Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT C FRIEDERICH, : : Claimant, : : vs. : :File Nos. 967391 & 988003 BEN FRANKLIN, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LUMBERMAN'S MUTUAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This decision concerns two proceedings in arbitration brought by Robert C. Friederich against his former employer, Ben Franklin, and its insurance carrier based upon alleged injuries of October 24 and October 25, 1990. The primary issues to be determined are whether Friederich's angina and possible heart attack constitute an injury which arose out of and in the course of employment. Additional issues include proximate cause, extent of healing period and extent of permanent disability. Claimant seeks to recover for the expenses of an independent medical examination under the provisions of section 85.39. Claimant also seeks to recover expenses of medical care under the provisions of section 85.27. The employer's liability for the injury is the only issue associated with the medical expense claim. The case was heard at Storm Lake, Iowa, on November 4, 1992. The record consists of testimony from Robert C. Friederich, Jean Wolf, Karen VanGuilder, Ellen McClain, Michael Bahr, Keith Noah, and Bob Thomson. The record also contains claimant's exhibits A through N and defendants' exhibits 1 through 17. 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: Robert C. Friederich is a 56-year-old divorced man who spent most of his life in department and variety stores such as Woolworth's and Ben Franklin. He started as a stock boy and became a general manager. From 1976 through 1984 he owned and operated his own Ben Franklin store. He was forced to sell the store due to a divorce. He sold insurance for approximately two years and then obtained Page 2 employment as manager of the Ben Franklin store in Spirit Lake, Iowa. According to Robert, he worked 12 to 14 hours per day at the start and enjoyed the work. As time passed he cut back on his hours. When the Wal Mart store opened in Spirit Lake, he felt that the Ben Franklin store would eventually close. It did close in January 1991. Robert had expected since approximately May 1990 that his store would close. In October of 1990 he met with the owners of the store, Robert Thomson and Keith Noah. They had advised him that they had in fact decided to close the store and that they were going to employ a liquidator to handle the closeout sales. They expressed a concern about merchandise going out the back door rather than the front. Claimant interpreted the statement as meaning that they questioned his honesty. He became very upset. After that lunch meeting he experienced tightness and pains in his chest. Other employees noticed that he did not appear well and suggested he go home. Claimant did go home early that day. He came to work the following day. During the course of the day he helped move display tables from the mall area back into the store itself. They were estimated to weigh in the range of 60 or 70 pounds and were carried by two people. While doing so, claimant became short of breath and again had chest pains. Robert stated at hearing that he continued to move the tables for approximately 20 minutes after the pain started because he felt compelled to keep going until the job was done. On the next day he came to work in the morning. He left early in order to visit his brother who lived at LeMars, Iowa. His brother also operated a variety store. While returning home from LeMars he started getting chest pains. He was taken to Dickinson County Hospital and then transferred to the hospital at Sioux Falls, South Dakota, where he remained for eight days and underwent coronary bypass surgery. Claimant has not returned to work at Ben Franklin since the heart surgery. Claimant had heart problems in 1983. At that time it was diagnosed as angina and had come on while shoveling snow. During much of the time subsequent to 1983 he had been on medication for coronary artery disease. Claimant, since undergoing the bypass surgery, appears to have stabilized. He complains of being tired and that he fatigues easily. His doctors have advised him to avoid activities such as shoveling snow, pushing cars and other strenuous exertion. Claimant had a close relationship with a store employee named Ellen McClain. Ellen opened a store which competed to some extent with the Ben Franklin store. Robert Thomson directed claimant to terminate her employment. He experienced stress because he did not desire to terminate her employment. Claimant considered the stress during the meeting on October 24, 1990, to exceed that of his nonemployment life. Page 3 He described his nonemployment life as very easy and simple. He hired others to perform his yard work and snow removal. Claimant also stated that the physical exertion associated with moving the tables was more than what he would engage in outside of his employment. He stated that he had no stress in October 1990 other than that associated with his employment. Claimant also stated that the stresses of the employment in October 1990 were greater than the normal stress which he encountered as a store manager. At the present time claimant is a one-third partner with Robert Thomson and Keith Noah in four different Subway sandwich stores. He is also a partner with Ellen McClain in two stores which are open only during the summer in the vacation area near Spirit Lake. In his last full year at Ben Franklin he earned $22,000. In 1991 he earned $59,000 in profits from the Subway stores. Since the 1990 heart attack claimant has cut back greatly in his golfing and fishing activities. He has cut back in recreational dancing. There is a great deal of medical evidence from medical sources in the record of this case. Upon reviewing all the evidence it is found that Robert clearly did have preexisting coronary artery disease. It is further found that Robert had stress associated with his employment in October 1990 and that the stress was probably a precipitating factor in causing him to have the mild heart attack which he had on October 1990 and which lead to the coronary bypass surgery. It is found that the physical exertion of moving the tables from the mall to the store was not an exertion of greater magnitude than normal nonemployment life. It was an exertion of greater magnitude than this claimant's normal nonemployment life but it was not an exertion of greater magnitude than the normal nonemployment life of a normal individual. The record fails to show any physical exertion associated with this claimant's employment which was greater than the physical exertion commonly found in the normal nonemployment life of a normal individual. Such normal nonemployment life of a normal individual includes activities such as shoveling snow, mowing lawns, hiking, swimming, golfing, playing tennis, going up and down stairs while carrying articles, and similar activities. In this case it was well known and expected that the Ben Franklin store would be forced out of business by the opening of a Wal Mart store. Claimant had known that for months prior to October 1990. It was not surprising. It was not due to any shortcomings on claimant's part and he was not blamed by Thomson and Noah for the store's unprofitability. Claimant might have taken the statements concerning hiring a liquidator to close the store as some indication of lack of confidence in his integrity, but it was not necessarily any such indication. The directive for him to terminate the employment of Ellen McClain likely caused him some stress, yet it would not have been expected Page 4 to be an extremely stressful situation. Normal nonemployment life often involves disputes, disagreements, rudeness, insults, and other harsh treatment. Normal employment typically involves supervisor's who are often less than kind and nurturing. Normal nonemployment life and normal employment involves being required to do acts which an individual might find objectionable or disagreeable. In summary, it is apparent that the discussion with Noah and Thomson on October 24, 1990, was stressful, the prospect of closing the store was stressful and being required to terminate the employment of Ellen McClain was stressful. The stress is not shown to be of greater magnitude than the stresses of normal nonemployment life of a normal person. conclusions of law Iowa claimants with preexisting circulatory or heart conditions are permitted, upon proper medical proof, to recover workers' compensation benefits where the employment contributes something substantial to increase the risk of injury or death. The employment contribution must take the form of an exertion greater than nonemployment life. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The comparison is not with the employee's usual exertion in employment or nonemployment life, but with exertions of normal nonemployment life of this or any other person. Sondag, 220 N.W.2d at 905. These exertions may be physical or emotional. Swalwell v. William Knudson & Son, Inc., II Iowa Industrial Commissioner Report 385 (App. 1982). The Sondag rule is favored by Professor Larson in his treatise on workers' compensation. See 1A Larson Workmen's Compensation Law, section 38.83 at 7-172. According to Professor Larson, the causation test is a two-part analysis. First, medical causation must be established. That is, medical experts must causally relate the alleged stress, whether emotional or physical, to the heart injury. Second, legal causation must be established. That is, the factfinder must determine whether the medically-related stress is more than the stress of everyday nonemployment life. Robert C. Friederich has proven by a preponderance of the evidence that he had a mild heart attack, that he was under stress in his employment and that the stress was a precipitating factor in aggravating his preexisting coronary condition to cause the heart attack. He has not, however, proven by a preponderance of the evidence that his employment related stresses were greater than the stresses of normal nonemployment life of a normal person. Claimant has therefore failed to prove that his heart attack arose out of and in the course of employment. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. The costs of this action are assessed against the claimant. Signed and filed this ____ day of February, 1993. Page 5 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert E. McKinney Attorney at Law 480 6th St PO Box 209 Waukee, Iowa 50263-0209 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St, STE 200 PO Box 3086 Sioux City, Iowa 51102 Page 1 1108.10 2202 2206 Filed February 26, 1993 Michael G. Trier before the iowa industrial commissioner ____________________________________________________________ : ROBERT C FRIEDERICH, : : Claimant, : : vs. : :File Nos. 967391 & 988003 BEN FRANKLIN, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LUMBERMAN'S MUTUAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.10 2202 2206 Claimant proved that he sustained a heart attack as a result of stress associated with his employment. He had preexisting coronary artery disease. The evidence failed to show that the employment stress was greater than the stresses of normal nonemployment life. The claim was denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JACK WOLDRUFF, : : Claimant, : : vs. : : File No. 967409 GTE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE KEMPER GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jack Woldruff against his employer, GTE, and its insurance carrier, based upon an alleged injury of October 31, 1990. The controlling issue in the case is whether Jack Woldruff's myocardial infarction that occurred on October 31, 1990, constitutes an injury which arose out of and in the course of his employment. The case was heard at Council Bluffs, Iowa, on March 12, 1993. The record consists of testimony from Jack Woldruff, joint exhibits 1 through 26; and claimant's exhibit A. FINDINGS OF FACT The appearance and demeanor of Jack Woldruff was observed as he testified at hearing. His testimony has been considered in light of the other evidence in the case. He is found to be an impeccably honest witness. Jack is a 53-year-old married man who has been employed by GTE for 26 years. He works as a telephone installer and lineman. He normally works alone using a truck provided by the employer. The truck is equipped with the materials, supplies and equipment that he commonly uses for installing telephone and telephone service lines. The office from which he works is located at Clarinda, Iowa. On October 31, 1990, he was assigned a job in the nearby town of College Springs, Iowa. Jack drove to the site and began preparing to perform the project. He removed an extension ladder from the truck and set it on the ground. When he attempted to pick it up he experienced severe, sharp pain in the middle of his chest. He did not know what was wrong and suspected that the problem was indigestion. He waited a few minutes and Page 2 was unable to continue with the project. Jack continued to feel abnormal throughout the rest of his workday. He went to a different nearby town for lunch at a restaurant. He returned to the office at Clarinda earlier than his normal stopping time. He requested to leave work early but was not allowed to leave because another employee was absent. Jack had also desired to leave early in order to travel to Osceola, Iowa, for a high school play-off football game. Jack is an avid supporter of the Clarinda High School football program. Jack eventually completed his workday and then went with his wife to Osceola for the high school football game. The Clarinda team was successful. While traveling to the game, Jack consumed a sandwich. He consumed another sandwich at the game. The Clarinda team was successful and won by a large margin. During the trip home Jack began to feel worse. When they arrived at Clarinda he requested to be taken to the hospital. Jack was hospitalized and diagnosed as having suffered a myocardial infarction. Jack's primary treating cardiologist was Tom V. Pagano, M.D. Jack underwent an angioplasty procedure. He had coronary artery disease. After approximately eight weeks, he was allowed to return to work. He has continued to perform his customary duties without serious problems. When deposed, Jack attributed his heart attack to stress at work. He stated that the company was laying off people and that he and his boss didn't see eye to eye on many things (Joint Exhibit 26, page 53). From the record made at hearing, there was no evidence showing Jack to have had any great amount of psychological stress associated with his work. There was no suggestion that he had received unfavorable performance appraisals, reprimands, threats, notice of layoff or anything which might be considered to be significantly stressful. It would be expected that Jack was assigned work and was required to perform that work but there is no indication that the workload was in any manner oppressive or unreasonable. There is no indication that Jack's work performance was considered to be unreasonable in any manner. There is nothing in the record to indicate that Jack was or was as anything other than a good, valued employee. Jack Woldruff, at the time of the heart attack, exhibited a number of characteristics commonly considered to be risk factors for producing a heart attack. He was overweight and consumed a great deal of fatty food. He had hypertension and diabetes. After the heart attack occurred, he was found to have blockage of one of his coronary arteries and deposits in others. As indicated by Paul From, M.D., in his deposition, claimant clearly had preexisting coronary artery disease. He would not have had the myocardial infarction if he had not been afflicted with coronary artery disease (Jt. Ex. 25, pp. 15-18). Page 3 On the day the heart attack occurred, Jack was engaging in his normal employment activities. The record does not show any emergency situation. There is no indication that he was in any manner being rushed or compelled to perform at anything other than his own pace of work. There is nothing to indicate that the physical exertional requirements of his work activities were anything abnormal in comparison to his usual work. From the record made, it appears as though the actions included things such as walking, bending, carrying moderate weights, climbing ladders and working with hand tools. Nothing in the record shows any of these activities to have been particularly strenuous or to have required anything other than mild to moderate physical exertion. Jack was not rousted out of bed in the middle of the night. He was not working in any type of inclement weather. There is a controversy in the record regarding when the myocardial infarction actually occurred. Paul From, M.D., a specialist in internal medicine, was employed by defendants for purposes of expressing an opinion in this litigation. He expressed the opinion that the infarction probably occurred between 7:00 and 8:00 p.m. on the evening of October 31. He also felt that there was no causal connection between Jack's work and the onset of the myocardial infarction (Jt. Exs. 15 and 16). When deposed, Dr. From stated that work exertion or stress can be a factor in producing a myocardial infarction but that it must be an unusual exertion (Jt. Ex. 25, pp. 34-35). Dr. From also stated that in view of Jack's preexisting coronary artery disease, the heart attack could have occurred at any time (Jt. Ex. 25, pp. 22-23). Dr. Pagano felt that the infarction had occurred during the mid-morning of October 31, 1990. He also reported that additional damage could have occurred during the evening football game (Jt. Ex. 13). Dr. Pagano also reported that claimant's exertion during work precipitated the myocardial infarction (Jt. Exs 12 and 14). Dr. Pagano felt that continuing to work following the onset of symptoms probably increased the degree of damage which occurred (Jt. Ex. 14). That same exhibit seems to indicate that the exertions of his work are greater than his nonwork daily activities. Claimant was also evaluated by Nosrat A. Massih, M.D., another cardiologist. Dr. Massih expressed the opinion that the myocardial infarction was caused and aggravated by mental and physical stress associated with Jack's employment (Jt. Exs. 18, 19 and 20). There is nothing in the records of Dr. Massih which gives any indication as to what parts of Jack's work were considered as being physically or emotionally stressful. There is nothing in the records of Dr. Pagano which indicates that he was aware of claimant's actual physical exertions at his employment on October 31, 1990, or of claimant's typical nonemployment activities and exertions. From the record made at hearing, it appears as though Jack's employment was not particularly emotionally stressful. All employment and all interaction with other Page 4 individuals, be they co-employees, bosses, neighbors or relatives, commonly involves some level of stress. Normal employment and normal nonemployment life both involve some level of physical exertion. It is quite common for any type of work to involve some degree of walking, carrying, bending and similar activities. There is nothing remarkable about the physical activities performed by Jack Woldruff on October 31, 1990, in association with his employment. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). 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). Aggravation of a preexisting condition is one manner of sustaining a compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 Page 5 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Iowa claimants with preexisting circulatory or heart conditions are permitted, upon proper medical proof, to recover workers' compensation benefits where the employment contributes something substantial to increase the risk of injury or death. The employment contribution must take the form of an exertion greater than nonemployment life. Sondag, 220 N.W.2d 903. The comparison, however, is not with the employee's usual exertion in employment, but with exertions of normal nonemployment life of this or any other person. Sondag, 220 N.W.2d at 905. These exertions may be physical or emotional. Swalwell v. William Knudson & Son, Inc., II Iowa Industrial Commissioner Report 385 (App. 1982). The Sondag rule is favored by Professor Larson in his treatise on workers' compensation. See 1A Larson Workmen's Compensation Law, section 38.83 at 7-172. According to Professor Larson, the causation test is a two-part analysis. First, medical causation must be established. That is, medical experts must causally relate the alleged stress, whether emotional or physical, to the heart injury. Second, legal causation must be established. That is, the fact finder must determine whether the medically-related stress is more than the stress of everyday nonemployment life. The legal standards involve tests to be used based upon whether the individual has a previously healthy heart or a previously diseased heart. As a practical matter, individuals with healthy hearts do not have heart attacks. While there are likely some rare occasions where extreme stress or exertion produces a heart attack in an otherwise healthy individual, the overwhelming majority of heart attack cases involve individuals with preexisting coronary artery disease, many of whom had no knowledge of the diseased condition prior to the time that the heart attack occurred. In this case, it is readily apparent that Jack Woldruff had preexisting coronary artery disease. It had not been diagnosed or known to him or to any of his physicians prior to the time that the heart attack occurred but it nevertheless existed. It has been suggested in some agency decisions that if the preexisting coronary disease has not been previously diagnosed, the legal standard to be applied when analyzing compensability is that of a person with a previously healthy coronary artery system. That basis for analysis is inconsistent with the Iowa Supreme Court precedents. The time the coronary artery disease is diagnosed is immaterial. The ultimate fact of whether or not there was preexisting coronary artery disease is what controls the analysis of compensability. In the state of Iowa, if the work exceeds the normal exertions of the employment compensability can be found. In this case, however, there is nothing in the record which shows the exertions of October 31, 1990 to have been Page 6 unusually strenuous. Clearly, the physical exertions that Jack Woldruff experienced at his employment on that day were quite normal for his employment. Carrying the ladder is something that he performed on a daily basis. The ladder was estimated to weigh only 50 or 60 pounds. It is clear from the record of this case that the exertions Jack Woldruff engaged in at his employment on October 31, 1990 were the usual exertions of that employment. Nothing unusual has been suggested or proven. Compensation can be awarded if the work ordinarily requires heavy exertions which take the form of exertion greater than that of normal nonemployment life. The standard for comparison of normal nonemployment life is not particularly definite. There are individuals who, in their nonemployment lives, run in marathons, rebuild their homes, mow lawns, shovel snow, play tennis and engage in a number of forms of quite substantial physical exertion. On the other hand, there are those who live in apartments or condominiums and do nothing more strenuous than walk a few steps on what is essentially level ground between the door of their dwelling and their automobile, never carrying more than a few pounds of weight at any time. With regard to emotional stress, there are some individuals who live a very complacent life off the job. They have no conflicts with spouses, neighbors or relatives. They are financially secure and even have a good relationship with their teenage children and in-laws. Other individuals live in a state of constant turmoil with ongoing altercations with neighbors, harassment from bill collectors and domestic discord. The standard for comparison is not the individual's nonemployment life. It is the normal nonemployment life of a normal person in our society. If a particular claimant is one of the individuals who falls within the extremes of exertion or lack thereof, such does not change the legal standard for comparison. It may, however, have some impact upon the factual question of whether or not the stress or exertion did in fact precipitate the heart attack, but it does not change the legal standard for comparison. The normal nonemployment life which constitutes the correct legal standard contains none of the previously mentioned extremes. Nonemployment life includes activities such as mowing a lawn, carrying groceries, shoveling snow, playing golf, cheering at sporting events, performing minor home and vehicle repairs, cleaning house, doing laundry, lifting small children, swimming, bicycling, walking and other similar activities which provide a mild to moderate level of physical exertion. Normal nonemployment life likewise includes some level of emotional stress. It is necessary to plan one's time, manage one's finances and deal with other individuals who have ideas and beliefs which are contrary to one's own. Mere tolerance of others can at times be quite stressful, regardless of the circumstances. Neighbors have barking dogs and noisy stereos. Vehicles with noisy exhausts travel on the street in front of one's Page 7 home. It is necessary to decide which relatives will be visited for certain holidays. In short, normal nonemployment life carries with it emotional stress. One of the very important factors when defining the level of stress or exertion of normal nonemployment life is the fact that the individual has considerable control regarding the amount of stress or exertion which they choose to accept. One can typically set his own pace when mowing the lawn. If it is extremely hot, he can rest whenever he chooses. In normal nonemployment life, one is able to protect himself from the extremes of weather. There are typically no supervisors and no productivity standards to meet. In general, in normal nonemployment life, a person is able to start and stop activities as they desire and to perform them at their own pace. The level of exertion of normal nonemployment life is not a matter which falls exclusively into the realm of expert testimony. The types of things that people do in their normal nonemployment life is a matter of common knowledge and experience. While some type of expert testimony might be available to quantify the exertional requirements of various activities by objective tests such as measurement of calories expended or other objective measurements of the amount of work or exertion actually performed, it is quite proper to rely upon common knowledge and experience to recognize what is within the realm of the stresses and exertions of normal nonemployment life of a normal individual. It includes not only the nature of the activity but also the rate or pace at which the activity is performed. For example, playing basketball can be quite strenuous if it involves running up and down a court at full speed. Briar Cliff College v. Campola, 360 N.W.2d 91 (Iowa 1984). Playing basketball can also be not at all strenuous if it involves merely shooting baskets. In this case, it is not necessary to determine precisely when the actual myocardial infarction occurred. Clearly, the infarction or the events leading up to it were underway at the time Jack was handling the ladder on the morning of October 31, 1990. The actual infarction might not have occurred at that time but if it did not, the sequence of events which would ultimately lead to it had been placed into motion. There is some question with regard to whether or not the activities in which Jack had engaged involved sufficient exertion to precipitate a myocardial infarction. Coronary artery disease is known to be a progressive condition. It develops to the point that it can be sufficiently severe that a myocardial infarction can occur at any time without any identifiable precipitating cause or factor. The closer one approaches in the development of the disease to that point in time the less is the amount of exertion that is required to precipitate a myocardial infarction. It is apparent that Jack Woldruff's coronary artery disease had progressed to the point that it required little, if any, physical exertion to precipitate Page 8 the myocardial infarction that occurred. As with the time that the infarction actually occurred, it is likewise unnecessary to determine whether or not the physical exertion of work on October 31, 1990 actually precipitated the infarction. That is so because the level of exertion has not been shown to be greater than that of normal nonemployment life. A third possible means of compensability arises when an individual has a heart attack that is not caused by work but feels compelled to continue working rather than seek medical care and sustains further damage. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). In this case, there is no clear indication that there is anything other than a possibility that further damage might have occurred from the claimant continuing to work after the onset of symptoms. Further, there is nothing to indicate that claimant felt compelled to continue working and therefore delayed seeking medical care out of some sense of work ethic or duty to his employer. He was in a situation where he could have readily driven to seek medical care if he had chosen to do so. Every indication is that he thought he had indigestion and, therefore, did not consider it to be a reason for leaving work or seeking medical care. When viewing the record as a whole which was made in this case, it is determined that the claimant has failed to prove by a preponderance of the evidence that the physical or emotional stress associated with his employment on or about October 31, 1990 provided a level of stress or exertion that was greater than that of normal nonemployment life. There is nothing in the record to suggest that the stress or exertion was in any way greater than that which was typical for Jack's work.It is possible that he kept working after its onset and that doing so caused damage. Neither of those facts are proven by a preponderance of the evidence, however. It is therefore concluded that Jack Woldruff has failed to prove by a preponderance of the evidence that his heart attack was an injury which arose out of and in the course of his employment or that it is otherwise compensable. Page 9 ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. The costs of this action are assessed against claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of May, 1993. ________________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sheldon M Gallner Attorney at Law 803 Third Ave Council Bluffs IA 51502 Ms Judith Ann Higgs Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 1108.10; 1402.30; 2202; 2206 Filed May 26, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JACK WOLDRUFF, Claimant, vs. File No. 967409 GTE A R B I T R A T I O N Employer, D E C I S I O N and THE KEMPER GROUP, Insurance Carrier, Defendants. ___________________________________________________________ 1108.10; 1402.30; 2202; 2206 Claimant failed to introduce evidence showing that the level of stress for exertion associated with his employment had precipitated his heart attack. There was really no serious suggestion of psychological stress. His physical activities consisted of mild to moderate exertion. An analysis was made of what is meant by "normal nonemployment life" when comparing exertions for purposes of determining compensability. It was held to mean the normal nonemployment life of a normal individual which includes stress and physical exertion. For purposes of determining whether the individual has a previously diseased heart the fact of whether or not it was previously diagnosed is immaterial. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : HELEN PATTERSON, : : Claimant, : : vs. : File Nos. 997270 : 967695 QUALITY INN, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY & : GUARANTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Helen Patterson, against her employer, Quality Inn and its insurance carrier, United States Fidelity and Guaranty Company, defendants. The case was heard on May 6, 1993 at the Webster County courthouse in Fort Dodge, Iowa. The record consists of the testimony of claimant. The record also consists of claimant's exhibits 1-3, and joint exhibits A-E and F29-86, 98, 106, 107, 127-145. The record also consists of the testimony of claimant. ISSUES The issues to be determined are: 1) whether there is a causal relationship between the work injury and any permanent disability; and 2) whether claimant is entitled to any permanent partial disability benefits. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 45 years old. She is single. Claimant graduated from high school in 1966. She attended college for 3 1/2 years at both Iowa Central Community College and Mankato State College. Claimant holds an Iowa license to practice as a Licensed Practical Nurse. Her certificate is currently inactive. She has not been actively employed as a nurse for nine years. Claimant last worked as a LPN in 1984. She left the profession because of stress on the job. She testified in her deposition that she had no desire to return to nursing. Since leaving the nursing profession, claimant has been Page 2 underemployed in the restaurant, bar and hotel industry. She has worked as a waitress, bartender and hostess. Her wages have been in the area of the prevailing minimum wage. Claimant has also delivered morning newspapers for the past several years. Claimant was hired in December of 1985 to work for the then Holiday Haus in Fort Dodge, Iowa. Later the Holiday Haus was purchased by another owner, and it became the Quality Inn. Originally, claimant was hired as a waitress and a bartender. In June of 1986, claimant was promoted to lounge manager. She worked as the lounge manager for 3 1/2 to 4 years. Her duties included opening and closing the lounge, making deposits at the bank, ordering stock, taking inventory, hiring part-time employees, tending bar for parties, making pizzas and engaging in promotional work. There was a considerable amount of lifting involved with the position. Claimant carried ice buckets, lifted liquor bottles, and she filled coolers with beer, although she used a push cart to assist her. Since she was responsible for cleaning, claimant mopped the floor each night. She used a rag mop to assist her in her cleaning responsibilities. Claimant also washed dishes, including pizza pans and popcorn pans at the end of each evening. On November 30, 1989, claimant was lifting cases of beer from the storeroom shelves and placing the cases onto a push cart. Overhead lifting was involved, and as claimant was pulling a case of 24 pint bottles, she experienced "a hot burning pain" in her shoulder. She also experienced pain in her shoulder, arm and neck. Claimant completed her shift. She also continued to work on succeeding days. She did not seek medical attention at that time. On December 7, 1989, a similar situation occurred. It was during the evening hours and claimant was again pulling cases of beer. She was removing cases of pint bottles from shelves in the storeroom. She experienced the same pains in her right shoulder. Claimant reported the injury to her supervisor, Loretta Hoeffer. Within the next week, defendant-employer authorized claimant to seek medical attention from her family physician, Charles Dagle, M.D. He diagnosed claimant as having a right sore shoulder. (Joint Exhibit F, page 128) He ordered a right shoulder arthrogram. The arthrogram showed a normal right shoulder. (Jt. Ex. F, p. 29) Dr. Dagle treated claimant conservatively for a period of time. He then referred claimant to an orthopedic specialist when claimant's condition did not improve. Samir R. Wahby, M.D., examined claimant on March 23, 1990. He wrote the following in his report of March 28, 1990: Exam today revealed pain and tenderness over the anterior aspect of her right shoulder with increased pain and tenderness on rotation. Pt was told that she has subacromial bursitis and was Page 3 given Cortisone injection and she will be back for follow up in three wks and if no improvement she will be scheduled for arthroscopy of her right shoulder. (Jt. Ex. F, p. 86) In May of 1990, defendant-employer terminated claimant's employment. The termination was unrelated to claimant's work injuries. She was terminated because of disagreements between claimant and her immediate supervisor. In a matter of days she was again employed as a waitress and a bartender in another hotel situation. Claimant has been continuously employed in the restaurant and bar business since her termination in May. Claimant sought a second opinion from another orthopedic specialist. On June 26, 1990, claimant saw Robert J. Weatherwax, M.D. (Jt. Ex. F, p. 133) Basically, Dr. Weatherwax concurred with the opinion of Dr. Wahby. Claimant testified that subsequent to receiving her cortisone injection, her pain subsided for a period of time. However, the pain returned. Claimant continued follow up care with Dr. Wahby. Later Dr. Wahby performed a right shoulder arthroscopy and acromioplasty. The surgery occurred on November 6, 1990. In his post-surgical report, Dr. Wahby opined that: FINAL DIAGNOSIS: Subacromium bursitis, status post arthroscopy right shoulder and arthroscopy acromioplasty. Complications, infections: None. The patient was admitted to the hospital for subacromial bursitis and pain and discomfort of her shoulder. The patient was taken to the operating room and had shoulder arthroscopy and acromioplasty. The patient did very well and started ambulation the same day. She will be sent home today with Tylenol #3 for pain and she will be seen for follow up in my office in one week. (Jt. Ex. F, p. 63) Claimant continued with follow up care, including home exercises to improve her range of motion. Claimant progressed positively for a period of time. Dr. Wahby released claimant to return to work as of December 10, 1990. (Jt. Ex. F, p. 77) Then she experienced pain in the right shoulder. She returned to Dr. Weatherwax for another opinion. In his note of June 18, 1991, Dr. Weatherwax wrote: OBJECTIVE: On examination, she has some mild restriction of internal and external rotation with very early frozen shoulder syndrome. She has full Page 4 abduction, forward flexion and extension. She has pain on abduction and still a positive impingement sign. The collar bone is not tender at the AC joint. Arthrograms and xrays previously have been negative. RECOMMENDATIONS: It would be my feeling that a trial of at least one steroid injection and exercise for a month would be appropriate not only to see if we can eliminate the pain, but improve some of the early frozen shoulder symptoms. If this did not resolve her symptoms, I would then offer open decompression as I think that this is a better technique unless you are one of the very few that arthroscopically has had a great deal of experience with bursal procedures. Provided her exercises to work on the motion. Would suggest steroid injection into the bursa at least once to see if it would resolve the symptoms and get her on her way to recovery. (Jt. Ex. F, p. 132) One month later claimant returned to Dr. Wahby for another examination. She was again experiencing pain. Dr. Wahby gave her a cortisone and Depo Medrol and Xylocaine injection. Claimant returned to Dr. Wahby one month later. Upon examination of claimant, Dr. Wahby noted there was full range of motion of the right shoulder. In April of 1992, claimant again saw Dr. Wahby. He injected her with a second cortisone shot. Two months later another injection was administered to her. In December of 1992, Dr. Wahby authored the following report: In answering your letter dated December 16, 1992, as you know I have been taking care of Ms. Patterson for the last 2 1/2 years. The patient has subacromial bursitis of her right shoulder for which she underwent arthroscopy of the right shoulder and debridement and the patient improved some following the surgery however later on she started having more pain and discomfort of her right shoulder. The patient redeveloped the subacromial bursitis that she had. The patient came yesterday to my office complaining of increased pain and discomfort of her shoulder as well as tingling and numbness of both hands and fingers. Examination revealed that she has pain and tenderness over the anterior aspect of the right shoulder although she has excellent motion of her shoulder she still had pain and discomfort during range of motion. The patient seems to have an intact rotator cuff. Examination of both hands revealed that the Page 5 patient has positive Tinel and Phalen signs however she does not have any muscle wasting or atrophy. The patient has subacromial bursitis of her right shoulder and she will require an acromioplasty and decompression of the right shoulder and she will be scheduled for EMG's of both hands and fingers and if they show that she has carpal tunnel syndromes then she will be a candidate for bilateral carpal tunnel syndrome releases. The patient was given a Depo Medrol and Xylocaine injection in the right shoulder and she will be seen back for follow up after obtaining the EMG's. (Claimant's Exhibit 1) In January of 1993, defendants sent claimant to Dr. Wirtz, M.D. (first name unknown), for purposes of an examination and an evaluation. In his report of January 15, 1993, Dr. Wirtz opined: Exam shows she is tender in the right shoulder on the medial aspect of the bicepital tendon which is intact. The biceps is 5/5 in strength. The puncture wounds are small in nature and they are three in nature and are well healed. The forward flexion is 180/180 degrees, external rotation 90/90 degrees and internal rotation 45/60 degrees. Extension 45/45 degrees and abduction 135/135 degrees. ... Diagnosis: 1. Status postop arthroscopic decompression, right shoulder. Regarding 12/17/92 correspondence and review, the following would be conclusive. The right shoulder demonstrates loss of motion with internal rotation which would relate to a 5% impairment of the right upper extremity. The symptoms in the shoulder area not requiring strong medications or physical therapy would be minimal in restriction of function. Over-shoulder-height activity would be the only restriction with the right upper extremity. (Jt. Ex. F, pp. 134 & 136) Claimant's attorney then sent claimant to another physician for the purpose of examination and evaluation. Claimant saw David R. Archer, M.D., a family practice physician, on July 6, 1993. Dr. Archer authored a report, dated, July 12, 1993. In his report, Dr. Archer opined: Page 6 On physical examination, her general physical exam is benign. Neurologic exam, likewise, is within normal limits with normal motor and sensory testing at all levels. On orthopedic examination, her shoulders are near level, though the left is slightly high. She has a normal gait and station otherwise. She carries her head somewhat forward. Range of motion of the neck and thoracic spine is within normal limits, as is the lumbar spine. Examination of her shoulders reveals normal range of motion in all plains, including internal and external rotation at both 0 and 90o of abduction. At this point, she seems to have improved in internal rotation over Dr. Wirtz' exam in January of 1993. She does, however, have mild crepitation on exam in a post-op shoulder, and continues to have pain, especially with overhead lifting. I, therefore, concur with Dr. Wirtz. Impression: we have a 45 year-old, white, female bar-maid with an old chronic bursitis, status-post arthroplasty, who has made about all the recovery that I think she is doing [sic] to make. Currently, her range of motion is full, but the right shoulder still hurts. It seems tighter than the left shoulder, and exhibits mild crepitance. According to the AMA Guides to Permanent Impairment, 3rd Edition, revised, this would translate into 6% upper extremity impairment, or 4% whole person impairment. This is a chronically painful joint, and overhead lifting will probably not be tolerable as has been noted previously. Apparently, the patient had a good work record prior to the injury of November, 1989, and based on this history, I would, therefore, conclude that her current shoulder impairment is attributable to that injury. I have seen this patient once for the purpose of this evaluation and have not offered treatment. However, I do think she could benefit from standard chronic pain therapy, and have recommended that she see her regular physician to reconsider pain medication, and this was discussed with her.... (Cl. Ex. 2, p. 2) CONCLUSIONS OF LAW The first issue to address is whether the work injury on November 30, 1989 is the proximate cause of any permanent condition. It is the determination of the undersigned that the initial injury to claimant's right shoulder has not resulted in any permanent condition to claimant's right shoulder. As has been stated on numerous occasions, 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 Page 7 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). With respect to the first work injury, claimant had been able to return to her same position following the work injury. She had normal range of motion. She was treated conservatively, and she sufficiently recovered so that she could return to work and perform the same job responsibilities. The situation is different with respect to the second work injury which occurred on December 7, 1989. Claimant has proven by a preponderance of the evidence that she has a permanent disability to her right shoulder as a result of this work injury. After the second injury, claimant again engaged in conservative treatment. However, the conservative treatment did not have positive results. Eventually, claimant had surgery. There were problems. The surgeon found dense fibrous tissue with bony fragments and calcification. (Jt. Ex. F, p. 39) Claimant complained of tenderness in her right shoulder. She had increased pain on range of motion. Dr. Weatherwax found that claimant had some mild restriction of internal and external rotation and that she had the early signs of a frozen shoulder syndrome. (Jt. Ex. F, p. 132) Dr. Wirtz found that claimant had a loss of motion with respect to internal rotation. (Jt. Ex. F, p. 136) He restricted claimant from working above the shoulder level with the right upper extremity. Dr. Archer found that claimant's shoulder was tighter and that she had mild crepitance. (Cl. Ex. 2, p. 2) Two physicians opined that claimant had permanent impairments totaling five to six percent of the upper extremity. Claimant has met the requisite burden of proof. She has sustained a permanent condition. The next issue to address is the nature of claimant's permanent condition. Claimant alleges her condition is related to the body as a whole. Consequently, she asserts that she has an industrial disability. Defendants maintain claimant has a scheduled member injury. The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring Page 8 this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). An injury to a scheduled member may, because of aftereffects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Indus. Comm'r Rep. 281 (Appeal December 1982 ); a torn rotator cuff was found to cause disability to the body as a whole. It is recognized that this division formerly and consistently compensated shoulder injuries industrially on the basis that such injuries involved disability to the body as a whole. Streeter v. Iowa Meat Processing Company, (Appeal Decision, March 31, 1989). A more recent appeal decision has emphasized that it is the situs of disability that is determinative. In Prewitt v. Firestone Tire and Rubber Company, (Appeal Decision, August 12, 1992), the industrial commissioner has held that where the treating surgeon testified that claimant had full range of motion and full strength of the shoulder following an injury and surgery, then claimant had sustained an injury to the arm rather than to the shoulder. Upon remand, the Industrial Commissioner again determined that claimant's injury was not an injury to the body as a whole. In an appeal decision, and after a remand from the Iowa District Court, the industrial commissioner has again held that claimant's injury was to the upper extremity and not to the body as a whole. (Appeal Dec. on remand June 30, 1993) In another appeal decision, the industrial commissioner has held that where claimant's condition consisting of hand, arm, and shoulder symptoms are found to extend to the body as a whole even though the physicians' ratings are to the upper extremity. Thompkins v. John Morrel & Company, Page 9 (Appeal Dec. February 22, 1993). In the instant case, claimant has established that her injury falls within the class of injuries to the shoulder which extends to the body as a whole. Dr. Wirtz notes there is a loss of range of motion. The surgical procedure extends into the body as a whole. More than just the upper extremity is involved. The acromin is involved too. Claimant is precluded from working above the shoulder level. The mere fact that the impairment ratings use the upper extremity to measure the impairment of the shoulder does not, in and of itself, indicate that the impairment or disability is restricted to a schedule. Pullen v. Brown and Lambrecht Earthmoving, Inc., II Iowa Ind. Comm'r Rpt. 308 (App. Dec. 1982); Franzen v. Mid-Valley, Inc., Vol 1., No. 4, State of Iowa Indust'l Comm'r Decisions, 834 (1985). It is common for physicians to rate both shoulder and hip injuries with reference to the upper and lower extremity. The shoulder is considered to be an element of the upper extremity. AMA Guides, 3d Edition, chapter 3, section 3.1g, page 31. This case is analagous to the Fullerton case, supra where former Industrial Commissioner Robert Landess writes: A disability to the shoulder is a disability to the body as a whole.... As claimant has an impairment to the body as a whole, an industrial disability had been sustained. (Fullerton, supra, at 135). With respect to the present case, there is sufficient legal authority to support a conclusion that the second injury is an injury to the body as a whole. It is to be compensated using the industrial method. The final issue to address is whether claimant has sustained an industrial disability. 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. Page 10 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. It is determined that claimant has sustained a 10 percent industrial disability. She is entitled to 50 weeks of permanent partial disability benefits at the stipulated rate of $155.25 per week and commencing from December 13, 1990. Two physicians have determined functional impairment ratings for claimant. The ratings are in the range of four percent. Claimant is precluded from engaging in work which involves working above shoulder level. Some manufacturing jobs are no longer available to her. Claimant, however is able to return to the same type of employment which she had held prior to the work injury. Claimant can accommodate her restriction of no work above shoulder level. She has learned to use carts, and to seek the assistance of co-employees when reaching is involved. It is acknowledged that claimant had been terminated by defendant-employer. However, the termination was in no way related to her work injury or to her work restriction. Even after she was Page 11 terminated, claimant was able to acquire similar employment in only a matter of days. Claimant maintains she is no longer physically able to work as a licensed practical nurse and that as a consequence she has a loss of earning capacity. It is not known whether claimant can obtain employment in the nursing profession. Claimant has not sought employment in the field for a number of years. The argument that her earning capacity has been reduced because she is no longer able to practice nursing is without merit. Claimant has been underemployed since 1985. Her decision to forego a career in nursing is totally unrelated to her right shoulder injury. Previous to her employment with defendant-employer, she abandoned the nursing profession. She testified she left nursing because of stress. Her decision to work in the restaurant and bar business is unrelated to her injury in December of 1989. She is well aware that the hospitality industry is notoriously low with respect to its wage scale. For four years prior to the work injury, claimant had just been earning minimum wages plus tips. After the accident, she was still earning minimum wages plus tips. In actuality, she was earning more per hour after the second work injury because the state and federal minimum wage had increased. It is recognized that claimant is precluded from certain minimum wage jobs such as cleaning walls, painting homes, or certain warehouse positions in the retail industry where she is required to work above shoulder level. However, there are still plenty of jobs in the service industry which pay minimum wages or slightly better. Employment is available to claimant. While claimant does not have a college degree, she does have 3 1/2 years of a college education. She has no desire to complete a degree requirement. Her level of education far exceeds the requirements of a minimum wage level job. Claimant is articulate, friendly and presents herself well. She is neat. Her personality is pleasing. She has had prior experience in sales and she has some management skills. Her earning capacity is not as greatly reduced as claimant maintains. There are still plenty of entry level jobs available to her. She is capable of handling more skillful positions. Probably, there are more than entry level jobs available to her, but claimant has decided to remain underemployed. Therefore, in light of the above, coupled with this deputy's personal observations and expertise, it is the determination of this deputy that claimant has sustained a 10 percent permanent partial disability. ORDER THEREFORE, it is ordered that: Defendants shall pay unto claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of one hundred fifty-five and 25/l00 dollars ($155.25) per week and commencing on December 13, 1990. Page 12 Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of September, 1993. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jerry Schnurr, II Attorney at Law 805 Central Ave. P.O. Box 952 Fort Dodge, Iowa 50501-0952 Ms. Iris J. Post Attorney at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1803; 1803.1; 1803 Filed September 10, 1993 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HELEN PATTERSON, Claimant, vs. File Nos. 997270 967695 QUALITY INN, A R B I T R A T I O N Employer, D E C I S I O N and UNITED STATES FIDELITY & GUARANTY CO., Insurance Carrier, Defendants. ___________________________________________________________ 1803; 1803.1 Claimant sustained an injury to her right shoulder. Surgery was performed by Dr. Wahby. The body side of the injury was affected since the acromion was involved. Two evaluating physicians rated claimant has having an impairment to the right upper extremity. Claimant had a reduced range of motion. She was precluded from engaging in work above shoulder level. It was held that claimant sustained an injury to the body as a whole. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) was followed. In Lauhoff, claimant was determined to have an industrial disability since the injury affected the "body side" of the shoulder joint. In the present case, claimant's body side was affected. 1803 Claimant worked in a restaurant and a lounge. After she was injured, she returned to a similar job at the same rate of pay or higher. Her doctor restricted claimant from working above shoulder level. Claimant had 3 1/2 years of college, although she had no degree. She had been licensed by the State of Iowa as a Licensed Practical Nurse. However, four years before her work injury, claimant left the nursing profession because of stress. Her decision to abandon her career was unrelated to her work injury. Since leaving the nursing profession, claimant had been underemployed in the hospitality industry. Her subsequent employment in the restaurant and lounge business involved entry level jobs which were compensated at the minimum wage level plus tips. After her work injury, claimant could still perform work in many entry level positions. Some manufacturing, warehousing, or cleaning positions were not available to her, since she could not work above shoulder level. However, there were numerous jobs in the service industry which were still open to her. Claimant's decision to remain underemployed was a personal one and not related to her work injury. Claimant made no attempts to seek employment which paid more than the prevailing minimum wage. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SHIRLEY GUNSOLLEY, : : Claimant, : : vs. : : File No. 967773 ST. LUKE'S HOSPITAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARM BUREAU MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Shirley Gunsolley, claimant, against St. Luke's Hospital, employer, hereinafter referred to as the Hospital, and Farm Bureau Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on November 1, 1990. On September 20, 1994, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. On November 1, 1990 claimant received an injury arising out of and in the course of employment with the Hospital. 2. Claimant is not seeking additional temporary total or healing period benefits in this proceeding. 3. The type of disability is an industrial disability to the body as a whole. 4. At the time of injury claimant's gross rate of weekly compensation was $491.60; she was single; and, she was entitled to two exemptions. Therefore, claimant's weekly rate of compensation is $298.51 according to the Industrial Commissioner's published rate booklet for this injury. Page 2 5. Medical benefits are not in dispute. ISSUES The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to permanent disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross- examination as to the nature and extent of the disability. From her demeanor while testifying, claimant is found credible. Claimant worked for the Hospital as a surgical nurse from March 1986 until 1992 at which time she left due to ongoing chronic pain and she never returned. Claimant earned $12.88 per hour in this job at the time of the alleged injury herein. Although she completed a two year registered nurse program at a local community college, claimant began her employment at the Hospital as a nurse's aid. After passing her state board exams a few weeks later, she was transferred to surgery as a registered nurse. Claimant worked both as a circulating nurse and as a scrub nurse. She generally received very good performance ratings and was given additional responsibilities such as head of the organ transplant team; head of the urology team; and proctor or trainer of new nurses. At the time of injury, claimant was participating in a new first surgical assistant program in which she would eventually qualify as a surgical assistant. This program arose because insurance companies were refusing to pay family doctors to assist in surgical procedures. Claimant was compelled to drop from this program after the injury due to her work activity restrictions. The injury in November 1990 was to the low back after lifting a very heavy cadaver following an organ transplant. Claimant was treated and evaluated by a number of physicians, including Richard Krieter, M.D., an orthopedic surgeon; Byron Rovine, M.D.; Michael Cullen, M.D.; Richard Roski, M.D., a neurosurgeon; and Timothy Millen, M.D. Claimant has undergone extensive physical therapy including work hardening. However, her treatment to date has remained conservative as all physicians have rejected surgery as a treatment option. Claimant did receive three epidural steroid injections but she stated that these injections only temporarily relieved the pain. Despite this conservative care, chronic pain has plagued claimant since the injury and has prevented a return to her surgical nurse job at the hospital. Under direction from Dr. Kreiter, claimant made an attempt in the spring and summer of 1991 to gradually return to her surgical nurse job and with accommodations by the hospital staff Page 3 in restricting her lifting. Claimant stated that without such accommodation, she could not perform the circulating nurse duty due to the required lifting of instrument trays weighing over 35 pounds or to scrub nurse duty due to the need for prolonged standing without a break during surgery. Although she returned to a full eight hour day in mid June, she was compelled by her pain to leave work again at the end of June with a new round of treatment and physical therapy by Dr. Roski. At that time, claimant was experiencing great fatigue, low back and leg pain, leg numbness and inability to sleep through the night due to pain. In September 1991 she was informed by the hospital that she could not return to her surgery job without a release to full duty. Claimant then attempted a return to other jobs at the hospital with help from a rehabilitation nurse retained by defendants. For a few months, claimant operated a computer entering surgical data but this was only a temporary position. Claimant testified that she worked at this job until her work was completed. A claim that she abandoned that job was not substantiated by defendants. Claimant applied for a holding room nurse position. Although within her restrictions, she was not hired as hospital management felt she may not be physically able to do the work. The hospital also asked claimant to consider a scheduling nurse position paying $10.00 per hour but claimant did not apply stating that she did feel that she could perform the sitting requirements. Other clerical jobs paying $5.50-6.50 per hour were suggested but claimant stated at the hearing that she did not feel she had to take any lower paid positions. Claimant for a period of time also worked for a nursing home care facility as a supervisor but this was again only temporary and part-time. Claimant has now obtained a position as school nurse with the Rock Island School District and earns $11.42 per hour although she does not work in the summer and for extended vacation periods during the year. Claimant clearly became angry with her lack of success in returning to work. This anger was apparent during a pain management course in 1992. She felt resentful of the hospital's treatment of her. Although claimant eventually completed the program, she felt that the psychological aspects of this pain management course were of no use to her. It is found that the work injury of November 1, 1990 is a cause of a significant permanent impairment to the body as a whole. The exact percentage is not important in this industrial disability case. More important are the activity restrictions imposed upon claimant by her physicians. According to Dr. Kreiter's most recent report, claimant is not able to perform more than light to medium work with occasional lifting of 35 pounds, frequent lifting of 20-25 pounds and constant lifting of only 10 pounds. Claimant can no longer stoop or bend more than occasionally or to walk, stand or sit more than two hours without a break. Given claimant's credible testimony, these restrictions prevent her from returning to her surgery work at the hospital and the hospital has not returned her to work in any capacity. Although claimant probably should have at least applied for the Page 4 scheduling nurse position, there is no reason to believe it would have been offered to her given the failure of the hospital to offer the holding nurse job, another position technically within claimant's restrictions. As a result of her work-related restrictions and limitations, claimant has suffered a major economic loss. Registered nurses at the hospital make currently $15.63 per hour and work at least 40 hours a week. Claimant stated that she routinely worked overtime. Today she makes over $4.00 per hour less and works only 35 hours a week with extensive summer and holiday breaks. Although her relationship with the hospital was strained, this is understandable given claimant's situation. She worked her way up from office nurse, to surgical tech and eventually to registered nurse as a single mother and was making a good living at the time of her injury. At the time of injury, she was advancing in her profession and about to complete a surgical assistant program. Today, she is making considerably less. Her future in surgery has ended and continuation in surgery was her best opportunity for advancement in her chosen profession. Given her age at 45 years, her potential for retraining is limited. However, she does have a high school education with a two year nursing degree which gives her considerable transferable intellectual skills. But, again, her loss of opportunity and earning capacity is substantial despite her return to the workforce. Claimant had a instance of back problems 15 years before this injury but there is no evidence to suggest that she did not fully recover from these problems and was pain free at the time of the injury herein as claimed by claimant. From examination of all of the factors of industrial disability, it is found that despite her return to the workforce, the work injury of November 1, 1990 was a cause of a 50 percent loss of earning capacity. CONCLUSIONS OF LAW The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact to determine from the completeness of the premise given the expert or other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with non-expert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Page 5 Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966) Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974). As the claimant has shown that the work injury was a cause of permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Loss of potential employment is also a factor to consider in assessing industrial disability. Collier v. Sioux City Comm. Sch. Dist., Case No. 953453 (Appeal Decision filed February 25, 1994. In the case sub judice, it was found that claimant suffered a 50 percent loss of her earning capacity as a result of the work injury. Such a finding entitles claimant to 250 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 50 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. ORDER 1. Defendants shall pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits at a rate of two hundred ninety-eight and 51/l00 dollars ($298.51) per week from August 4, 1992. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendants shall pay interest on weekly benefits awarded Page 6 herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. J. E. Tobey, III Attorney at Law 601 Brady St STE 211 Davenport IA 52803 Mr. Michael W. Liebbe Attorney at Law PO Box 339 Davenport IA 52805-0339 Ms. Angela A. Swanson Attorney at Law 5400 University Ave West Des Moines IA 50265 5-1803 Filed October 20, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHIRLEY GUNSOLLEY, Claimant, vs. File No. 967773 ST. LUKE'S HOSPITAL, A R B I T R A T I O N Employer, D E C I S I O N and FARM BUREAU MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case.