BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROBERT GLAWE, File No. 966393 Claimant, A R B I T R A T I O N vs. D E C I S I O N IBP, INC., Employer, Self-Insured, Defendant. _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Robert Glawe, against his former self-insured employer, IBP, Inc., defendant. Claimant filed his petition on January 24, 1991. In his petition he requested workers' compensation benefits for a work-related injury allegedly occurring on July 21, 1990. In the prehearing conference report, which was jointly filed by the parties, the attorneys for the litigants indicated they would be ready for a hearing on the matter after April 1, 1993. Originally the hearing was set for August 19, 1993. However, on April 16, 1993, claimant requested a continuance of the hearing date. The ruling on the continuance was denied by a deputy industrial commissioner. A joint request for a continuance was subsequently filed by the parties on June 3, 1993. The ruling was then granted by the same deputy industrial commissioner. The case was reassigned for December 20, 1994. The hearing was held at the Pine Crest Building in Waterloo, Iowa on the aforementioned date. The record consists of the testimony of claimant. The record also consists of the testimony of claimant's spouse, Kathleen Glawe. Finally, the record is comprised of the following exhibits: claimant's exhibits 1-10 and defendant's exhibits A-K. At the time of the writing of this decision, there is no first report of injury in the administrative file. The defendant is ordered to file a first report of injury within 20 days of the filing of this decision. Failure to do so may result in the imposition of sanctions. ISSUES The parties stipulated claimant sustained a work-related injury which occurred on July 21, 1990. The parties also stipulated that prior to the hearing on this matter defendant paid claimant 146.857 weeks of benefits at the stipulated weekly benefit rate of $211.67 per week. The issues to be determined are: 1) whether claimant's work injury is a cause of temporary or permanent disability; 2) whether claimant is entitled to any healing period or permanent disability benefits; 3) whether claimant is entitled to any medical benefits pursuant to section 85.27 of the Iowa Code; and 4) whether claimant tendered notice pursuant to section 85.23 of the Iowa Code with respect to any allegations of neck or back injuries. FINDINGS OF FACT AND CONCLUSIONS OF LAW The deputy, having heard the testimony and considered all of the evidence, makes the following findings of fact and conclusions of law: The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding; "on the party who would suffer loss if the issue were not established." Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987). Claimant is 56-years-old. At the time of his work injury claimant was 52. He is the married father of three adult children. He is a 1957 Manchester High School graduate. He has no education beyond the high school level but he did serve in the United States Marine Corps. He was honorably discharged. Claimant has a long history of stable work. For many years he worked as an assistant manager and later the general manager of a restaurant chain which was known for its buffet menu. His duties varied since he assisted his employees whenever they needed help or supervision. Claimant left that employment in 1985. After 1985, claimant held several jobs which required special skills, such as printing. For two years he was self- employed as a salesperson. He sold fishing gear at various trade shows. He left after two years, as his business was not profitable. In May of 1990, claimant commenced employment with the present defendant. He was hired to work in the maintenance department as a maintenance worker for the upper kill floor. His duties included maintaining equipment such as the large split chain saw. It weighed 125 pounds and was designed to split a hog into two parts. Throughout a work shift, claimant was constantly lifting the saw. On the date of the work injury, claimant lifted the split saw and he experienced severe pain near both shoulders, across his back and on both sides. He completed the shift but he did not discuss his condition with any supervisor at the plant. Eventually claimant went to the nurse's station, per the direction of the safety manager. After conservative measures, claimant, on his own, sought chiropractic manipulation from D. A. Widen, D.C. (Exhibit 2). Still claimant did not improve. Eventually, claimant was sent to Jitu D. Kothari, M.D., a local orthopedic surgeon. Dr. Kothari became the authorized treating physician. Claimant complained of difficulties of both shoulders, neck and back (Ex. B-2). The surgeon ordered pain medication and physical therapy. His diagnosis was "impingement syndrome of the left shoulder" (Ex. 9-14). Dr. Kothari causally related claimant's condition to the work injury (Ex. 9-23). The surgeon testified there was nothing in claimant's medical history which would indicate his shoulder problems were anything but work related (Ex. 9-23). 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). Despite Dr. Kothari's conservative treatment, claimant did not improve to the satisfaction of his surgeon. Approximately one year after his initial appointment, Dr. Kothari performed an arthroscopic evaluation of the left shoulder and then an arthroscopic decompression of the subacromial space (Ex. 9-15). Following the surgery, claimant engaged in physical therapy. On December 22, 1992, Dr. Kothari evaluated and examined claimant for a permanent impairment. The surgeon opined: He underwent arthroscopic decompression of the subacromial space with partial acromioplasty on 3-19- 92. He also had a small flap tear of the labrum which was also excised. Following his surgery, he has improved. He had intensive and extended physical therapy. However, more recently, while in physical therapy, he had increased discomfort in his left shoulder, and he almost passed out, so the physical therapy at this time was discontinued. At present, he has the following job restriction. No overhead work and no overhead reaching with the left shoulder. He should also avoid doing any heavy manual work, such as lifting more than 10-15 pounds with his left arm. Pushing and pulling with the left arm is not recommended. His disability rating evaluation is as follows, based on range of motion of the left shoulder, according to the Guide to the Evaluation of Permanent Impairment by the American Medical Association. Motion Degree % Forward elevation 135 3 Abduction 110 3 External rotation 35 2 Internal rotation normal 0 Extension 30 1 So, this patient has a total of 9% permanent impairment and loss of physical function of the left upper extremity on account of restricted range of motion of the left shoulder. He also continues to have night pain. He also has pain at the end of the day. He requires pain pills or over the counter analgesics for pain control. He has difficulty sleeping at night. In my opinion, he has 6% additional permanent impairment and loss of physical function of the left upper extremity on account of the residual pain in the left shoulder. So, he has a total of 15% permanent impairment and loss of physical function of the left upper extremity on account of his work related injury to the left shoulder. (Ex. B-10) Claimant continued to verbalize complaints he had with his left shoulder. Dr. Kothari referred claimant to James E. Crouse, M.D., another orthopedic surgeon. Dr. Crouse examined claimant on March 22, 1993. The diagnosis was "persistent left shoulder pain" (Ex. 8-14). Dr. Crouse causally related claimant's condition to the work injury (Ex. 3). On June 3, 1993, Dr. Crouse performed an acromioplasty on claimant's left shoulder as well as an excision of the distal clavicle. The post diagnosis was "Impingement syndrome, left shoulder with AC joint arthritis of left shoulder" (Ex. 2-1). Subsequent to the surgery, claimant encountered problems with his urinary tract. He developed urinary retention. Michael O. Welton, M.D., a urologist treated claimant for acute urinary retention (Ex. 6-1). Dr. Welton performed a transurethral resection of the prostate (Ex. 6-1). According to Dr. Welton's opinion, claimant's surgical procedure was precipitated by the second surgical procedure on his left shoulder (Ex. 6-1). Dr. Crouse performed another arthroscopic surgical procedure involving claimant's left shoulder. On February 8, 1994, claimant underwent a partial synovectomy of the left shoulder and debridement of the scarring subacromial space (Ex. 3). The deposition testimony of Dr. Crouse included the surgeon's opinions regarding permanency and restrictions. Dr. Crouse opined: Q. Doctor, did you -- or strike that. Doctor, have you reached an opinion regarding his functional impairment under the AMA Guidelines? A. Yes. Q. And would you tell us what those opinions are? A. I believe that Mr. Glawe has a 16% impairment of his right upper extremity, which would be a 10% impairment of the body as a whole. And based on history, his persistent complaints and his x-rays changes through the thoracic spine, a 5% impairment of the upper back. Q. The 10% body as a whole disability is related to his shoulder, is that correct? A. Yes. Q. And the 5% body as a whole disability is related to the upper back symptoms he describes, is that correct? A. Yes. Q. And together you have arrived at a 15% body as a whole disability, is that correct? A. Combining those two, yes. Q. In your opinion is this disability a permanent disability? A. Yes. Q. Have you reached any opinions regarding what, if any, work restrictions Mr. Glawe has? A. Mr. Glawe is going to be restricted to light work. He cannot do heavy lifting, or bending stooping and lifting. He cannot do repetitive pushing and pulling. He is not going to be able to work with his arms at shoulder level or above. I would recommend a 10 to 15 pound restriction for his lifting. Again, noting that he is not going to be able to work at shoulder level and above with his arms. Q. The 10 to 15 pound lifting restriction would be lifting that would be below shoulder level, is that correct? A. Yes. Q. You're recommending that he not do any lifting or work at shoulder level or above, is that correct? A. That's correct. Q. Okay. And that is based on the problems that he's had with the shoulder joint and back, is that correct? A. That's correct. (Ex. 8-38 to 40) Claimant has proven to the satisfaction of this deputy industrial commissioner that he has a permanent condition to his left shoulder and as well as to the upper back and neck. Defendant maintains it had no notice of the back and neck complaints. However, the argument has little merit. From the onset, claimant has voiced complaints not only with both shoulders but also with his neck and back. Defendant has had notice of all complaints which claimant has alleged are related to the current work injury. Claimant's condition is a permanent injury to the body as a whole. Claimant maintains he is entitled to an industrial disability as a result of his work injury. An industrial disability affects more than a functional impairment. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. In the case before the undersigned, claimant has a functional impairment rating in the area of 15 percent of the body as a whole. Medical evidence supports the impairment ratings which were provided by the treating surgeons. The same treating surgeons also imposed severe restrictions on claimant with respect to the duties he can perform in the work place. Claimant is precluded from overhead work. His lifting restrictions prohibit claimant from applying for numerous jobs in the packing industry. Defendant has no position to offer claimant. Claimant is an older worker and he will have difficulties obtaining suitable employment at the wage rate he received prior to the work injury. Because of claimant's age, retraining is unlikely. He has not been offered rehabilitation. He has been off work for many years. Re-entry into the labor market will be difficult, if not impossible. Perhaps he can find some employment in the restaurant business. However, positions in the restaurant industry are at the low end of the wage scale. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant is entitled to a 75 percent permanent partial disability. He is entitled to 375 weeks of permanent partial disability benefits at the corrected rate of $216.29 per week and commencing from June 9, 1994. The next issue to address is the issue of healing period benefits. 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). Claimant has been in the healing period from the date of the work injury, July 21, 1990 through June 8, 1994. The June 8, 1994 date is the designated date when claimant obtained maximum medical improvement (Ex. 8-40). This is a period of 202.714 weeks. Claimant is to be paid at the stipulated rate of $216.29 per week. The final issue to address is the issue of medical benefits. Section 85.27 of the Iowa Code governs the payment of medical bills. Claimant is requesting the payment of $1690.88 in medical bills. All of the requested medical bills are related to claimant's work injury. However, the chiropractic bill of Dr. Wilden is unauthorized treatment. It is disallowed. Defendant is not required to pay for the treatments provided by Dr. Widen. Defendant is liable for the remaining $420.72 in medical bills. ORDER THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant three hundred seventy-five (375) weeks of permanent partial disability benefits at the corrected rate of two hundred sixteen and 29/l00 dollars ($216.29) per week. Defendant shall also pay unto claimant two hundred two point seven one four (202.714) weeks of healing period benefits at the corrected rate of two hundred sixteen and 29/l00 dollars ($216.29) per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended. Defendant is liable for medical expenses in the sum of four hundred twenty and 72/l00 dollars ($420.72). Defendant is ordered to file a first report of injury within twenty (20) days of the filing of this decision. Failure to do so may result in the imposition of sanctions. Costs are taxed to defendant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of June, 1995. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Stamp Mr. H. Daniel Holm, Jr. Attorneys at Law 3324 Kimball Ave PO Box 2696 Waterloo IA 50704-2696 Mr. Paul T. Kirchner Attorney at Law PO Box 515 Dept. #41 Dakota City NE 68731 5-1800; 5-1803 Filed June 16, 1995 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT GLAWE, File No. 966393 Claimant, A R B I T R A T I O N vs. D E C I S I O N IBP, INC., Employer, Self-Insured, Defendant. ____________________________________________________________ 5-1800; 5-1803 Claimant is entitled to 375 weeks of permanent partial disability benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MICHAEL E. DOWELL, : : Claimant, : File No. 966524 : vs. : A R B I T R A T I O N : J. I. CASE COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Michael E. Dowell, claimant, against J. I. Case Company, self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on August 6, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on March 16, 1992, in Burlington, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying was Daniel Snyder. The documentary evidence identified in the record consists of joint exhibits 1 through 9. issues Pursuant to the prehearing report and order dated March 16, 1992, the parties have presented the following issues for resolution: . Whether claimant sustained an injury on August 6, 1990, which arose out of and in the course of employment with employer; . Whether the alleged injury is a cause of temporary and permanent disability; and, . Whether claimant is entitled to medical bills pursuant to Iowa Code section 85.27. 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 is 36 years old and went to work for employer in 1974 as a machine operator. He was laid off for about two and one-half years until February 1990, when he returned as a press form operator. In this capacity, he did piece work in which he handled between 400 and 1000 parts of steel a night. This work required heavy lifting, pushing, Page 2 pulling, and repetitive bilateral upper extremity use. In 1985, claimant experienced numbness and tingling in his hands, however, this resolved during his two and one-half-year layoff. Upon return to work in February 1990, he noticed a progressive enlargement of the tissues in his wrist and arm. He also experienced pain and tingling in his hands. In August 1990, he reported these problems to the company doctor, J. J. Kivlahan, M.D. Dr. Kivlahan advised him to see a specialist (exhibit 3). Claimant saw Michael W. Hendricks, M.D., an orthopedic surgeon, on August 6, 1990, for evaluation of bilateral hand pain and a mass in the distal right forearm. Nerve conduction studies were obtained on August 20, 1990, and these showed an increase in the findings of carpal tunnel syndrome. On October 18, 1990, claimant underwent a carpal tunnel release on the right with excision of an accessory palmaris longus tendon. Claimant was last treated by Dr. Hendricks on December 14, 1990. He was released to return to work on December 16, 1990, without limitations (exs. 1-2 & 9). On November 11, 1991, Dr. Hendricks reported that claimant obtained full and complete recovery from his right carpal tunnel surgery and had no residual symptoms. Claimant testified that he did not return for left carpal tunnel syndrome surgery because his symptoms had resolved. Claimant returned to work and performed his usual job from December 14, 1990, until three weeks prior to the hearing when he exercised his contract by-out right with defendant. No accommodations were made at work and claimant was able to perform his job without limitations or restrictions. Nevertheless, on November 11, 1991, without reexamining claimant, Dr. Hendricks gave him a permanent partial impairment rating as a result of his unoperated left carpal tunnel syndrome. However, he imposed no physical restrictions or limitations. Presumably, this rating was based on the result of nerve conduction studies obtained on August 20, 1990. Claimant testified that his left arm problems had resolved. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 6, 1990, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Page 3 Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. The Supreme Court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the Court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers' Compensation Act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. The injury to the human body must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The Almquist Court further observed that while a personal injury does not include an occupational disease under the Workers' Compensation Act, yet an injury to the health may be a personal injury. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. The Supreme Court has also recognized that a cumulative injury may occur over a period of time. The injury in such cases occurs when, because of pain or physical disability, the claimant is compelled to leave work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). Moreover, claimant's last employer becomes liable for the cumulative injury, even if the incidents that lead to the ultimate injury do not occur while a claimant is employed with the last employer. McKeever, 379 N.W.2d at 376; See also Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 434-35 (Iowa 1984). The evidence indicates that claimant was initially evaluated for numbness and tingling in his hand in 1985. However, the problem was not terribly bothersome at that time, despite the positive electrical findings on nerve conduction velocity tests of early carpal tunnel syndrome. No surgical procedure was performed. This problem persisted until he was laid off from employer's work for a number of years. After returning to work in the early part of 1990, he began to notice a return of the numbness and tingling and a progressive enlargement of the tissues at the volar aspect of the wrist. Repeat nerve conduction studies on August 20, 1990, showed an increase in the findings of carpal tunnel syndrome. Dr. Hendricks indicated that there was a definite relationship between claimant's symptoms and his work activity (exhibit 2). Page 4 On October 18, 1990, claimant underwent surgery. According to claimant, he returned to work on December 14, 1990, with no residual symptoms. Defendant has presented no evidence disputing Dr. Hendricks' assessment regarding the etiology of claimant's impairment. Claimant was off work from November 2, 1990, through December 13, 1990, for treatment of his work-related injury. Pursuant to Iowa Code section 85.34, claimant is entitled to healing period benefits from November 2, 1990, through December 13, 1990. Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. Claimant has the burden of proof. Dr. Hendricks reported on November 11, 1991, that, to the best of his knowledge, claimant's recovery from surgery has been full and complete without residual symptoms. Claimant did not return to Dr. Hendricks after surgery on October 18, 1990, and no reevaluation was performed regarding his left carpal tunnel syndrome. Therefore, Dr. Page 5 Hendricks' permanent partial impairment rating as to the left upper extremity is without merit. Claimant did not seek any additional medical treatment subsequent to surgery. He admitted at the hearing that his left arm problems had resolved and he was fully recovered from his right carpal tunnel syndrome. Therefore, claimant has not shown by a preponderance of the evidence that he has sustained a permanent impairment as a result of his bilateral carpal tunnel syndrome. The next issue to be determined is whether claimant is entitled to medical expenses under Iowa Code section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27.; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Constr. Specialists, Inc., File No. 850096 (App. 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983). When a designated physician refers a patient to another physician, that physician acts as the defendant employer's agent. Permission for the referral from defendants is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Decn. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker does not include the right to determine how an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assmann v. Blue Star Foods, Inc., File No. 866389 (Declaratory Ruling, May 18, 1988). Defendant cannot deny that an injury arose out of and in the course of employment on one hand and seek to guide Page 6 medical treatment on the other. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). Therefore, claimant is entitled to be reimbursed $161.20 for a medical deductible he paid out-of-pocket. order THEREFORE, IT IS ORDERED: That defendant pay to claimant six (6) weeks of healing period benefits at the rate of four hundred sixty-four and 50/100 dollars ($464.50) commencing November 2, 1990, through December 13, 1990. That defendant pay to claimant one hundred sixty-one and 20/100 dollars ($161.20) in out-of-pocket medical deductible expenses. That defendant receive credit under Iowa Code section 85.38(2) for previous payments made under a nonoccupational group plan. That defendant receive credit for any benefits previously paid. That defendant pay accrued amounts in lump sum. That defendant pay all costs pursuant to rule 343 IAC 4.33. That defendant pay interest pursuant to Iowa Code section 85.30. That defendant file claim activity reports as required by the agency. Signed and filed this ____ day of March, 1992. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies to: Mr. James Hoffman Attorney at Law Middle Road PO BOX 1087 Keokuk, Iowa 52632-1087 Mr. William J. Cahill Attorney at Law 200 Jefferson St. Burlington, Iowa 52601 5-1802; 5-1803; 5-2501 Filed March 31, 1992 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : MICHAEL E. DOWELL, : : Claimant, : File No. 966524 : vs. : A R B I T R A T I O N : J. I. CASE COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : __________________________________________________________ 5-1802 Claimant proved by a preponderance of the evidence that he received a work-related injury arising out of and in the course of employment with employer. Claimant was diagnosed with bilateral carpal tunnel syndrome and underwent surgery on the right wrist only. Claimant's treating surgeon related claimant's injury to his work as a laborer and machine operator with employer. Claimant was awarded healing period benefits from November 2, 1990 through December 13, 1990. 5-1803 Claimant's surgeon opined that claimant had no residual symptoms from his right carpal tunnel release but that he sustained 5 percent permanent partial disability due to left carpal tunnel syndrome although surgery was not performed on this extremity. Nevertheless, claimant was given no restrictions or limitations and claimant testified he was asymptomatic. Therefore, no permanency established. 5-2501 Claimant was awarded previously paid out-of-pocket medical deductible in the amount of $161.20 because his injury was determined to be causally connected to his work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ARTHUR OWEN, : : Claimant, : File No. 966529 : vs. : A P P E A L : DEERE AND COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. ISSUES Those portions of the proposed agency decision pertaining to issues not raised on appeal are adopted as a part of this appeal decision. The issues raised on appeal are: 1. Whether the deputy industrial commissioner erred by holding that the employer is not required to specially plead the defenses of sec. 85B.8 of the Code. 2. Whether the deputy industrial commissioner erred in not finding the date of claimant's hearing loss injury was October 8, 1989. 3. Whether the deputy industrial commissioner erred in holding that a person placed on long term disability status pursuant to the Deere & Company collective bargaining agreement did not constitute layoff status pursuant to sec. 85B.8 of the Code. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed April 20, 1992 are adopted as final agency action. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed April 20, 1992 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. Page 2 ***** [Defendants were not required to plead Iowa Code section 85B.8 as an affirmative defense. That section defines an element of claimant's cause of action, and claimant bears the burden of proof to show that he is entitled to benefits. Iowa Code section 85B.8 states as follows:] A claim for occupational hearing loss due to excessive noise levels may be filed six months after separation from the employment in which the employee was exposed to excessive noise levels. The date of the injury shall be the date of occurrence of any one of the following events: 1. Transfer from excessive noise level employment by an employer. 2. Retirement. 3. Termination of the employer-employee relationship. The date of injury for a layoff which continues for a period longer than one year shall be six months after the date of the layoff. However, the date of the injury for any loss of hearing incurred prior to January 1, 1981 shall not be earlier than the occurrence of any one of the above events. ***** [Claimant's present status under the employer's long-term disability plan is clearly not a layoff. Similarly, claimant has not been transferred from the noise level employment by the employer. Claimant has not retired. Claimant, under the long-term disability plan, is still technically an employee of the employer, even though the evidence shows that claimant's disability is such that he is not likely to ever be recalled to active work. Thus, claimant does not meet any of the enumerated criteria for an "occurrence" under Iowa Code 85B.8, and in addition claimant has not been laid off. The deputy industrial commissioner thus concluded that claimant's action was not ripe and the case was dismissed. However, this narrow reading of 85B.8 leads to the conclusion that claimant, as long as he is on long-term disability, cannot bring an action for his alleged hearing loss. The record shows that claimant's long-term disability eligibility could last until the year 2007. To hold that 85B.8 requires claimant to wait 17 years after his last exposure to the noise levels before bringing an action for hearing loss benefits is an unreasonable interpretation of the statute and would not reflect the intention of the legislature. This is especially egregious Page 3 when it is considered that claimant's long-term disability status was due to unrelated back injuries and not his hearing loss. The Iowa Workers' Compensation Law has been held to be "for the benefit of the working man and should be, within reason, liberally construed." Barton v. Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W.2d 660, 662 (1961). Also see Irish v. McCreary Saw Mill, 175 N.W.2d 374 (Iowa 1970). The Iowa Supreme Court has recently reaffirmed this by saying "We construe the Act liberally in favor of the employee; we resolve all doubts in favor of the employee." Hanson v. Reichelt, Iowa Supreme Court, February 21, 1990 [citing Teel v. McCord, 394 N.W.2d 405, 406-407 (Iowa 1986)]. Also see Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991). The primary purpose of the workers' compensation statute is to benefit workers and workers' dependents insofar as the statute permits and than the statute is to be interpreted liberally with a view toward that objective. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (1981) These rules of statutory construction have been applied to interpreting Iowa Code section 85B.8 John Deere Dubuque Works v. Weyant, 442 N.W.2d 101 (Iowa 1989). There, the Iowa Supreme Court stated: When interpreting a statute, our ultimate goal is to ascertain and give effect to the intention of the legislature. See Kohrt v. Yetter, 344 N.W.2d 245, 246 (Iowa 1984). We seek a reasonable interpretation that will best effect the purpose of the statute and avoid an absurd result. Harden v. State, 434 N.W.2d 881, 884 (Iowa 1989) We consider all portions of the statute together, without attributing undue importance to any single or isolated portion. Id. When two interpretations of a limitations statute are possible, the one giving the longer period to a litigant seeking relief is to be preferred and applied. Meyers, 410 N.W.2d at 257. Although the deputy duly applied 85B.8 according to its terms, it appears that the intent of the section is contained in the first paragraph of the section, which allows an employee to bring an action for hearing loss "six months after separation from the employment in which the employee was exposed to excessive noise levels." The section then sets forth four alternatives that may constitute a separation from excessive noise level employment. Although going on long-term disability status is not enumerated in the section, such status under the facts of this case nevertheless represents a separation from excessive noise level employment. Claimant may still technically be an employee of John Deere, but the practical reality is that he has been separated from the employment that exposed him to excessive noise. Alternatively, claimant's placement on long-term disability with little possibility of recall, as the record indicates here, essentially constitutes a termination of the employer-employee relationship as set forth in Iowa Code 85B.8(3). Although claimant still enjoys some of the benefits of the Page 4 employer-employee relationship for other purposes, such as accumulating seniority, again the practical result is that, for purposes of his hearing loss exposure, the relationship ended when he left work to go on long-term disability. Under either analysis, claimant is held to have separated from the employment in which he was exposed to excessive noise levels on the date when claimant left his excessive noise level work and went on long-term disability. This holding is limited to the facts of this case.] WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: As the deputy industrial commissioner who heard the evidence in the case did not reach the other issues because of the ruling on the 85B.8 issue, it is appropriate to remand this case for further proceedings by the deputy on any other issues presented. That defendant shall pay the costs of the appeal including the transcription of the hearing. Claimant shall pay all other costs. Signed and filed this ____ day of May, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert D. Fulton Attorney at Law Sixth Floor First National Building P O Box 2634 Waterloo, Iowa 50704 Mr. John W. Rathert Attorney at Law 620 Lafayette Street P O Box 178 Waterloo, Iowa 50704 2208 Filed May 26, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ARTHUR OWEN, : : Claimant, : File No. 966529 : vs. : A P P E A L : DEERE AND COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ 2208 Hearing loss - Claimant was on long-term disability status from John Deere with little possibility of recall. Under the union contract, claimant, while on long-term disability, was still technically an employee. Claimant had apparently chosen long-term disability rather than a total disability pension because of a slightly higher monthly income and continuing accumulation of seniority. Claimant would remain eligible for long-term disability until the year 2007. On appeal, reversed holding that claimant's action for hearing loss was not ripe because he did not fit any of the enumerated events in 85B.8 (transfer from excessive noise level, retirement, termination of employer-employee relationship, or layoff). Instead, it was held that the statute was to be liberally construed, and requiring claimant to wait perhaps 17 years to bring his action for hearing loss was not legislative intent. Preliminary language of 85B.8 speaks of bringing an action six months "after separation from the employment in which the employee was exposed to excessive noise levels." Held that claimant's going on long-term disability constituted either a termination of the employer-employee relationship under 85B.8 or, alternatively, met the over-arching requirement of 85B.8 of separation from employment, and claimant's action for hearing loss benefits was ripe. Holding limited to facts of this case. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ARTHUR OWEN, : : Claimant, : File No. 966529 : vs. : : A R B I T R A T I O N DEERE AND COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ statement of the case This case came on for hearing on April 9, 1992, at Waterloo, Iowa. The record in the proceedings consist of the testimony of the claimant; claimant's wife, Patricia Owen; Wilbur Frahm; and, Jim Stewart; and, joint exhibits 1 through 12. ISSUES The issues for resolution are: 1. Whether claimant incurred an occupational hearing loss injury which arose out of and in the course of his employment on April 8, 1989; 2. The extent of permanent disability and claimant's entitlement to disability benefits, if any, and the beginning dates of any benefits; 3. Whether claimant's alleged occupational hearing loss is causally connected to claimant's alleged injury on April 8, 1989; 4. Whether claimant is entitled to a hearing aid and the cost under 85B.12 findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 53-year-old who left school after the seventh grade. Claimant related his work history prior to beginning work with defendant employer on March 27, 1972, which is claimant's seniority date for purposes of any layoff. He last worked for defendant employer April 7, 1989. Claimant went into detail as to his various job duties, location of the departments, the machines and the extent and period and nature of the noise at work (Joint Exhibit 5). Page 2 Claimant testified he has had basically no exposure to excessive noise outside of his employment with John Deere. Claimant said he is currently on long-term disability because of three back operations and foot surgery. His last foot surgery was six weeks ago. Claimant went off work originally because of his back problem. These medical problems are not an issue. Claimant is before this agency on an alleged hearing loss. Claimant's current long-term disability was triggered under the union contract after claimant was off work and on weekly indemnity (WI) for one year. Claimant is also receiving social security benefits. He said his doctor put him under weight restrictions. Claimant said he received a letter six months ago indicating social security is reviewing his case. He has heard nothing from them since. Claimant related a discussion nine months ago with Arnold E. Delbridge, M.D., as to going back to work. Claimant doesn't believe he can. Claimant said C.R. Buck, M.D., the company's in-house doctor, said he had something to say about that. Claimant said no John Deere doctor said he can return to work and claimant sees no way he can return due to his legs, feet and back. Claimant indicated he just found out yesterday that there are other benefits to which he may be entitled other than long-term disability. Claimant is currently receiving $684 per month long-term disability. Claimant indicated that John Deere recommended claimant file for long-term disability. He contends he never filed for a total permanent disability pension because he didn't know about it until yesterday. Claimant was later recalled and indicated he didn't know about these other benefits until the day of the hearing. Claimant indicated on cross-examination that he blames Department 67 for his hearing loss, but when transferred to Department 57 on August 28, 1983, he had realized his hearing loss was permanent. Claimant said this was confirmed by a specialist in August of 1984 (Jt. Ex. 3). Claimant indicated he wore protectors on his ears if he needed it but never wore it in Department 67 until it was too late and damage was already done. Claimant said if he then wore the ear protectors, he would have the ringing in his head so he would place the protectors on the edge of his ears so it would appear he was wearing them. Claimant feels he has lost some hearing since April 7, 1989. His last test at work was February 1989. Claimant agreed if he has lost hearing since that day, it would be after he left work. Claimant acknowledged he knew of his hearing loss and that he felt the work caused it. Wilbur Frahm, a retiree from John Deere in September Page 3 1987, worked with claimant in Department 67 and then later in Department 57. He corroborated claimant's testimony as to the noisy conditions in the department and that claimant's fellow employees would play jokes on the claimant by banging tools on his welding booth. He related claimant would storm out of his booth and give people heck for hitting his work booth. Patricia Owen, claimant's wife, testified she first met claimant in February 1982 and married him on August 7, 1982. She said claimant complained of noise at work and that his head hurt and his ears were ringing. She said she didn't notice claimant's hearing problem when she first dated claimant but that his hearing gradually became worse through the fall of 1982 and then leveled off. Jim Stewart, president of Local 838 John Deere Union since 1989, has worked for John Deere 28 years and he is familiar with the union contract. One of the books covers layoffs, job security and wages and the second book covers pension, health benefits, etc. Mr. Stewart explained that if an employee is disabled, he or she receives weekly indemnity (WI) and if disabled for over one year, then an employee receives long-term disability (LTD) after the first year. It is necessary for one to be totally disabled to get LTD, but he said disability is determined by the outside doctor. He stated seniority minus one year determines the weekly indemnity. He said claimant's seniority date is 1972 and at the time of the alleged hearing loss injury, claimant had 16 years (17 years minus one). Therefore, claimant could remain on LTD until the year 2007. Mr. Stewart indicated the defendant has the right to have claimant come in for an examination if there is a question as to claimant's disability entitlement. He said the company doctor will contact the outside doctor who had determined claimant's disability. If both doctors agree that claimant can't do any work, the employee can be put on a total and permanent disability pension. If there is a disagreement as to claimant's disability, there are provisions for a third party doctor to make a final binding determination. Mr. Stewart said it is more beneficial to be on LTD than on disability pension ($684 per month versus $600 per month). Mr. Stewart related that if claimant was laid off, he would have 17 years recall right; in other words, to the year 2007. But, unlike when claimant is on LTD, claimant would not be adding any seniority rights. Claimant now has 20 years seniority because he has accumulated three years while on LTD. Claimant would not have accumulated these added three years if he were on a total permanent disability pension, retired or on layoff. Mr. Stewart emphasized the total permanent disability pension is a retirement mode as to benefits effect. Once claimant retires, he loses his seniority for recall purposes. Page 4 Mr. Stewart emphasized that the determination of disability is based on medical evidence. It is obvious the whims of the defendant are not controlling in this area. The claimant seems to infer that when Dr. Buck allegedly made a statement that he has a say as to disability, it would indicate the company is intentionally trying to keep claimant on LTD rather than allowing a layoff. As we will see later, claimant is taking the position in this case that he was, in fact, laid off so he could come under the provisions of 85B.8. Mr. Stewart said LTD contemplates a possibility of return to work which would be mandated if claimant's medical condition warranted it. He emphasized a layoff is not the same as retirement, and LTD and a layoff are in two different sections of the agreement. Only as to keeping or maintaining seniority (not accumulating) are they identical. Mr. Stewart was asked whether any job would be available to the claimant considering claimant's restriction and being off work for three years. He said no as defendant no longer has available clerk or sit down jobs or light duty. He also emphasized one now needs seventeen years of John Deere seniority for a chance to be recalled and even with claimant's three year cushion (20 years minus 17), claimant's chances are slim to none. He did indicate again claimant is not in a layoff but in a disability program and could be eligible to come back to work and his seniority continues to accumulate while on LTD but not under a layoff. In both instances, claimant maintains his seniority of 17 years as of 1989. Mr. Stewart did not believe claimant would be called back to work in his present condition. The undersigned is not going to set out, review or make a finding as to claimant's medical evidence or whether claimant, in fact, has a hearing loss or whether there is a causal connection because there is a question as to whether an injury arose out of and in the course of claimant's employment and connected with this issue, whether an occurrence under 85B.8 has taken place. Iowa Code section 85B.8 sets out the requirements necessary to determine the date of an occupational hearing loss injury which is determined upon determining the occurrence of one of three events. Claimant does not contend that he was transferred from an excessive noise level by the employer. If that were the condition, there would appear to be a possible statute of limitation problem. The evidence is clear there was not a termination of the employer-employee relationship. The evidence is clear claimant did not retire even though claimant contends he just found out at the date of hearing or possibly the day before that he could apply for benefits other than what he actually applied for. Claimant seems to indicate he was told by the company only about applying for LTD. The undersigned doesn't believe the company has the obligation to hold the hand of this employee and read the contract Page 5 section by section to him. Claimant could have asked the president of the union, who he had as a witness, as to his understanding of the contract if he had a question and as to his options, if applicable. Whether claimant likes receiving $684 per month versus $600, if he retired, plus being able to accumulate seniority years by staying on LTD was not elaborated on by the claimant, but the undersigned finds his "excuse" to be not credible. There was considerable discussion and argument, most off the record, as to whether this action was brought too early, etc., and this may have generated claimant's current posturing. Claimant has April 8, 1989, as the injury date and on the prehearing report claimant tried to insert additionally the date of October 8, 1989. This was obviously done to help in the posturing of claimant's attempt to possibly fit the statute. Claimant contends he comes under the provisions of 85B.8 which provides that the date of injury for a layoff that continues for a period longer than one year shall be six months after the layoff. Assuming for argument purposes that there was a layoff (claimant's last day of work was April 7, 1989) claimant no longer worked beginning April 8, 1990. Therefore, six months is October 8, 1989. Defendant vigorously resisted this new date of October 8, 1989 being put in the prehearing report contending it is an amendment and prejudicial at this late date. The undersigned agreed with defendant and the undersigned believes it would be highly prejudicial since this is obviously the only way claimant could possibly save (assuming there is a layoff) his current cause of action. The undersigned proceeded on an April 8, 1989 injury date. As to whether there was a layoff, the undersigned believes if there was any doubt, which from the evidence the undersigned had no doubt, the union president laid that question to rest. The undersigned finds that claimant was not laid off and had been participating in the benefits of LTD which gave claimant $684 per month and the right to accumulate additional seniority years and recall rights to the year 2007. It is immaterial whether claimant knew what his contract provided or whether he read the contract. Claimant's attorney contends that if there is not a layoff, then the employer can keep claimant on LTD until the year 2007 and never be laid off or called back or get pension benefits. This is an unacceptable argument. There is nothing preventing claimant from reading the contract and exercising his rights if he thinks he can get a better deal, one of which is taking $600 per month in lieu of $684 if he would be considered as a total disability pensioner. The undersigned finds claimant was not laid off. The undersigned finds that claimant has not shown that he incurred a hearing loss that arose out of and in the course of his employment on April 8, 1989. The undersigned further finds that claimant's petition was brought too early and that the provisions of 85B.8, date of occurrence, were not complied with and, in fact, there has not been an injury or hearing loss injury that occurred on April 8, 1989 or October 8, 1989. The undersigned finds that there is no need to discuss Page 6 the other issues as they are moot in light of this decision. analysis and conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received a hearing loss on April 8, 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. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Iowa Code section 85B.8 provides: A claim for occupational hearing loss due to excessive noise levels may be filed six months after separation from the employment in which the employee was exposed to excessive noise levels. The date of the injury shall be the date of occurrence of any one of the following events: 1. Transfer from excessive noise level employment by an employer. 2. Retirement. 3. Termination of the employer-employee relationship. The date of injury for a layoff which continues for a period longer than one year shall be six months after the date of the layoff. However, the date of the injury for any loss of hearing incurred prior to January 1, 1981 shall not be earlier than the occurrence of any one of the above events. Page 7 It is further concluded that: Claimant did not incur an occupational hearing loss injury that arose out of and in the course of his employment on April 8, 1989. Claimant was not laid off from his employment on April 8, 1989, nor was claimant on a layoff which continued for a period longer than one year. Claimant was not transferred from an excessive noise level employment by the employer, nor was claimant retired, nor was claimant terminated by the employer, thereby terminating the employer-employee relationship. order THEREFORE, it is ordered: That claimant takes nothing from these proceedings. That claimant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert D Fulton Attorney at Law 6th Flr 1st Natl Bldg P O Box 2634 Waterloo IA 50704 Mr John W Rathert Attorney at Law 620 Lafayette St P O Box 178 Waterloo IA 50704 1100; 2208; 2200 Filed April 20, 1992 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : ARTHUR OWEN, : : Claimant, : File No. 966529 : vs. : : A R B I T R A T I O N DEERE AND COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ 1100 Found claimant did not incur an occupational hearing loss that arose out of and in the course of his employment on April 8, 1989. 2208 Found claimant was not laid off from his employment on April 8, 1989, nor was claimant on a layoff which continued for a period longer than one year, nor was claimant retired, nor transferred from an excessive noise level. 2208 Since claimant's filing did not come within 85B.8, date of occurrence, claimant took nothing and other issues were considered moot. 2200 Did not allow claimant's attorney to insert in prehearing report an additional injury of October 8, 1989, in order to posture his case for hopeful recovery based on "layoff" under 85B.8. Deputy found claimant was not on a layoff anyway but was on long-term disability receiving $684 per month and accumulating seniority versus $600 per month and accumulating no seniority. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARK A. WOODMAN, : : Claimant, : File No. 966531 : vs. : A R B I T R A T I O N : A-OK YELLOW CAB CO., INC., : D E C I S I O N : Employer, : Uninsured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Mark A. Woodman against his former employer, A-OK Yellow Cab Company, Inc., based upon an alleged injury of December 21, 1988. The primary issue to be determined is whether the claimant sustained an injury which arose out of and in the course of employment. Claimant seeks weekly compensation for the period commencing December 21, 1988, and running through January 16, 1989. Claimant also seeks payment of medical expenses totalling $1,532.70. The case was heard at Dubuque, Iowa, on November 19, 1991. The record consists of testimony from Mark A. Woodman, Debra Woodman, Ron Conrad, Olga Oltmanns and Merlin Morett. The record also contains exhibits 1 through 7. 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. Mark A. Woodman is a 40-year-old married man who lives at Dubuque, Iowa. On December 21, 1988, he was employed as a cab driver for A-OK Yellow Cab Company, Inc., a business owned by Ron Conrad and Conrad's wife. According to Woodman, he felt pain in his back at approximately 9:00 p.m. when he picked up a passenger by the name of Jason in the 3000 block of Pennsylvania Avenue. He then dropped the passenger off at a location referred to as Gomer's Tap. The passenger was an overweight young man who is disabled by cerebral palsy and is restricted to a wheelchair. According to Woodman, he felt pain in his back while transferring the passenger from the wheelchair into the cab, again while putting the wheelchair in the back of the cab in preparation to transport the passenger to Gomer's Tap and then continued to experience pain throughout the Page 2 rest of his work shift. According to Woodman, he reported his pain to the dispatcher but was asked to continue his shift long enough to transport patrons home from the local taverns when they closed. Woodman did so. Upon completing his work, he reported to the Finley Hospital emergency room (exhibit 1). The emergency services record indicates that he had marked straightening of the lumbar lordotic curve but full flexion, extension and rotation of the lumbar spine, normal reflexes and a normal straight leg raising test (exhibit 1, page 2). X-rays were interpreted as being suggestive of possible muscle spasm (exhibit 1, page 3). Woodman sought treatment from orthopaedic surgeon R. Scott Cairns, M.D. At the initial examination, Dr. Cairns noted claimant as having moderate paraspinal tightness and slightly diminished sensation in the left leg. The straight leg raising test was again normal (exhibit 3, page 1). A multitude of diagnostic tests were conducted but did not show any notable abnormality. Woodman was placed in physical therapy. At the initial evaluation, the physical therapist noted that Woodman's range of motion of his back was limited in all directions and straight leg raising tests were shown as abnormal bilaterally (exhibit 4, page 2). After completing physical therapy, Woodman was released by Dr. Cairns to resume work effective January 19, 1989, with a restriction against lifting more than 30 pounds. At the time of a follow-up visit on January 30, Woodman appeared markedly improved. Woodman has not received any further treatment for his back since January 30, 1989 (exhibit 3, page 1). Woodman's testimony at hearing was also to the effect that he had never had any prior problem with his low back. He stated that, while he was off work, he was unable to engage in any type of strenuous activity and specifically did not engage in shoveling snow. According to Olga Oltmanns, a dispatcher and 18-year employee of this employer, Woodman reported early for work on December 21, 1988, and made a statement which indicated that he had a backache. According to Oltmanns, Woodman did not tell her what had caused the backache. She did not notice anything unusual about his appearance or activities. Oltmanns also related that, on a prior occasion, Woodman had requested being allowed to take off work during the Christmas holiday season. Oltmanns testified that she referred him on to the business owner, Ron Conrad. Ron Conrad, co-owner of A-OK Yellow Cab Company, Inc., testified that approximately two days prior to December 21, 1988, Woodman had asked to get off work over the holidays but that the request was denied. According to business records for December 21, 1988, Conrad stated that Woodman had checked in for work at 3:02 p.m. and checked out at 2:35 Page 3 a.m. Conrad also related that Woodman had not picked up any passenger on Pennsylvania Avenue on December 21. He acknowledged that on that date, Woodman had picked up a passenger at 2138 Central and transported that passenger to Gomer's Tap and then later picked up a passenger at Gomer's Tap and returned the passenger to 3276 Pennsylvania. That trip was the last one Woodman made during that work shift. Rebuttal witness Merlin Morett testified that on approximately January 2 or 3, 1989, he observed Woodman shoveling snow at Woodman's home. Morett stated that Woodman had a shovel and that no one else was present. Woodman specifically denied performing any shoveling but stated that he did supervise shoveling when the teenaged children in his home performed it. According to Woodman and his wife, Debra, the teenaged children were responsible for all snow shoveling without regard to any injury. Debra Woodman testified that Mark had not had any lower back problems prior to December 21, 1988, when he phoned her, reported that he had been injured and stated he was seeking medical treatment. According to Debra, his voice sounded as if he were in pain. She also related that, when he returned from seeking treatment, he was unable to sleep. According to Debra, he got no relief from his pain until he entered the physical therapy program. This case presents conflicting and controverted evidence. Page 3 of joint exhibit 1 indicates that on December 31, 1988, the employer had notified Dr. Cairns that claimant had previously complained of back problems and was simply seeking additional time off work. The only evidence in the case of any previous low back problems comes from Oltmanns. There is no corroboration in this record for her statement that Woodman reported having a backache on December 21, 1988, at the time when he reported for work. The evidence in the record shows no indication of any prior low back problems. There is no corroboration for Morett's testimony that claimant was shoveling snow in early January. The employer's evidence that Woodman had sought time off work is provided by both Conrad and Oltmanns, while Woodman stated that he did not seek time off work and had no reason to seek time off work over the holidays since he was not scheduled to work on the holidays. Woodman's testimony that he picked up the disabled passenger and delivered that passenger to Gomer's Tap and then returned the passenger to an address on Pennsylvania is corroborated by the employer's records. While there is a discrepancy regarding where the pick up originally was made, it appears highly probable that Woodman did in fact pick up such a passenger as he related at hearing. The testimony of his back pain is corroborated by the examinations performed at the emergency room, by Dr. Cairns and by the x-ray report which showed straightening of Page 4 the lordotic curve suggestive of muscle spasm. Any claimant would be expected to know the place and circumstances of his injury. It would also be expected, however, that if he were fabricating, he would have known that the employer had a record of his trips and would have designed a scenario which was consistent with the employer's records. It is noted throughout the medical records that the history of injury given is consistent. The only known inaccuracy is the reference to the patient being elderly which appears only in the emergency room records. The greater weight of the evidence supports the claimant's claim. It is found that he did injure his back on December 21, 1988, while transferring the disabled patient from the wheelchair into the cab in the manner which he described at hearing. It is a quite plausible scenario for producing an injury of the type which is claimed in this case, namely a temporary back strain or sprain. The findings in the medical reports are consistent with that type of injury. The course of treatment and recovery is likewise consistent with such an injury. There is no evidence in the record to support the employer's position of a preexisting condition beyond the testimony from Oltmanns. The only dispute regarding the medical expenses the claimant seeks to recover is the underlying issue of the employer's liability for the alleged work injury. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 21, 1988, 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 injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Community School Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 Page 5 (1967). In this case, though there is conflicting evidence, the record clearly documents that the claimant was diagnosed as suffering from a back problem when he sought medical treatment shortly after leaving his work shift. The history given, the nature of the injury and course of recovery are all consistent with the scenario of injury which the claimant described. It is therefore determined that Mark A. Woodman has proven, by a preponderance of the evidence, that he injured his low back in an incident which arose out of and in the course of his employment on December 21, 1988. The injury was not claimed to have produced any permanent disability and none appears apparent from the record. The claimant's entitlement to weekly compensation is therefore limited to temporary total disability under Code section 85.33. Since he completed his work shift on December 21, 1988, the first day of disability is December 22, 1988. The disability was terminated by his return to work on January 17, 1989. The duration of the period of disability is therefore 3 5/7 weeks. Woodman is therefore entitled to recover weekly compensation from the employer in the stipulated amount of $103.18 payable commencing December 22, 1988. Where the disability does not commence on the date that the injury occurred, it is not proper to pay temporary total disability compensation for the date when full wages were paid. The only dispute surrounding the medical expenses is the dispute regarding liability. All the expenses claimed are supported by documents in the record. It is therefore concluded that Woodman is entitled to recover the expenses of treatment and mileage as itemized in exhibit 5 in the total amount of $1,532.70. order IT IS THEREFORE ORDERED that A-OK Yellow Cab Company, Inc., pay Mark A. Woodman three and five-sevenths (3 5/7) weeks of compensation for temporary total disability at the stipulated rate of one hundred three and 18/100 dollars ($103.18) per week payable commencing December 22, 1988. The entire amount thereof is past due and shall be paid to claimant in a lump sum together with interest computed from the date each weekly payment came due until the date of actual payment at the rate of ten percent (10%) per annum pursuant to Code section 85.30. IT IS FURTHER ORDERED that A-OK Yellow Cab Company, Inc., pay Mark A. Woodman the sum of one thousand five hundred thirty-two and 70/100 dollars ($1,532.70) as reimbursement for his medical expenses with Finley Hospital, R. Scott Cairns, M.D., Dubuque Radiological Associates, Cathedral Square Physical Therapy and mileage, all pursuant to Code section 85.27. Page 6 IT IS FURTHER ORDERED that A-OK Yellow Cab Company, Inc., pay the costs of this proceeding pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that A-OK Yellow Cab Company, Inc., file a first report of injury within ten (10) days from the date of this decision in accordance with Iowa Code sections 86.11 and 86.12. IT IS FURTHER ORDERED that A-OK Yellow Cab Company, Inc., file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies To: Mr. Francis J. Lange Attorney at Law 1114 Main Street P.O. Box 1811 Dubuque, Iowa 52004-1811 Mr. James H. Reynolds Attorney at Law 1045 Main Street Dubuque, Iowa 52001 5-1402.30; 5-1402.40 Filed November 27, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MARK A. WOODMAN, : : Claimant, : File No. 966531 : vs. : A R B I T R A T I O N : A-OK YELLOW CAB CO., INC.,: D E C I S I O N : Employer, : Uninsured, : Defendant. : ____________________________________________________________ 5-1402.30; 5-1402.40 Claimant prevailed over conflicting evidence regarding whether he sustained injury arising out of and in the course of employment. Employer ordered to file first report of injury. 5-1803; 5-1100; 5-1108 Filed December 6, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : DENNIS R. WITTE, : : Claimant, : File Nos. 966533 : 966534 vs. : 952950 : LENNOX INDUSTRIES, 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. : ___________________________________________________________ 5-1803 Claimant recovered nothing further on his September 17, 1989 work injury (no permanency found). 5-1803 Claimant recovered nothing further on his July 27, 1989 work injury (no permanency found). 5-1100; 5-1108 Claimant's April 9, 1990 alleged injury did not arise out of and in the course of his employment and no causal connection found. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : GLENDA MAGREEVY, : : Claimant, : : vs. : : File No. 966538 SERVICEMASTER OF LEE COUNTY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : MILWAUKEE INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant, Glenda Magreevy, seeks benefits under the Iowa Workers' Compensation Act upon her petition in arbitration against defendant employer, Servicemaster of Lee County, and its insurance carrier, Milwaukee Insurance Company. This cause was scheduled for hearing in Burlington, Iowa on September 30, 1992. At 3:03 p.m., on September 29, the undersigned received a dismissal by facsimile transmission at his motel in Burlington. Thereafter, the undersigned engaged in two telephone conversations with claimant's attorney, Michael J. McCarthy. Under Iowa Rule of Civil Procedure 215, any voluntary dismissal within ten days of the date of trial requires consent of the agency. Mr. McCarthy was advised that such consent would not be granted ex parte. Mr. McCarthy thereupon advised that claimant did not intend to appear at the scheduled hearing, intended to present no evidence whatsoever, and would accept an adjudication on the merits. Accordingly, no hearing was actually held. This decision is based upon the pleadings, motions and intermediate rulings contained in the file under Iowa Code section 17A.12(6). ISSUES Issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of employment on September 22, 1989; 2. Whether the injury caused temporary or permanent disability; 3. The extent of each, if any; 4. Whether defendants are entitled to credit under Page 2 Iowa Code section 85.38(2); 5. Whether the claim is barred by failure to give notice under Iowa Code section 85.23. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Claimant's petition asserts that she sustained an injury to the right ear causing tinnitus by reason of a "blast of hot air" from a fork truck exhaust. Defendants deny that claimant sustained an injury arising out of and in the course of employment. As previously indicated, no evidence in this record supports the claim. CONCLUSIONS OF LAW 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). 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). No evidence exists in this record supporting claimant's burden of proof. Accordingly, she has failed to prove an injury arising out of and in the course of employment. Other issues are thereby rendered moot. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing. Costs are assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of October, 1992. Page 3 ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Michael J McCarthy Attorney at Law 701 Kahl Building Davenport Iowa 52801 Mr William J Cahill Attorney at Law 200 Jefferson Street PO Box 1105 Burlington Iowa 52601 1402.30; 2901 Filed October 2, 1992 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GLENDA MAGREEVY, Claimant, vs. File No. 966538 SERVICEMASTER OF LEE COUNTY, A R B I T R A T I O N Employer, D E C I S I O N and MILWAUKEE INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 1402.30; 2901 Claimant attempted to dismiss her action the day before hearing. The hearing deputy advised her attorney that the dismissal would not be approved ex parte. Claimant's attorney advised that claimant would not appear for hearing, would present no evidence, and would accept an adjudication on the merits. As claimant failed to meet her burden of proof on the record made (all pleadings, motions and intermediate rulings under Iowa Code section 17A.12(6)) defendants prevailed. 1801 Filed April 13, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : CHARLES R. MEEKS, : : Claimant, : File Nos. 876894, 944018 : 930535, 966544 vs. : 966545, 966546 : 966547 FIRESTONE TIRE & RUBBER CO., : : Employer, : A R B I T R A T I O N : and : D E C I S I O N : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1801 Claimant filed seven petitions alleging repeated injuries to his right shoulder and left hip resulting from heavy labor as a tire builder at Firestone. He was 58 years old at the time of the hearing, and although he suffered from arthritis, he had not sought treatment for the same, and his condition had never interfered with his work activities. Claimant awarded a total of 68% industrial disability based on loss of earning capacity and all other factors. 1801 Filed April 13, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : CHARLES R. MEEKS, : : Claimant, : File Nos. 876894, 944018 : 930535, 966544 vs. : 966545, 966546 : 966547 FIRESTONE TIRE & RUBBER CO., : : Employer, : A R B I T R A T I O N : and : D E C I S I O N : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1801 Claimant filed seven petitions alleging repeated injuries to his right shoulder and left hip resulting from heavy labor as a tire builder at Firestone. He was 58 years old at the time of the hearing, and although he suffered from arthritis, he had not sought treatment for the same, and his condition had never interfered with his work activities. Claimant awarded a total of 68% industrial disability based on loss of earning capacity and all other factors. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JOYCE HEISER, : : Claimant, : : vs. : : File No. 966572 HON INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Joyce Heiser against her employer, Hon Industries, and The Travelers Insurance Company, based upon an injury that occurred on August 11, 1987. Claimant seeks additional compensation for permanent partial disability. Both parties seek to recover costs. The primary issue to be determined is the extent of permanent partial disability which was proximately caused by the August 11, 1987 injury. The case was heard at Davenport, Iowa, on March 23, 1992. The evidence consists of testimony from Joyce Heiser, Dorsey Lane and Amy Newbanks Fuller. The record also contains joint exhibits 1 through 14. It was noted at hearing that the correct rate of compensation is $247.40 but that benefits had been paid at the rate $238.62 and defendants agreed to immediately pay the difference without further order. Defendants had paid 35 weeks of compensation for permanent partial disability prior to hearing. 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. Joyce Heiser is a 48-year-old woman who dropped out of high school but subsequently obtained a GED. Prior to commencing her current employment, she worked in the office of a grain elevator which was managed by her husband. She weighed and tested grain. She issued checks in payment for grain which was delivered to the elevator. She worked as a supervisor at a Hardee's restaurant for approximately nine months. Joyce commenced her employment with Hon Industries in Page 2 1981. Most of the time she has worked assembling and packing drawers. The most weight she would typically handle would be approximately 20 pounds. The weight she most frequently handled was approximately five pounds. Her work is performed standing and permits her to move about somewhat (Jt. Ex. 14A-E). Joyce earned approximately $6 per hour when she started, approximately $9 per hour when she was injured and at time of hearing was earning slightly over $12 per hour. Pay increases were normal plant increases and were not attributable to any promotion or change in job duties. Joyce injured her back on August 11, 1987, when she tried to pull a pallet which was on the floor but it stuck. She underwent an extended period of conservative treatment which included steroid injections, prescription medications and physical therapy. She eventually entered into and successfully completed a low back pain rehabilitation program through the University of Iowa Hospitals and Clinics (Jt. Ex. 8). She resumed full-time work. Her only work restriction is that she avoid heavy lifting. Her current job does not involve heavy lifting. She has one of the lighter jobs in the plant. It would be difficult for her to transfer to some other job which would not be heavier than her current job. Joyce has essentially constant pain regardless of whether she works or does not work. It worsens at times, sometimes without any identifiable cause. She takes aspirin for pain but avoids prescription medications. She has been able to perform her job despite her pain. She works overtime on occasion. She normally exceeds the established rate for her job and receives incentive pay. Her performance evaluations have been favorable. Occasionally, Joyce will miss a few days of work when her pain is most severe. She has changed her off-work activities due to her symptoms. Claimant was rated as having a 7 percent permanent impairment of the whole body by her orthopedic surgeon. Her pain rehabilitation program at the University of Iowa was considered successful (Jt. Ex. G-S). She has been evaluated by Neurosurgeon Robert W. Milas, M.D., who diagnosed her as having degenerative disc disease at the L4-S1 levels of her spine. He rated her as having a 19 percent permanent impairment. Hon Industries is a nonunion employer. Claimant has no guarantee of continued employment. According to Amy Newbanks Fuller, of the personnel department, there are no plans to change the current status regarding the company's continued operation and claimant's continued employment. Hon Industries is generally regarded as a successful Iowa business. There is no known basis for expecting that claimant will not have continued employment with Hon Industries. On the other hand, the only thing that is certain about employers and businesses is that the future is uncertain. Most individuals change employers during their Page 3 employment life. Corporations are taken over and their assets sold piecemeal. Plants relocate to areas which offer freedom from work place safety restrictions, freedom from pollution controls, lower hourly labor costs and lower taxes. Hon Industries is well regarded as a responsible corporate citizen and it is unlikely that it will close its plants or otherwise take action to force Joyce Heiser back into the competitive labor market where her physical limitations and activities would limit her access to jobs and have an actual adverse impact upon her level of earnings. CONCLUSIONS OF LAW The primary issue in this case is the extent of permanent partial disability. However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. This is a case in which the claimant has sustained a significant injury which has resulted in permanent impairment and a reduction in her physical capabilities. Normally, those factors indicate a reduction in earning capacity. On the other hand, she has experienced no reduction of actual earnings and this normally would strongly indicate that there has been no reduction of earning capacity. In this case, the claimant's age, formal Page 4 education and work experiences are such that if she were forced to find other employment it would be expected that she would experience a marked reduction in her actual earnings. Hon Industries has insulated her from that harsh reality. While she may no longer be capable of performing as many different jobs with Hon Industries as she was capable of performing prior to her injury, the record also reflects that she had not attempted to enter into those other jobs prior to her injury. Industrial disability cannot be precisely measured in the manner that impairment ratings are measured. Despite the precise methodology that is used in determining impairment ratings, there is often a wide yet reasonable disparity between ratings from different physicians, as exists in this case. Nevertheless, an assessment of industrial disability must be made. When all material factors of industrial disability are considered, it is determined that Joyce Heiser experienced a 10 percent permanent partial disability as a result of the August 11, 1987 injury. Under the provisions of Iowa Code section 85.34(2)(u), she is entitled to recover 50 weeks of benefits. Since the employer has previously paid 35 weeks based upon a 7 percent impairment rating, an amount which in this case provides a close approximation, there are 15 weeks which remain unpaid. Since claimant has prevailed in this claim, she is entitled to recover costs. The costs which she seeks are not well described other than for the filing fee charged by this agency in the amount of $65 and the report and evaluation from Dr. Milas in the amount of $150. The four other charges which total $60.80 are deemed by the undersigned to be copy fees, an item which is not recoverable as a cost. It is therefore concluded that pursuant to rule 343 IAC 4.33 and Iowa Code section 622.72, the total amount of costs assessed against the employer to be paid to claimant is $215. ORDER IT IS THEREFORE ORDERED that defendants pay Joyce Heiser fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of $247.40 per week payable commencing on the stipulated date of October 4, 1988. Defendants are entitled to credit for the thirty-five (35) weeks of permanent partial disability compensation benefits previously paid and shall pay the remaining fifteen (15) weeks in a lump sum together with interest, pursuant to Iowa Code section 85.30, computed from the date each weekly payment became due until the date of actual payment. IT IS FURTHER ORDERED that defendants pay the costs of this action, including reimbursement to claimant in the amount of two hundred fifteen dollars ($215.00). IT IS FURTHER ORDERED that defendants file a claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of August, 1992. Page 5 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr John H Westensee Attorney at Law 1705 2nd Ave Rock Island IL 61201 Ms Vicki L Seeck Attorney at Law 600 Union Arcade Bldg Davenport IA 52801 5-1803 Filed August 7, 1992 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JOYCE HEISER, : : Claimant, : : vs. : : File No. 966572 HON INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Forty-eight-year-old employee with degenerative disc disease who had been able to return to same job and work to the employer's satisfaction awarded 10% permanent partial disability.