BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALEJANDRO L. VASQUEZ, : : Claimant, : : vs. : File Nos. 924090 : 970006 H. J. HEINZ, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This decision concerns two proceedings in arbitration brought by Alejandro L. Vasquez against his employer, H. J. Heinz, and its insurance carrier, Liberty Mutual Insurance Company. The claims are based upon admitted injuries of June 29, 1989 and October 20, 1990. Claimant seeks additional weekly benefits for healing period and permanent partial disability. He has not, however, specified the periods of time for which he claims additional healing period compensation. The employer denies that the first injury caused any permanent disability but it agrees that the second caused some permanent disability. The employer contends that it has paid in full all amounts which the claimant is entitled to receive as a result of either of the two injuries. The case was heard and fully submitted at Davenport, Iowa, on march 26, 1992. The evidence consists of joint exhibits A through K; and testimony from Alejandro L. Vasquez, Beatrice Vasquez, David Marler, and Kendall Kelly. 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. It is found that Alejandro L. Vasquez suffers from chronic back pain. He is a 38-year-old married man who was born in Mexico and then moved to the United States at age 16. He attended six years of school in Mexico but has no further formal education. He speaks English poorly but demonstrated sufficient proficiency in order to participate in the hearing of this case. He appears to have sufficient spoken English language proficiency to function adequately Page 2 in industrial plant settings. He would be unlikely, however, to be able to function sufficiently well to engage in any occupation where average proficiency in verbal communication in the English language was a job requirement. His ability to read and write in English is much lower than his ability to converse. It is extremely unlikely that he could perform any job where reading or writing in English was a substantial part of the job. Since coming to the United States, all of claimant's employments have consisted entirely of physical labor. He was hired by Heinz in 1977 but quit after approximately two years to move to the Quad Cities. He returned to the Muscatine area and was re-employed by Heinz in 1981. He has remained employed by Heinz since 1981. On June 27, 1989, claimant injured his back when his foot slipped on a wet floor while he was pushing racks. He was initially seen by the company nurse and then referred to orthopedic surgeon Ralph H. Congdon, M.D. It was initially suspected that claimant had a herniated lumbar disc but diagnostic testing failed to definitely identify any such condition. Claimant was off work under the care of Dr. Congdon from July 10, 1989 through September 4, 1989, when he returned to work with a 40 pound lifting restriction (Exhibit F, page 13). On October 30, 1989, Dr. Congdon authorized claimant to resume full duty work (Ex. F, p. 14). While claimant was off work he was paid temporary total disability benefits. While working under restriction, he was paid temporary partial disability benefits according to testimony from Kendall Kelly. There is no evidence in the record to show whatever amounts were paid were incorrect. After returning to work following the 1989 injury, claimant moved into a higher paying position. He worked for approximately a year without exhibiting any notable problems with regard to his back. While he testified at hearing that his back never completely recovered, the record does not show any distinct manifestations of any disability affecting his back between the time he returned to work following the 1989 injury and the date that the 1990 injury occurred more than one year later. It is therefore found that the June 29, 1989 injury did not cause any permanent disability though it might have caused some chronic discomfort. On October 20, 1990, claimant was working on the second shift repairing pallets. He carried a pallet which needed repair and when setting it down, he experienced an onset of pain in his lower back. He reported the incident to the nurse. Eventually he was referred to the company physician, William Catalona, M.D., a board certified orthopedic surgeon. Claimant was again taken off work and treated conservatively. Diagnostic tests were conducted but showed no degenerative disc disease (Ex. G, pp. 5 and 9). A second opinion was sought from Robert O. Crous, III, M.D. By December 12, 1990, Dr. Crous had released claimant to resume full duty work (Ex. G, p. 12). Claimant was also referred for evaluation to Bakkim Page 3 Subbiah, M.D., a neurologist. Dr. Subbiah diagnosed claimant as having degenerative disc disease without nerve root compression (Ex. H, pp. 1 and 2). A myelogram was performed which was interpreted as being normal except for degenerative disc disease (Ex. H, p. 6). EMG tests were interpreted as being normal. Dr. Subbiah noted that claimant could return to work without restrictions (Ex. H, p. 7). Dr. Subbiah also assigned a permanent impairment rating of 7 percent of the whole person (Ex. H, p. 8). Dr. Catalona rated claimant as having a 5 percent permanent impairment, he felt that the rating was not inconsistent with that made by Dr. Subbiah (Ex. K, pp. 7-9). Dr. Catalona felt that claimant should follow activity restrictions in the nature of avoidance of lifting more than 25 pounds (Ex. K, p. 11). He felt that the restrictions should be applied because it was his opinion that claimant did not have the physical capacity to perform heavier work as a result of instability in his spine and that the restrictions were imposed due to that instability (Ex. K, pp. 15, 16 and 19). Dr. Catalona apparently found the case somewhat perplexing because none of the diagnostic tests revealed the cause of claimant's backache (Ex. K. pp. 6-7). Claimant did not improve significantly from any of the treatment which had been provided (Ex. D, p. 4). Following recuperation from the second injury, claimant resumed work and has continued to work at a higher paying job than the one he held at the time of the first injury. Claimant customarily performs jobs which require a relatively high degree of physical effort. It appears as though he does not follow the restrictions recommended by Dr. Catalona and that the employer does not limit claimant's activities to those which fall within the restrictions recommended by Dr. Catalona. Claimant has restricted his recreational activities and such is evidence that the symptoms and discomfort of which he complained at hearing are real and bonafide. As indicated by Dr. Catalona, the case is somewhat perplexing in the sense that no cause for the back pain, other than degenerative disc disease, has been identified. The only physician who treated claimant after the first injury released him to return to work without any restriction. Both of the physicians to whom claimant was referred by Dr. Catalona following the second injury have released him to return to work without restriction. It is only Dr. Catalona who has recommended any activity restrictions. Dr. Catalona does not relate those restrictions directly to either of the injuries so much as he relates them to the claimant's expressed symptoms. Claimant, himself, does not follow those recommended restrictions as evidenced by the fact that he has attempted to move into a position which has high exertional requirements than the position he normally holds and also by his volunteering to work double shifts. While some restriction of claimant's activities is likely appropriate the degree of that restriction is not as severe Page 4 as what Dr. Catalona recommended. It is also recognized that claimant in his case is a married man with four dependent children. His job with Heinz likely pays considerably better than any other job he would be likely to obtain or perform with any other employer in the vicinity where he resides. Claimant is uneducated and untrained but he is apparently intelligent enough to realize that the alternatives to remaining at Heinz are quite undesirable. His limited English language skills effectively restrict him to positions which consist entirely of physical activity. The impairment ratings which have been entered into the record appear to be based upon his symptomatic degenerative disc disease. As explained by Dr. Catalona, performance of heavy activity has the propensity to aggravate degenerative disc disease and lumbar instability (Ex. K, pp. 13, 14, 16 and 17). It is found in this case that the injury claimant sustained on October 20, 1990, permanently aggravated those underlying conditions and caused them to become symptomatic. It is further found that there is a wide disparity among the three physicians in regards to their recommendations for activity restrictions. Two have recommended full duty work while Dr. Catalona recommends a 25 pound restriction. These assessments are irreconcilable. When viewed in relation to the claimant's symptomatology and also his actual accomplishments, it is found that he has lost some of his physical capabilities but that those recommended by Dr. Catalona are overly cautious. It is therefore found that the claimant's lack of English language skills makes any impairment whatsoever of his physical capacity a quite serious factor when his earning capacity is evaluated. It is found that he has experienced a 10 percent reduction in his earning capacity as a result of the October 20, 1990 injury. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant's claim for additional healing period or temporary partial disability should be denied in both files. He has not specified any particular periods of time for which he seeks additional recuperation benefits and the record does not show any clear basis for finding an entitlement to additional healing period, temporary total or temporary partial disability benefits. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 Page 5 (Iowa 1974). The claimant has not introduced sufficient evidence to prove that the 1989 injury caused any permanent partial disability. He is therefore not entitled to any additional recovery based upon the June 29, 1989 injury. The employer has fully paid to the claimant every benefit which he is entitled to as a result of that injury. Aggravation of a preexisting condition is one manner of sustaining a compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). 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. There are a number of rules for evaluating industrial disability. No single rule is absolutely conclusive notwithstanding the ruling in the case Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991). The fact that Bearce had returned to work without any activity restrictions and without any loss of income is certainly strong evidence of a lack of industrial disability. The burden of proof differs somewhat when dealing with apportionment of disability for a preexisting condition. That case is not construed as overruling prior precedents which have indicated there can be a loss of earning capacity even though actual earnings have not been reduced. It is determined that Alejandro L. Vasquez has a 10 percent loss of earning capacity and a 10 percent industrial disability under the provisions of Iowa Code section 85.34(2)(u). This entitles him to recover 50 weeks of permanent partial Page 6 disability compensation, 20 weeks more than that which has been voluntarily paid by the employer. It should be noted that the claimant's substandard English language skills makes the degree of industrial disability considerably greater than what it would be if his language skills were comparable to those normally possessed by most Iowa employees. It makes him suitable only for work which consists of physical labor or physical activity. It does not permit him access to any portion of the job market which would otherwise be available to individuals who have better language skills. Since defendants have prevailed in file No. 924090, claimant will not be entitled to recover any costs incurred in that case. Since claimant has prevailed in file No. 970006, he will be entitled to recover costs associated with that proceeding. Those costs are as follows: Filing fee $65; service cost $2; impairment evaluation and report by Dr. Catalona $150; expert witness fee, Dr. Catalona $150; reporting fee for Dr. Catalona's deposition $119.75, for a total of $486.75. ORDER THEREFORE, it is ordered: That in file number 970006 defendants pay Alejandro L. Vasquez fifty (50) weeks of compensation for permanent partial disability at the rate of three hundred fifty and 50/100 dollars ($350.50) payable commencing June 10, 1991. Defendants are granted full credit for the thirty (30) weeks of permanent partial disability compensation previously paid. The remaining twenty (20) weeks are now all past due and owing and shall be paid 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 all claims made in file No. 924090 are denied as are all claims made by the claimant for any other weekly compensation in file No. 970006. IT IS FURTHER ORDERED: That the costs in file No. 924090 are assessed against the claimant. Page 7 IT IS FURTHER ORDERED: That the costs in file No. 970006 in the amount of four hundred eight-six and 75/100 dollars ($486.75) are assessed against defendants. IT IS FURTHER ORDERED: That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1992. ________________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr John D Stonebraker Attorney at Law P O Box 2746 Davenport IA 52809 Mr Greg A Egbers Attorney at Law 600 Union Arcade Bldg 111 E Third St Davenport IA 52801-1596 5-1402.40; 5-1803 Filed September 24, 1992 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALEJANDRO L. VASQUEZ, : : Claimant, : : vs. : File Nos. 924090 : 970006 H. J. HEINZ, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1402.40; 5-1803 Claimant could not identify periods for which he sought additional healing period and temporary partial disability. None was awarded. Claimant with poor English languish skills awarded 10% permanent partial disability even though his earnings had increased since the injury and the evidence was conflicting upon the issue of activity restrictions. He was rated as having a 5 to 7 percent permanent impairment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JIMMIE L. BAILEY, Claimant, vs. File Nos. 970243 & 991508 ROBERTS DAIRY COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Jimmie L. Bailey, claimant, against Roberts Dairy Company, employer, and National Union Fire, insurance carrier, defendants, for benefits as the result of two injuries. One of the injuries occurred on December 3, 1990 when claimant slipped and fell on his back (file number 991508). The other injury occurred on December 8, 1990 when claimant strained his back pulling a heavy stack of milk cartons. A hearing was held in Des Moines, Iowa, on August 27, 1993, and the case was fully submitted at the close of the hearing. Claimant was represented by Max J. Schott. Defendants were represented by Stephen W. Spencer. The hearing, which was scheduled for three hours, actually consumed approximately six and one-half hours and generated a 296 page transcript. The record consists of claimant's exhibits 1 through 76 (minus exhibits 8 through 13), defendants' exhibits A through F, the testimony of Jimmie L. Bailey, claimant, Carol M. Bailey, claimant's wife, Roger Marquardt, vocational rehabilitation consultant for claimant, David Greimann, vocational rehabilitation consultant for defendants, and Lori Lien, claims supervisor. The deputy ordered a transcript of the hearing. STIPULATIONS The parties stipulated to the following matters at the time of the hearing. That claimant sustained an injury on December 3, 1990 when he slipped and fell and injured his back which arose out of and in the course of employment with employer. That claimant sustained an injury on December 8, 1990 to his back and legs while pulling cases of heavy cartons of milk which arose out of and in the course of employment with Page 2 employer. That these injuries were the cause of temporary and permanent disability. That claimant is entitled to and was paid healing period benefits for the period from December 9, 1990 through July 27, 1992 and that claimant's entitlement to healing period benefits is no longer in dispute. That the type of permanent disability, if any, is industrial disability to the body as a whole. ISSUE The sole issue for determination is whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which he is entitled. FINDINGS OF FACT CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY It is determined that the injury was the cause of permanent disability, that claimant has sustained a 45 percent industrial disability to the body as a whole, and that claimant is entitled to 225 weeks of permanent partial disability benefits. Claimant, born June 30, 1960, was 50 years old at the time of these injuries and 53 years old at the time of the hearing. Because claimant was at or near the peak of his earnings career, at least chronologically by age, his industrial disability is greater than it would be for an older or younger employee (Transcript page 22). Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). Claimant has a limited formal education. He dropped out of high school in the ninth grade. He has not obtained a GED. He has not acquired any additional formal education but has learned a number of skills and semi-skills through experience on many of his prior employments (Tran. p. 24). Claimant's lack of formal education tends to decrease his employability which tends to increase his industrial disability, particularly at his age in the lower fifties. At the same time, claimant's excellent work history and past admirable work ethic tends to increase his employability and concommittently decreases his industrial disability. However, an older worker with a back injury without a high school education will find his or her employment opportunities limited. A good work record is helpful but employers will more likely hire a younger and healthier worker before hiring an older, injured and less educated worker. Claimant is probably not suitable for retraining of an Page 3 academic nature but has proven his ability to adapt to and learn job skills through on-the-job training and experience. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). With respect to claimant's past employments, claimant is now foreclosed from performing those functions which require heavy lifting and other strenuous activity. At the same time he has acquired many skills which he could use in other employments which are available in the job market at this time. Claimant's past employments are as follows. Claimant first performed farm work after he dropped out of school in the ninth grade. Claimant would be limited on the farm work that he could perform after these injuries. Claimant was a boiler tender in the Navy where he read charts and gauges, performed calculations and kept records on fuel and fresh water (Tran. p. 25). Claimant is probably capable of performing similar work again if he could find such employment and if he chose to do so. Claimant has been a carpenter and said that he carried 140-pound bundles of shingles up onto a roof. Claimant is now foreclosed by these injuries from performing heavy work. Furthermore, the skilled occupation of carpentry as a general rule requires heavy lifting, bending, stooping and repetitive pounding which claimant is now restricted from doing. Claimant has worked as an over-the-road truck driver of general freight in 17 states. His current restrictions probably foreclose him from most forms of truck driving, especially those that require loading and unloading. Claimant stated that he lifted 200 to 250 pounds as a truck driver (Tran. p. 28). Claimant learned to operate a lathe and become a machinist. Eventually he became employed as a journeyman machinist and worked for one employer for ten years as a machinist. Claimant maintained that as a machinist he lifted 300 pounds of cold steel by himself. Claimant added that lifting weights of over 100 pounds was not uncommon in an average workday (Tran. pp. 29-34). There are transferable skills which claimant used as a machinist which would be helpful to him in finding machinist related work. At the same time, claimant's restrictions foreclose him from being in a position where heavy lifting is required. Claimant has performed work as a heavy equipment operator. He has operated D-9 Cats, backhoes, cherry pickers and cranes. Claimant averred that this job also required him to lift 300-pound pieces of steel (Tran. p. 34). Claimant is probably proscribed by his restrictions from operating heavy equipment because he is foreclosed from performing heavy work. Claimant worked as a machinist a second time Page 4 supervising 65 other employees. In this job he claimed that he routinely lifted 100 to 150 pounds (Tran. pp. 32-42). Claimant is probably capable of supervisory work in areas where he has prior knowledge and experience but he would not be able to do the heavy lifting. Claimant worked in the oil fields in California for seven years as a production superintendent, which meant keeping the wells operating. He said that he fixed some things himself. For other problems, he called in a repair crew. Claimant contended that he lifted pipe joints in this job which weighed 250 to 300 pounds. Claimant's mechanical skills are transferable in some degree. He is prohibited from heavy lifting now. Just prior to this employment claimant drove a truck over- the-road again which involved loading and unloading weights of 200 to 250 pounds by himself without equipment assistance (Tran. pp. 47 & 48). Claimant can no longer do this kind of work without significant job accommodations or modifications. Claimant's past employments are also described in more detail in a number of the exhibits (Ex. 1, p. 3, Ex. 77, & Ex. E). Claimant testified that he did not have and there is no evidence of any significant work limitations prior to these two injuries (Tran. p. 50). Claimant testified that he has never had a workers' compensation claim before these two injuries (Tran. p. 51). This was verified by an investigative check for prior workers' compensation claims by employer through an agency who does this research. The report verified that claimant had no prior workers' compensation claims (Ex. 7). Claimant also had a clean driving record free of violations, suspensions, or convictions. Claimant's application for employment with employer shows no prior injuries, illness, or work limitations. Claimant stated on the application that he was physically capable of manual labor (Ex. 2). A physical examination performed for the Iowa Department of Transportation on October 11, 1990, did not disclose any spinal injuries (Ex. 3). When claimant fell on December 3, 1990, he did not see a doctor and did not lose any time from work. After he strained his back on December 8, 1992, he was examined at the emergency room by Barbara K. Moats, M.D., who diagnosed acute back pain (Ex. 17). An x-ray on December 8, 1990, disclosed (1) mild degenerative changes at L3-4 and 4-5, (2) no spinal compression fractures and (3) some calcification of the distal abdominal aorta (Ex. 18). Dr. Moats referred claimant to Michael J. Makowsky, M.D., an occupational and sports medicine doctor, who took claimant off work on December 9, 1990 (Ex. 19). Claimant has not returned to work since that date (Tran. pp. 55 & 57). Dr. Makowsky ordered an MRI on December 10, 1990, which Page 5 revealed (1) a diffuse bulge at the L4-5 disc without focal herniation as well as (2) hypertrophic facet joint changes and (3) hypertrophy ligamentum flavum changes at L4-5 which produced moderate to marked spinal stenosis (Exs. 20 & 32). Claimant reported pain in both legs to Dr. Makowsky on December 14, 1990 (Tran. p. 27). On December 21, 1990, Dr. Makowsky said that claimant's chief problem was spinal stenosis and degenerative disc disease (Ex. 27). Dr. Makowsky saw claimant several times from December of 1990 to May of 1991. He prescribed medications, physical therapy, work-hardening, a TENS unit and epidural steroid injections. Several times Dr. Makowsky commented that claimant would not be able to return to his former employment or to heavy work. Dr. Makowsky's office notes show that claimant continued to complain of pain but that Dr. Makowsky could find no objective or physical findings to support the reason for his pain (Exs. 26-41). On June 24, 1991, Dr. Makowsky wrote to the disability examiner for the Disability Determination Services Bureau at the Division of Vocational Rehabilitation Services that claimant's diagnoses were (1) degenerative spondylolisthesis at L4-L5 and (2) acquired spinal stenosis. Dr. Makowsky concluded, "I do not think that Mr. Bailey is capable of returning to work at Robert's Dairy. I think he is probably qualified for Light Work; that is: 1. Maximum lifting of no more than 20 lbs. with frequent lifting up to 10 lbs. 2. No repetitive bending at the waist. 3. No repetitive pushing or pulling (Ex. 42, p. 2) On the same date, June 24, 1991, Dr. Makowsky wrote to the insurance carrier representative that claimant had reached maximum medical improvement earlier on May 1, 1991. Dr. Makowsky further stated, You have requested an evaluation for a permanent impairment rating. As we discussed on the telephone, this is very difficult since most of his problem is probably pre-existing. However, his work apparently aggravated his problem. I would like to suggest that his partial-permanent impairment is 10% of the body as a whole with about half of this permanency (5%) being secondary to his work related injury (Ex. 43, p. 1). Dr. Makowsky recommended no further treatment at that time Ex. 43, p. 2). In a letter to claimant's counsel, dated September 25, 1991, Dr. Makowsky stated that claimant's underlying degenerative spondylolisthesis at L4-L5 and spinal stenosis Page 6 were not work-related conditions, however, according to the patient they became symptomatic on December 8, 1990, when he experienced back pain while pulling heavy milk cartons. Dr. Makowsky then stated, "At that time, I felt his work injury aggravated a pre-existing problem." Dr. Makowsky said that based on his recommendation claimant returned to work on April 4, 1991 but that he reaggravated his condition after having returned to work for only five hours (Ex. 47, p. 2). Dr. Makowsky again causally related the employment to this injury in these words, "Within a reasonable degree of medical certainty, the symptom complex currently being experienced by Jimmie Bailey is consistent with the injury that he sustained at Robert's dairy together with his underlying medical conditions previously stated." (Ex. 47, p. 2). Dr. Makowsky repeated his split impairment rating, but added that there is no medical way he could scientifically determine what percent of his impairment was related to this injury versus his underlying condition, but he estimated that 5 percent of the overall 10 percent was work-related (Ex. 47, p. 2). In the course of Dr. Makowsky's treatment he referred claimant to Daniel J. McGuire, M.D., an orthopedic surgeon, who saw claimant on February 18, 1991 and March 18, 1991. On both occasions Dr. McGuire indicated (1) that he did not believe that claimant would be able to return to a heavy manual labor job with or without surgery and (2) he did not believe that surgery was recommended at that time. Then on May 1, 1991, Dr. Makowsky was talking in terms of maximum medical improvement and issuing a permanent impairment rating. At about that same time claimant applied for social security benefits on May 28, 1991. His application was initially denied on August 7, 1991. And it was denied again on September 9, 1991 (Ex. 71). Claimant then returned to see Dr. McGuire on November 14, 1991 indicating that his symptoms were severe enough at that time that he wanted surgical intervention (Ex. 52). Dr. McGuire performed the surgery on December 10, 1991. He described the surgery as follows. Posterior decompression L4-L5 with exploration of the L4, L5, and S1 nerve roots; posterior spinal fusion L4 to L5 with iliac bone graft; posterior segmental instrumentation at L4-L5 with steffe plates; and harvesting of cortical cancellous bone graft right posterior ilium (Ex. 23, p. 1). On August 6, 1992, Dr. McGuire gave the following rating. The permanent partial disability associated with his surgical intervention was 12%. This is based on the decompression and one level fusion. Page 7 He also has some persistent symptoms. Of this, 6% of this is pre-existing disease and 6% of this is related to the aggravation and actual surgical intervention. From my standpoint, he is released to return to work. We are unable to get a good idea of restrictions that we can place on him because he did not complete the FCE. Realistically speaking, he could lift in the 50-70 pound range. I would keep him away from a lot of vibration, such as driving a truck. I would try to avoid excessive bending, lifting and twisting (Ex. 56). The reason that claimant did not complete the functional capacity examination was because the insurance company representative did not authorize payment for the motel reservations for the entire course of his treatment (Tran. pp. 208-213). Claimant, who did not want to be at the evaluation in the first place, because he was already drawing social security benefits as well as workers' compensation benefits, took advantage of the situation and went home. Claimant was examined by his own independent medical examiner, Martin S. Rosenfeld, D.O., on September 15, 1992. In his report Dr. Rosenfeld stated, X-rays brought with the patient as noted in the chart show a single fusion with a double level decompression at L4 and L5. The films of 05/04/92 do not show complete bridging, especially on the left side, but the area is, of course, stable with the plates intact. ... I feel the patient has severe residuals with pain and stiffness, but fortunately has had relief of his radiculopathy. ... In view of the amount of pain and spasm and rigidity that Mr. Bailey is suffering, I doubt that he will be able to return to work doing any type of labor or any type of sedentary work (Ex. 67, pp. 1 & 2). Dr. Rosenfeld assessed his impairment rating as follows. "In regard to your questions, I feel over all that Mr. Bailey has a twenty-five (25%) percent permanent physical impairment to the body as a whole as a result of the build up of spinal stenosis, the on-the-job injury, and subsequent surgery. ... Page 8 Based on the history and x-rays, it is my feeling that a significant amount of his impairment is due to the on-the-job injury although some of his impairment is due to the pre-existing and developmental problems. I would rate his impairment due to the injury at thirteen (13%) percent using the AMA Guides (Ex. 67, p. 2). On May 28, 1993, claimant was examined by Gordon M. Mead, M.D., a board certified orthopedic surgeon since 1979, who was an independent medical examiner for defendants. Dr. Mead stated that claimant moved to Louisiana because it was cheaper to live there. Dr. Mead opined, According to the AMA Guides to the Evaluation of Permanent Impairment, 3rd Edition, this gentleman has a 12% impairment of the whole person. This is a permanent condition. ... He will not be able to return to truck driving. He would not be able to do anything other than essentially light or light/medium type work. He would not be able to do any repeated bending or lifting." (Ex. 68, p. 2). Dr. Mead gave a telephonic deposition shortly before the hearing on August 11, 1993. Dr. Mead stated that the fusion appeared to be solid to him but it was difficult to tell from the plain x-rays (Ex. 74, p. 8). The doctor further related that claimant had almost complete limitation of any motion of his back because of his pain complaints (Ex. 74, p. 9). He did not perform any new x-rays. Dr. Mead said that the total lack of bending was not compatible with the one level fusion, because all of the other levels of the spine should be mobile. He said that fusing one segment would eliminate a small amount of the motion but certainly not to the extent that claimant states his motion was limited. Also, Dr. Mead stated that claimant had pain in his back on range of motion of his hips but he did not know of any anatomical basis for that because there really is no correlation between motion of the hips and back pain (Ex. 74, p. 12). Also, claimant complained of pain in his back on the straight leg raising test which the doctor said did not have any significance because the straight leg raising test is to see if claimant had leg pain from an irritated nerve in his back. To find back pain on straight leg raising really did not mean very much. He said this was not compatible with a one segment fusion (Ex. 74, p. 13). Likewise, he said that the fact that claimant could not heel or toe walk had no significance with respect to a one level fusion because what he was looking for was weakness in the dorsiflexors of the foot or the plantar flexors of the foot (Ex. 74, pp. 12-14). Page 9 Dr. Mead found no neurologic involvement at the time of his examination (Ex. 74, p. 14). Dr. Mead stated that if a person had severe back pain over a long period of time he would expect to find some atrophy of the muscles in the extremity but he did not find any atrophy upon claimant's examination (Ex. 74, p. 14). Dr. Mead explained his terminology of light/medium work, "Light medium work is defined as lifting 30 pounds maximum with frequent lifting and/or carrying of objects weighing up to 20 pounds." The doctor pointed out that he also recommended a restriction against repeated bending or lifting and defined repeated as three times within an hour (Ex. 74, pp. 16 & 17). The doctor said claimant should be allowed to move around and alternate standing, sitting and walking. Dr. Mead said that he was surprised that claimant contends that he could not bend at the waist at all (Ex. 74, pp. 18 & 19). With respect to pain the doctor stated, "He expressed more pain than I would judge to be reasonable for someone who's had that kind of surgery." (Ex. 74, pp. 20 & 23). Roger Marquardt, rehabilitation consultant, performed an evaluation of claimant and made a report on June 22, 1993. He interviewed claimant by telephone. Marquardt questioned whether claimant could work six to eight hours Page 10 per day, five days a week. Therefore because of his continuing severe pain Marquardt said claimant would be restricted from competitive employment of even a light or sedentary nature (Ex. 70, p. 4). Marquardt testified at the hearing that he was relying on claimant's testimony as to this limitation (Tran. p. 180). He also stated that an older worker has more difficulty in adjusting to new and unique working situations (Tran. p. 180). He recommended against schooling (Tran. p. 181). He said that claimant's limited education makes rehabilitation more difficult (Tran. p. 181). Marquardt was asked and answered as follows, Q. If we accept Mr. Bailey's subjective complaints of pain as you've heard them testified to today, is there work in the competitive employment sector that Mr. Bailey can perform? A. In my opinion, no, sir. ... Q. What in particular are you focusing on? What are the particular limitations that are most meaningful for you in that regard with respect to his testimony? A. The person's ability to sustain a work task at a competitive rate, six to eight hours a day, 40 hours a week." (Tran. pp. 200 201). The difficulty with Marquardt's opinion is the fact that it is based almost entirely upon claimant's subjective complaints of pain and inability to work. On August 12, 1993, Sonya K. Simms, a vocational consultant for Crawford and Company, in Shreveport Louisiana concluded there were a number of jobs which claimant could perform in that locality (Exs. C & D). On August 13, 1993, David L. Greimann, another vocational consultant for Crawford and Company in Des Moines, Iowa concluded that when claimant's work restrictions were combined with the wide range of skills that he has developed in several industries that there are a number of positions available which claimant could perform within his medical restrictions. Like Simms, he gave a listing of some of the jobs. Greimann added that these jobs are typically within the light duty lifting range which most of the physicians said claimant could perform (Exs. A & B). At the time of Marquardt's telephone examination of claimant he extracted a number of subjective physical limitations that claimant related to him (Ex. F, p. 16-20). Marquardt did take into consideration Dr. Rosenfeld's evaluation, who was a one-time examiner for the purposes of litigation (Ex. F, p. 37). He also took into consideration the information of the Social Security Administrative Law Judge. However, the administrative law judge found as follows, Page 11 The claimant has the residual functional capacity to perform the physical exertional and nonexertional requirements of work except for lifting and carrying more than five pounds; sitting more than 15 to 20 minutes at a time; standing more than 15 to 20 minutes at a time; walking more than one-half block; any climbing on ladders, ropes, or scaffolds; any bending; more than occasional balancing, stooping, crouching, crawling; and any repetitive use of push and pull controls (Ex. 71, p. 5). However, these restrictions were not voiced by any of the doctors in this case or any of the vocational rehabilitation consultants in this case. Therefore this deputy has no direct evidence from any professional medical authority that these limitations are anything other than what claimant subjectively feels he can and cannot do. The vocational rehabilitation person who appeared at the social security hearing has not given any testimony in this case. And if she had testified to the above quotation it would still be at odds with the other medical and vocational rehabilitation evidence introduced into evidence in this case, except for Mr. Marquardt's acceptance of these limitations. Greimann testified at the hearing that he did not personally interview claimant (Tran. p. 219), but rather examined most of the significant medical evidence in this case. Greimann testified that it was his practice with respect to subjective complaints of pain to encourage the person to seek medical treatment for them (Tran. p. 222). He said they need to be evaluated by the appropriate medical professionals if they are of a medical nature (Tran. p. 223). Greimann stressed that the majority of physicians concluded that claimant could perform medium level work which is defined by the United States Department of Labor as ranging from 20 to 50 pounds (Tran. p. 225). He found that claimant had a number of transferable skills (Tran. p. 226), that qualified claimant for a number of jobs (Tran. p. 227). He itemized a number of these jobs (Tran. p. 229 & 230). He said a large number of jobs were available in both the light and medium category (Tran. p. 232). With respect to claimant's age he said it would not decrease claimant's access to the labor market because there was a high demand for mature workers with a lot of experience by employers today (Tran. pp. 234 & 235). Greimann said classifications of work top out at the very heavy classification at 100 pounds. There are no classifications for 200 or 300 or more pounds (Tran. p. 236). He said there are virtually no jobs that have that requirement (Tran. p. 236). He has never heard of a machinist being required to lift 300 pounds in his total of 15 years of vocational rehabilitation experience (Tran. p. 240). Greimann did a labor market survey in the Des Moines area and found a number of jobs for machinists. He said that they are wanted in other states also (Tran. pp. 243 & Page 12 244). A number of the machines are now what he described as CNC (computer numerical controlled) machines (Tran. p. 244). He said claimant's job history shows that he is adaptable to new lines of work (Tran. p. 244). Machinist jobs range between $7 per hour and $20 per hour (Tran. 246). Claimant was earning $11 per hour at the time of this injury (Tran. p. 52). He said the last survey for Polk County showed that machinists made $13.97 per hour which is an annual salary of $29,057 (Tran. p. 247). Greimann acknowledged his evaluation did not take into account pain (Tran. p. 253). After hearing claimant's testimony he said that he would not change his opinion (Tran. p. 255 & 260). Dr. McGuire testified by deposition shortly before the hearing on August 11, 1993, that he is a board certified orthopedic surgeon with subspecialty interest and training in adult spine problems. Dr. McGuire stated that prior to his surgery he would have rated claimant's impairment at zero because the x-ray changes predated the on-the-job injury (Ex. 73, p. 17). He said that on November 14, 1991, claimant was hurting bad enough that he wanted surgery (Ex. 73, p. 18). The doctor said that claimant's MRI did not show a herniation of a disk and that fit because he did not have any neurological deficit (Ex. 73, p. 19). Dr. McGuire said the pressure on the nerve roots was coming from behind. He said it was not a herniated disk in front pushing backwards. Therefore, he did a posterior nerve root decompression and a fusion at L4-L5 where he had the worst problems (Ex. 73, p. 20). Dr. McGuire was very critical of the finding of the Social Security Administrative Law Judge. When it was presented to him Dr. McGuire stated, "I don't mean to hurt your feelings, but who wrote that crock of shit?" Dr. McGuire then proceeded to criticize these findings in some detail (Ex. 73, p. 32). The doctor was surprised to learn that somebody had made this evaluation while he was still treating claimant (Ex. 73, p. 33). In his deposition Dr. McGuire talked about restrictions against working around vibrating equipment and to avoid lifting things more than 20 to 40 pounds maybe 50 pounds. He said he should avoid repetitive bending, lifting all day long (Ex. 73, p. 36). Dr. McGuire could not explain why claimant could not bend at the waist at all (Tan. p. 37). He said that bending is performed at the hips and he never claimed any injury to his hip sockets (Ex. 73, p. 38). Dr. McGuire repeated that claimant's impairment based on the AMA Guides would be about 12 percent, maybe 14 percent. He added that about a half or two-thirds of this impairment would be related to the work incident (Ex. 73, p. 42). One-half of 14 percent is 7 percent. Two-thirds of 14 percent would be about 9 percent. Dr. McGuire granted that something caused his back condition to become symptomatic (Ex. 74, p. 44). He said he would rely on Dr. Makowsky's records as to what caused that (Ex. 73, p. 45). Dr. McGuire, granted that claimant slipped Page 13 and landed on his back and that appears to be a work-related incident. The doctor agreed that a significant portion of claimant's disability would relate to the two incidents at work (Ex. 73, p. 47). Dr. McGuire agreed that he was doubtful from the beginning that claimant would be able to return to work for employer or to any kind of labor that he was performing at the time of this injury (Ex. 73, p. 51). Dr. McGuire was skeptical of claimant's pain complaints for the reason that a neurological injury was never identified and he never really documented any true damage like a neurological deficit (Ex. 37, p. 57). Dr. McGuire agreed that he could live with Dr. Makowsky's weight restriction of 15 to 20 pounds (Ex. 73, p. 60). Contrary to Dr. Rosenfeld, Dr. McGuire never found any spasm but he did find rigidity because claimant asserted that he was not able to bend at the waist (Ex. 73, p. 61). In summary then the permanent impairment ratings are as follows: (1) Dr. Makowsky 5 percent, (2) Dr. McGuire 6 percent, 7 percent and 9 percent, (3) Dr. Rosenfeld 13 percent, and (4) Dr. Mead 12 percent. All of the doctors agreed that claimant was foreclosed from manual labor in the heavy work and very heavy work classification that claimant had performed most of his adult life. Most of the doctors agreed that claimant could perform light or light/medium classification of work. Dr. Rosenfeld thought claimant should be restricted to sedentary work. Thus, there is substantial evidence that claimant is capable of performing medium work, which in the opinion of this deputy is the ability to lift up to 50 pounds occasionally and 20 pounds frequently. It has been demonstrated that there are several jobs for this work classification in the competitive labor market. It has been further demonstrated that claimant is capable of light work which in the opinion of this deputy would be lifting up to 20 pounds occasionally and lifting 10 pounds frequently. There are even more jobs available in the competitive labor market for this job classification. With respect to impairment ratings and restrictions the opinions of Dr. Makowsky and Dr. McGuire are preferred over the opinion of Dr. Rosenfeld, who was a one time examiner, who evaluated claimant for purposes of litigation. Dr. Makowsky and Dr. McGuire were responsible for the ultimate success or failure of claimant's treatment. Their opinions are reinforced by that of Dr. Mead. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). With respect to vocational rehabilitation counselors the opinions of Greimann and Simms are preferred over the opinion of Marquardt. Marquardt admits that his opinion is focused on the subjective symptoms that claimant related to him as well as the opinion of Dr. Rosenfeld and the Social Security Administrative Law Judge. There is no evidence in this record that any medical professional care provider in the evidence of record in this case found the subjective Page 14 findings that the administrative law judge found in making his determination. Claimant did not seriously seek work. On the contrary, he sought social security disability benefits rather than attempt to return to work. Claimant has not been motivated to return to work. This appears to be a conscious choice on his part. He is certainly entitled to make this decision and has good reasons for doing so. However, employers are responsible for the reduction in earning capacity caused by the injury. They are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). In most cases, an employee making a claim for industrial disability will benefit by showing some attempt to find work. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner 104 (1976); Cory v. Northwestern States Portland Cement Company, Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Claimant asserts that he is permanently and totally disabled due to his subjective symptoms of pain. This proposition has been rejected by the industrial commissioner numerous times and these precedents would fill a large book. A long time standard of the industrial commissioner is that pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981). Dr. Mead found that several of claimant's complaints did not correlate with the type of injury he sustained for a one level fusion. He had absolutely no explanation for claimant's inability to bend. He further stated that one or more of claimant's lower extremities should be atrophied if claimant has had as much pain as he asserts for as long as he asserts. But he said there was no atrophy in his lower extremities. An employee's approaching retirement may also be taken into consideration. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 13-5 at page 131. Claimant has moved home to Louisiana where he has purchased a home on a lake and operates a boat with power equipment with a power lift to get it into and out of the water. He and his wife also maintain a garden and flower beds. Claimant's earnings at the time of the injury were $11 per hour. Greimann testified that claimant could earn someplace between $7 and $20 an hour at the present time. Greimann said that claimant could earn $13 an hour in certain machinist jobs. Thus, even though claimant has a substantial loss of earning capacity, his actual earnings loss is either Page 15 negligible or none. Wherefore, based upon (1) claimant's age in the early fifties, (2) his lack of a high school education but also considering his transferable skills as a machinist, (3) considering that his permanent impairment ratings range from 5 percent by Dr. Makowsky, somewhere between 6 percent and 7 or 9 percent by Dr. McGuire, 12 percent by Dr. Mead and 13 percent from Dr. Rosenfeld, (4) based upon the fact that claimant is foreclosed from returning to his employment with this employer and that his job market has been reduced from all of the jobs that were available in the very heavy classification and heavy classification and he is now restricted to either the medium or light/medium or the light classification of jobs, (5) based on the fact that there are jobs available in the competitive employment market according to Simms and Greimann, (6) based upon the fact that claimant has not seriously sought employment since this injury and it appears as though claimant has retired, (7) that claimant has elected to receive social security disability benefits, has returned home and appears to be living in retirement, (8) based upon the fact that claimant has not made a diligent search to find employment, (9) based upon all the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985) and (10) applying agency expertise (Iowa Administrative Procedure Act 17A.14(5) it is determined that claimant has sustained a 45 percent industrial disability to the body as a whole and is entitled to 225 weeks of permanent partial disability benefits. Although claimant's work history is excellent and his work ethic prior to this injury were commendable this injury did result in an extensive spine surgery which has severely decreased claimant's employability because of the fact he is no longer able to perform manual labor, heavy and very heavy types of work as he has performed for most of his life prior to this injury. Taken into consideration also is that claimant has several severe preexisting back conditions and a heart condition that he was not aware of until the time of this injury. It is considered that this injury was not the entire cause of claimant's lack of employability, access to the labor market and loss of earnings capacity. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant did sustain the burden of proof by a preponderance of the evidence that these two injuries of December 3, 1990 and December 8, 1990 were the cause of permanent impairment and permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). Page 16 That claimant has sustained the burden of proof by a preponderance of the evidence that he sustained a 45 percent industrial disability to the body as a whole and is entitled to 225 weeks of workers' compensation benefits. Iowa Code section 85.34(2)(u). ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the stipulated rate of three hundred six and 41/100 dollars ($306.41) per week and in the total amount of sixty-eight thousand nine hundred forty-two and 25/100 dollars ($68,942.25) commencing on July 28, 1992, as stipulated to by the parties. That defendants are entitled to a credit for permanent partial disability benefits paid to claimant prior to hearing which at that time totaled fifteen thousand six hundred ninety and 39/100 dollars ($15,690.39) and any additional permanent disability benefits paid to claimant since the time of hearing. That interest will accrue pursuant to Iowa Code section 85.30. That all accrued benefits are to be paid in a lump sum. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the transcript of hearing, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Max Schott Attorney at Law 6959 University Ave. Des Moines, IA 50311 Mr. Stephen W. Spencer Attorney at Law 218 6th Ave, Ste 300 P.O. Box 9130 Des Moines, IA 50306 1803 Filed March 31, 1994 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JIMMIE L. BAILEY, Claimant, vs. File Nos. 970243 & 991508 ROBERTS DAIRY COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE, Insurance Carrier, Defendants. ___________________________________________________________ 1803 Claimant, in his early fifties, with a ninth grade education, who was foreclosed from most of his prior employments because he was restricted to light to medium work, with permanent impairment ratings from 5 percent to 13 percent, who appeared to be retired after this injury on social security disability, who had a prior excellent work history and work ethic, was awarded a 45 percent industrial disability. Claimant contended that he was permanently and totally disabled based on intractable pain. His contention was rejected because his pain was not supported by any objective evidence, but on the contrary, many of his complaints did not track with common medical experience and knowledge. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JOYCE HOSTETTER, File Nos. 970497 Claimant, 985188 985189 vs. PARKVIEW CARE CENTER, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Joyce Hostetter, against her former employer, Parkview Care Center, and its insurance carrier, Employers' Mutual Insurance Companies. A hearing was held before the undersigned deputy industrial commissioner on August 25, 1994, at Oskaloosa, Iowa. The record in the case consists of testimony from the claimant, and Janice Orndoff (defendant employer's administrative secretary); and, joint exhibits 1-6. ISSUES For agency file number 985188 (alleged injury date of January 10, 1991), the parties submitted the following issues for resolution: 1. Whether claimant sustained an injury on January 10, 1991, which arose out of and in the course of her employment; 2. Whether the injury caused a permanent disability; and, 3. Whether claimant filed her petition within two years of the date of the injury, as governed by Iowa Code section 85.26. It should be noted that no workers' compensation benefits were paid to claimant for this injury date. For agency file number 985189 (alleged injury date of May 10, 1991), in addition to the issues listed above, the parties submitted the following additional issue for resolution: Page 2 1. Whether claimant's injury is to a scheduled member, or to the body as a whole. For agency file number 970497 (alleged injury date of February 12, 1991), the parties submitted the following issues for resolution: 1. Whether claimant is entitled to industrial disability benefits. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Joyce Hostetter, was born on July 30, 1937. At the time of the hearing, she was 57 years of age. She is married to James Hostetter. Claimant completed the eighth grade in school. She attended courses at Indian Hills Community College and obtained a certification as a nurse's aid in 1986. Employment history includes positions as private nursing for two years; as a nanny for 5 years; and, as a certified nurse's aid for 9 years. Claimant worked for the defendant employer from October of 1990 to June of 1991. On January 10, 1991, claimant was working for the defendant employer. She and a coworker (Mindy) were attending to a resident, when Mindy accidentally pushed the bed, which hit claimant's right leg, specifically the right knee. Claimant reported the incident to Sue Sedore, the supervisor, but did not secure any medical attention. Claimant did not miss any time from work as a result of the accident. At the hearing, claimant stated that she occasionally takes Motrin for pain in the knee, which "comes and goes." On February 12, 1991, claimant was taking out the garbage, which was contained in a plastic garbage sack. She fell on the way to the dumpster, and landed on her back. She filled out an accident report, and was sent to Donald Berg, M.D., an orthopedic specialist. His notes indicated that a CT scan performed in July 1991 showed evidence of a herniated disc at the L5-S1 level and a bulging disc at the L4-5 level. After a trial period of epidural injections, claimant underwent laminectomies to repair both discs. These were performed on September 5, 1991. (Joint Exhibit 1, p. 8) She was released to return to work, with a 50- pound lifting restriction, on January 20, 1992. (Jt. Ex. 1, p. 7) Following the surgeries, claimant had several episodes of falling. In March, 1992, Dr. Berg's notes provide the following information: Page 3 I feel because of her symptoms she is having although she is not having leg symptoms per say [sic] outside of the giving way. I feel an MRI could be done to see if there is an occult problem here and will schedule this but I do not feel she will need any surgical procedure in the future. (Jt. Ex. 1, p. 7) Chad Abernathey, M.D., reviewed the results of the scan, and found no specific neurologic dysfunctions or neural compressions. He favored conservative treatment. (Jt. Ex. 5) In July of 1992, Dr. Berg was of the opinion that claimant had a 9 percent impairment to the body as a whole due to the herniated discs and resulting surgeries. (Jt. Ex. 1, p. 5) In October of 1992, he indicated to the social security disability determination board that claimant was restricted to lifting only 20 pounds on an occasional basis. Apparently, some of the limitations addressed claimant's arthritic condition in her cervical spine. (Jt. Ex. 1, p. 6) In January of 1993, Michael Pogel, M.D., conducted an independent medical evaluation, and offered that claimant had "an impairment of 11% to the whole body, as applied to her back." (Jt. Ex. 2, p. 5) He did not relate to the back injury any of the problems claimant was experiencing with her feet. (Jt. Ex. 2, p. 1) In August of 1994, Dr. Berg provided the following information: I reviewed your list of activities which she would be involved in and I would state most of these on the cleaning schedule I think she could do. The only problems she would have is if she has to twist and bend to get into these areas to do the cleaning and doing frequent twisting motions I think she would have problems with. Most of these types of activities one would allow her to do but would have top go on the basis of how she feels if she continued to do these. They certainly are not heavy activities but I am concerned some about the twisting motion. As far as setting the tables, wrapping the silverware and setting up carts, I think this is possible for her. I feel she would have trouble with sweeping floors and activities which would require a lot of bending and twisting of her back when she is doing cleaning such as leaning over chairs or tables. I think if she stays under the 10 lb. lifting limit I think this would be advisable and also avoiding the frequent bending and twisting activities. (Jt. Ex. 1, pp. 1-2). Page 4 The list of activities referred to by Dr. Berg are included as joint exhibit 1, pages 3-4. In May of 1991, claimant noticed pain in both feet, which manifested itself after she was bumped by the bed in the knee in January of 1991. Various physicians' notes with respect to treatment of this condition are found at joint exhibit 4. While the notes are somewhat confusing, and the physicians involved ran numerous tests to address claimant's myriad of complaints (ranging from wrist pain, shoulder and neck pain, ulcers, leg pain and swelling, Lyme disease, etc.), the final diagnosis on the feet seems to be arthritis and/or metatarsal disease. Claimant has had a full array of physical problems, including tumors on one lung (for which she underwent surgery), connective tissue disorder, hip and leg pain, thumb and right arm pain, etc. (Jt. Ex. 3). ANALYSIS AND CONCLUSIONS OF LAW With respect to agency file number 985188, the first issue to address is whether claimant sustained an injury which arose out of and in the course of her employment. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. 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 evidence supports a finding that on January 10, 1991, claimant was performing her regular job duties at the Parkview Care Center, which included attending to residents and their hospital beds. A coworker accidentally pushed a bed into claimant's shin. Claimant reported the incident to the appropriate people. Apparently, the pain was not severe enough to warrant medical treatment, but nonetheless, claimant did sustain an injury which arose out of and in the course of her employment. The next issue to address is whether claimant filed her petition within the two-year statute of limitations, found at Iowa Code section 85.26. An original proceeding for benefits must be commenced within two years from the date of the occurrence of the injury for which benefits are claimed or within three years from the date of the last payment of weekly compensation benefits if weekly compensation benefits have been paid under Iowa Code section 86.13. Section 85.26(1). A Page 5 proceeding in review-reopening must be commenced within three years from the date of the last payment of weekly benefits under either an award for payments or an agreement for settlement. Section 85.26(2). The "discovery rule" may extend the time for filing a claim where weekly benefits have not yet been paid. The rule does not extend the time for filing a claim where benefits have been paid. Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980). Under the rule, the time during which a proceeding may be commenced does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of the condition. The reasonableness of claimant's conduct is to be judged in light of the claimant's education and intelligence. Claimant must know enough about the condition to realize that it is both serious and work connected. Orr, 298 N.W.2d at 261; Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). Failure to timely commence an action under the limitations statute is an affirmative defense which defendants must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). Claimant was injured on January 10, 1991. She filed her petition on April 8, 1993, which is more than two years after the injury. As a result, her petition is dismissed. With respect to file number 970497, the only issue to address is the extent of claimant's 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service 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 disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter 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 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; Page 6 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. 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. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. 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, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant is 57 years of age. She has an eighth grade education. Retraining for any type of position would be highly unlikely. Her overall physical condition is very poor; some of her ailments are directly related to the work injury of February of 1991, and some were preexisting. Her recovery from the back surgery seemed to progress well, with no major complications or setbacks noted in the record. Most of claimant's work experience, which apparently spans approximately 15 years, has been in the nursing area, either as a private nurse or certified nurse's aid. Currently, claimant has lifting restrictions including no lifting of more than 20 pounds on an occasional basis. Obviously, nurse's aid work is more demanding, and requires lifting, pushing or pulling of more than 20 pounds on a regular basis. The employer has not reinstated claimant, although claimant appears very reluctant to return to work. After considering all of the factors enumerated above, it is determined that claimant has sustained a 35 percent industrial disability. Agency file number 985189, the petition is dismissed. There is no evidence that claimant's foot problems are associated with any work injuries. ORDER THEREFORE, it is ordered: Page 7 That claimant take nothing for file numbers 985188 and 985189. That defendants shall pay claimant one hundred seventy- five (175) weeks of permanent partial disability benefits at the rate of one hundred fifty and 38/100 dollars ($150.38) per week commencing July 5, 1992. That defendants shall pay accrued benefits in a lump sum, and shall receive credit for benefits previously paid. That defendants shall pay interest on the award, as governed by Iowa Code section 85.30. That defendants shall pay the costs of this action. That defendants shall file a claims activity report as required by the agency. Signed and filed this ____ day of October, 1994. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies To: Mr H Edwin Detlie Attorney at Law 114 N Market Ottumwa IA 51501 Mr Steven E Ort Attorney at Law 121 W Main St New London IA 52645 5-1803 Filed October 26, 1994 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JOYCE HOSTETTER, File Nos. 970497 Claimant, 985188 985189 vs. PARKVIEW CARE CENTER, 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 awarded 35% industrial disability.