesenmeyer but resumed working for the employer in approximately two days. Pender's employment with Sivyer Steel commenced in the spring of 1989. During much of 1989, he treated with Mitchell R. Mally, D.C., for problems involving his hands (joint exhibit D, pages 3-8). An office note dated November 22, 1989, makes reference to Pender having injured his back Page 2 at work. No further comment regarding Pender's back appears until an undeterminable date in 1990. The entries show some improvement and worsening and then eventual improvement of his back. At one point, reference is made to questioning whether his back was sore because of his waterbed. The last entries from 1990 do not indicate any back complaints (joint exhibit D, pages 1 and 2). A record which appears to be dated January 30, 1990, shows a history of low back pain with the condition having begun approximately one week before Thanksgiving 1989. It goes on to state "woke up with pain" and is followed by a statement which indicates that he saw the company physician on November 20, 1989. These entries could be interpreted as stating that the back pain was something which Pender awoke with on either November 20, 1989 or January 28, 1990. At the top of the page, it is indicated that the symptoms were present on November 20, 1989, left, and then returned on January 28, 1990 (joint exhibit D, page 10). The employer's notes show an ongoing course of treatment for Pender's hands and wrists. He took a voluntary layoff April 27, 1990, apparently due to his hand problems (joint exhibit F, page 14). The records show him to have had back complaints during January and February of 1990 (joint exhibit F, pages 15 and 16). The records indicate that he was released to perform regular work starting February 26, 1990. Subsequent to that date, the employer's notes do not show any back complaints (joint exhibit F, page 15). In August 1990, Pender sought treatment from William D. Reinwein, M.D. At that time, Pender gave a history of having back pain which started November 20, 1989, and had been ongoing since that date. The history indicates that he left work in April due to back symptoms (joint exhibit C, page 1). At hearing, Pender related that, when he returned to work following Thanksgiving of 1989, he resumed regular duty and worked all through December 1989 and most of January 1990 but awoke on or about January 30, 1990, with the exact same symptoms as he had experienced on November 20, 1989. He related that, following Thanksgiving of 1989, his back always bothered him on most days and that he had a sharp pain shoot down his right leg. He stated that, on almost every day, he went to the company nurse and asked for pain medications. After drawing unemployment for six months, Pender obtained a job with IBP. Prior to being hired, he was administered a physical examination which he passed (joint exhibit G, page 7). When applying, he denied having any prior problems with his back or carpal tunnel syndrome (joint exhibit G, page 4). He was terminated from that employment due to his failing to call in or show up for work (joint exhibit G, pages 14-16 and 19-21). Pender stated at hearing that his reason for leaving IBP was that he was required to pick up slabs of beef and was unable to perform that job due to his back condition. Page 3 Pender obtained employment with Seven Cities Sod Corporation and began work shortly after being hired on April 1, 1991. He remained so employed until August 12, 1991, a span of more than four months. During some of those weeks, he worked in excess of 50 hours per week (joint exhibit H, pages 3 and 4). Pender worked as a laborer and handled rolls of sod which weighed in the range of 25 pounds. During breaks he sometimes engaged in basketball games with his coemployees. His supervisors at Seven Cities Sod, Lance Frye and Jack Armstrong, did not notice any indication of Pender having back problems during the time he was in their employ. Pender is a three-time convicted felon (joint exhibit E, interrogatory number 6). Pender's credibility in this case is impaired by the conflicts between his testimony and the physicians' records, the testimony from Lance Frye and Jack Armstrong, and his three felony convictions. Dr. Fesenmeyer, who originally treated Pender, stated in a report dated August 27, 1990, that he was unable to connect Pender's back complaints which were made in August of 1990 with the November 20, 1989 injury (joint exhibit B, pages 1 and 2). Dr. Reinwein, who also saw claimant in August of 1990, felt that the back complaints voiced at that time were causally connected to the November 20, 1989 injury (joint exhibit C, pages 1 and 2). The difference in the opinions expressed by the two physicians appears to hinge upon the medical history which they were provided. Dr. Fesenmeyer had a medical history which showed a recovery from the November 20, 1989 incident, while Dr. Reinwein expressed his opinion based upon a history which included continuing complaints commencing November 20, 1989. The history given to Dr. Reinwein showed pain that continued and became radiating to the right lower extremity despite treatment by the company physician. That same history indicates that Pender received chiropractic treatments which failed to improve his symptoms and that he had not worked since April due to those symptoms. The result of this case hinges upon which medical history is to be found to be correct. The history relied upon by Dr. Reinwein is not corroborated by the treatment notes from Dr. Mally or notes from Dr. Fesenmeyer. To the contrary, the records from Dr. Fesenmeyer and Dr. Mally show claimant to have improved with treatment and resumed working. When he left Sivyer Steel on April 27, 1990, it appeared to be over a dispute concerning use of his hands. The work which Pender subsequently performed at Seven Cities Sod is totally inconsistent with him having a serious back problem during the time he performed that work. In this case, the claimant's testimony is not sufficiently strong to establish by a preponderance of the evidence that it is probable that his symptoms had their onset and continued as shown in the history relied upon by Dr. Reinwein. The claimant's testimony is contradicted by the records from Dr. Fesenmeyer and Dr. Mally. It is therefore found that the Page 4 medical history relied upon by Dr. Fesenmeyer when expressing his opinion in the August 27, 1990 report is probably correct. It is therefore found that the evidence in this case fails to show, by a preponderance of the evidence, that it is probable that whatever back condition or complaint John A. Pender might currently have resulted in any manner from the November 20, 1989 injury he sustained at Sivyer Steel Corporation. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 20, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of November 20, 1989, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). John A. Pender has proven, by a preponderance of the evidence, that he injured his back on November 20, 1989, and that the injury arose out of and in the course of his employment. The evidence shows he was disabled for a period of two days and then resumed his employment with the employer. Thereafter, he worked and was essentially asymptomatic during the month of December 1989 and most of January 1990 until waking up with back problems on or about January 30, 1990. He then obtained treatment and his back problems resolved. He resumed working on February 26, 1990, and continued working without any record of back complaint until leaving his employment due to a dispute over being assigned to perform grinding. In this case, the medical history relied upon by Dr. Reinwein is not shown to be correct. It must be remembered Page 5 that the claimant has the burden of proving probability, not mere possibility. The employer does not have a burden of disproving the claimant's allegations. It is therefore concluded that John A. Pender has failed to prove, by a preponderance of the evidence, that any permanent disability or the current condition of his back, whatever that may be, was proximately caused by the November 20, 1989 injury that he sustained while employed at Sivyer Steel Corporation. Two days is an insufficient amount of time to warrant any award of temporary total disability compensation under section 85.33. Since the injury has not been shown to have produced any permanent disability, Pender is not entitled to recover any compensation for permanent disability. Pender has likewise failed to demonstrate that his expenses incurred with Dr. Mally or Dr. Reinwein were proximately caused by the November 20, 1989 injury. It is therefore concluded that he is not entitled to recover those expenses from his employer. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law 4th Floor, Rock Island Bank Bldg. P.O. Box 4298 Rock Island, Illinois 61204-4298 Mr. Jeffrey M. Margolin Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 5-1402.30 Filed November 12, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : JOHN A. PENDER, : : Claimant, : : vs. : File No. 956773 : SIVYER STEEL CORP., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.30 Claimant was a three-time convicted felon. His testimony of continuing symptoms following an apparently minor injury was contradicted by the physicians' records and testimony regarding strenuous exertion performed subsequent to that injury. It was held that he failed to prove that any present back problem was proximately caused by that initial injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ VERNETTA LUTHI, : : Claimant, : : vs. : : File No. 956963 LAKESHORE COUNTRY CLUB, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : USF & G, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Vernetta Luthi against Lakeshore Country Club on account of an alleged injury of October 26, 1989. Vernetta seeks compensation for healing period and permanent partial disability. Defendants deny liability and in the event that they are held liable they seek to apportion the disability between the alleged injury in this case and an injury that occurred on June 15, 1988, while in the employ of this same employer. It is noted that defendants have voluntarily paid 37.5 weeks of compensation at the rate of $373.63 representing a 7.5 percent permanent partial disability on account of that 1988 injury. (exhibits 7 and 8). The case was heard at Council Bluffs, Iowa, on January 5, 1994. The evidence consists of testimony from Vernetta Luthi, Hans Luthi and Paulette Freeman. FINDINGS OF FACT The appearance and demeanor of the witnesses was observed as they testified and those observations have been considered in determining their credibility. Vernetta Luthi is a 49-year-old woman who graduated from high school in 1962. She has been employed in the food service industry since 1967. She began as a waitress and over the years received a series of promotions taking her through positions such as hostess and dining room manager for a large Holiday Inn motel in Omaha, Nebraska. She then became employed by the Omaha Press Club as a dining room hostess. She was promoted to dining room manager, then to office manager and finally was promoted to become assistant manager of the Omaha Press Club. Page 2 On March 1, 1988, Vernetta became manager of the Lakeshore Country Club in Council Bluffs, Iowa. The work of a club manager commonly involves many hours of work and considerable responsibility. Vernetta was responsible for the entire operation of the country club, other than the golf course and pro shop. Her duties included the kitchen, dining room, pool, tennis court and the grounds surrounding the clubhouse building. On June 15, 1988, Vernetta fell on a wet concrete floor in the kitchen. She entered into a course of medical care. Her predominate treating physician was Michael J. Morrison, M.D. Diagnostic testing conducted on August 18, 1988, showed no evidence of disc herniation although disc degeneration at the L4-5 level was noted. (ex. 3). Approximately two months later an MRI scan again showed degeneration at the L4-5 level with mild bulging of the disc to the left and right. Bulging at the L3-4 level was also identified. (ex. 5). Claimant's active treatment with Dr. Morrison ended on April 18, 1989. In his report Dr. Morrison states that she still had periodic pain in her lower back with radiation into her right leg. He assigned a permanent impairment of 5 to 10 percent of the whole person. (ex. 6). In September 1989 claimant saw David W. Minard, M.D., for her back complaints. He treated her with injections. (ex. 1-3). It is recognized that claimant and her husband denied seeing Dr. Minard and having injections at that time. Their testimony in that regard is found to be incorrect. Particular significance is given to the fact that the note dated November 3, 1989, indicates that she had fallen at work and was again treated with injections at the facet joint area. (ex. 1-4). It is found that Vernetta did fall and injure herself at work on October 26, 1989, as she described at hearing. The record shows that ever since that incident she has been under a continuing course of medical care for her back. (exs. 1-4 through 1-9). An MRI scan was conducted on August 27, 1990. It showed disc degeneration at the L3-4 and L4-5 levels of claimant's spine with a small focal protrusion on the left at the L3 level. When compared to the previous MRI scan of October 1988 there was little change, with perhaps some slight improvement. (ex. 17). The records show that on September 7, 1990, Douglas J. Long, M.D., claimant's principle treating neurosurgeon, suggested that she take a leave of absence from work. At that point in time Dr. Minard had recommended surgery for Vernetta but Dr. Long recommended additional conservative care. As a result of being off work, claimant's employment with Lakeshore Country Club ended. Claimant continued to treat conservatively until January 1991. On January 15, 1991, she underwent microlumbar diskectomy at the L3-4 level of her spine. A bulging disc was found. Dr. Long's notes of March 18, 1991, stated that an obvious subannular disc fragment was found during the surgery. (exs. 29-33). The notes go on to Page 3 indicate that claimant experienced a resolution of her low back and left leg pain following the surgery but that her right hip pain had returned. At the time of hearing, claimant testified that her right hip pain was pretty well resolved. It is found that the right hip pain was not a permanent part of her injury that resulted from the fall on October 26, 1989. It is debatable with regard to whether or not the right hip pain was a part of that injury though it appears that it likely was in some manner effected. The serious portion of the October 26, 1989 injury was the herniated disc on the left which was eventually treated surgically. In making this determination it is recognized that the 1988 MRI scan showed essentially the same anatomical defect as was found in 1990. It is recognized that this finding is totally inconsistent with the opinions of John C. Goldner, M.D. This finding is somewhat consistent with the opinions from Dr. Morrison found in exhibit 24 even though it also appears as though his interpretation or understanding of the disc abnormalities shown by the series of MRI scans is not necessarily accurate. This finding is consistent with the opinions of Lonnie Mercier, M.D. While Dr. Mercier might not have had each and every page of records which relate to Vernetta Luthi, there is nothing in the record of this case which indicates that the contents of any records which were not provided to him would have altered his opinions or assessment of the case. (exs. 38 and 42). In fact, Dr. Mercier's finding that claimant had reached maximum medical recuperation at the time of his May 2, 1991 report is adopted and found to be correct. When considering the testimony from John C. Goldner, M.D., a very significant question arises with regard to the level or degree of certainty that Dr. Goldner feels is necessary in order to fall within a reasonable degree of medical certainty. Of particular import is the statement found at page 37 of exhibit 61 when he states, "...there is no way that one can be certain that absent that fall of 1989, she wouldn't have had the same problem." Dr. Goldner at pages 16 through 18 of his deposition appears to indicate that chronic degenerative disc disease is the cause for the disc surgery and that therefore the surgery was not causally related to the fall of October 26, 1989. Dr. Goldner's deposition does not show that either of the attorneys ever provided him with the legal definition regarding aggravation of a preexisting condition. Dr. Long did not state that the injury caused the need for the surgery which he performed but he was likewise unwilling to say that it did not. (ex. 23-25). It must be noted that claimant was taken off work at the recommendation of Dr. Long, the authorized treating physician. Dr. Long was the physician to whom defendants directed claimant. He was not the physician of her choice. It was not unreasonable for her to follow his recommendations. It is therefore found that the injury of October 26, Page 4 1989, clearly was an aggravation of a preexisting condition. It was a substantial factor in producing the medical care which Vernetta has received, including the surgery performed on January 15, 1991. Defendants have previously paid Vernetta weekly compensation for the June 15, 1988 injury. The amount paid voluntarily, as shown in exhibits 7 and 8, does not appear to be unreasonable in view of the fact that she was able to resume her employment and continue to be employed following that earlier injury. It does not appear as though that injury had any substantial impact on Vernetta's earning capacity. It likely had a small amount commensurate with the benefits which were voluntarily paid. Since the recuperation from the surgery in this case has been completed, Vernetta's efforts to obtain employment in her customary field of work appear to have been somewhat lackluster. She is clearly under employed in her current position. It is also recognized, however, that the opportunities for employment in her customary field are somewhat limited. In the area of western Iowa and eastern Nebraska, where claimant has resided throughout her lifetime and customarily been employed throughout her lifetime, the number of clubs available to be managed is relatively few. There is likely a country club of some sort in each county seat, though many might not have a full-time club manager. The major hotels would be concentrated in the Omaha and Council Bluffs area. The business clubs with a full-time manager would likely also be limited to only a handful in the Omaha and Council Bluffs area. Summarily stated, the number of job openings for which she could apply is quite limited. When she applies there is likely considerable competition from individuals who are currently employed in such positions as well as individuals who are seeking a higher level of responsibility. A number of applicants are likely from geographical areas other than the Omaha-Council Bluffs region. It is not unreasonable for Vernetta to restrict her job search to the Omaha-Council Bluffs region since, prior to this injury, she was consistently able to be gainfully employed in that region in her chosen field of work. The evidence from Dave Weakland wherein he states the general manager of a club can pretty much do as they want regarding physical exertion of the job is found to be correct. (ex. 55, page 15). While it is likely true that Vernetta engaged in some fairly strenuous physical activity at the Lakeshore Country Club it is also found to be true that there is nothing which would prohibit her from limiting her physical activities if she held such a position. Her physical activity restrictions should not constitute a large impediment to obtaining employment or performing in her customary field of work. A major portion for her loss of earnings appears to be the limited number of job openings in that field. The fact that this injury caused her to lose the job at Lakeshore Country Club is an important factor. Page 5 The fact that she is not currently employed detracts from her employability when seeking other jobs. It is noted that as far as Vernetta's previous jobs of relatively high responsibility she was always employed at the time she was hired into another position. It is found that she has experienced a 25 percent reduction in earning capacity as a result of the injury sustained in this case. This is in addition to the extent of permanent disability caused by the June 15, 1988 injury. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). Aggravation of a preexisting condition is one manner of sustaining a compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Though the allegation of injury arising out of and in the course of employment was denied by defendants, there is no contrary evidence in the record. The claimant appears credible. Her testimony regarding falling at work is well corroborated by the medical records. Accordingly, it is determined that Vernetta Luthi has carried the burden of proving by a preponderance of the evidence that she sustained an injury which arose out of and in the course of her employment on October 26, 1989, as she alleges. That injury was an aggravation of a preexisting condition. 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 Page 6 (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). This is a case in which the expert testimony clearly indicates a possibility that the surgery was related to the fall, particularly if it is considered in light of the fact that physicians often express opinions of causation in medical terminology, rather than in legal terminology. The principle difference is that in medical terminology the concept of aggravation of a preexisting condition as being the cause is not uniformly held. The fact that claimant may have eventually needed this surgery absent the fall is not material to the issue of whether defendants are liable. An aggravation is compensable if it accelerates the underlying condition. In this case it is clear that the disc problem has its underlying basis in the degenerative disc disease condition which afflicts claimant. The greater likelihood or probability is that the fall of October 26, 1989, was a substantial factor in producing a need for the surgery which was performed by Dr. Long. When the actual facts of what occurred in this case are considered in light of the expert testimony the overall picture is one that shows it is probable that the fall was a substantial factor in producing the need for the surgery. Claimant has therefore carried her burden of proof of showing that the fall was a proximate cause of the surgery and its results. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 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). In accordance with the assessment from Dr. Mercier it is determined that Vernetta's healing period ended May 2, 1991. This entitles her to 30 4/7 weeks of healing period compensation. Industrial disability or loss of earning capacity is a Page 7 concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Likewise, an employer's refusal to give any sort of work may justify an award. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). When all the material factors of industrial disability are considered, it is determined that Vernetta Luthi has experienced a 25 percent permanent partial disability as a result of the injury sustained in this case. This entitles her to receive 125 weeks of permanent partial disability compensation payable commencing May 3, 1991. Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing how much of the disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. Apportionment is not appropriate in this case for at least two reasons. First, there is no evidence in the record of this case to support a finding that claimant had any preexisting loss of earning capacity prior to the time she commenced employment at Lakeshore Country Club. There is some indication that a small amount of loss resulted from Page 8 the June 15, 1988 injury, but any such amount was indeed small since claimant continued in the same job and appears to have experienced an increase in her actual earnings as evidenced by the difference in the rate of compensation for the 1988 injury and the rate of compensation for this injury. Second, the preexisting disability must not have been caused by the same employer. Clearly, any preexisting disability from the June 15, 1988 injury, which was not adequately compensated, cannot be the basis for apportionment since it resulted from an injury with this same employer. Finally, the finding of the extent of industrial disability in this case is based solely upon the disability caused by the October 26, 1989 injury. The baseline from which that disability was evaluated is the claimant's condition, as it existed, immediately before the October 26, 1989 injury. Using that date as a baseline takes into account whatever preexisting losses or preexisting disabilities may have existed. Accordingly, defendants' request for further apportionment beyond that which is inherent in the award is denied. ORDER IT IS THEREFORE ORDERED that defendants pay Vernetta Luthi thirty and four-sevenths (30 4/7) weeks of compensation for healing period at the stipulated rate of four hundred fifty-one and 41/100 dollars ($451.41) per week payable commencing October 1, 1990. It is further ordered that defendants pay Vernetta Luthi one hundred twenty-five (125) weeks of compensation for permanent partial disability at the stipulated rate of four hundred fifty-one and 41/100 dollars ($451.41) per week payable commencing May 3, 1991. Defendants are entitled to credit for the one hundred thirty point five (130.5) weeks of benefits paid. Any past due accrued amounts shall be paid to claimant in a lump sum together with interest pursuant to section 85.30. It is further ordered that defendants pay the costs of this proceeding pursuant to rule 343 IAC 4.33. Page 9 Signed and filed this __________ day of March, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Richard Crotty Attorney at Law 311 Metropolitan Federal Bank Bldg Council Bluffs, Iowa 51503 Mr. Lyle W. Ditmars Attorney at Law 233 Pearl St PO Box 1078 Council Bluffs, Iowa 51502-1078 1402.30 1402.40 1802 1803 1806 2206 Filed March 9, 1994 Micheal G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ VERNETTA LUTHI, Claimant, vs. File No. 956963 LAKESHORE COUNTRY CLUB, A R B I T R A T I O N Employer, D E C I S I O N and USF & G, Insurance Carrier, Defendants. ------------------------------------------------------------ 1402.30 1402.40 1802 1803 1806 2206 Claimant fell at work. Her injury was found to be an aggravation of a preexisting degenerative condition. The course of medical care led her to surgery. The medical evidence was somewhat equivocal although it appeared that at least one of the physicians implied an improper standard when considering the issue of causation. Claimant, a club manager was awarded 25 percent permanent partial disability based primarily upon her difficulty in obtaining re-employment.