BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DONALD BAKER, Claimant, vs. File No. 980571 HUMBOLDT SAUSAGE CO., A P P E A L Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed November 21, 1994 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Defendants do not seek a credit under Iowa Code section 85.38(2) for short term disability benefits paid, but do seek such a credit for long term disability benefits paid. Defendants are entitled under 85.38(2) to a credit for the "amount" paid. That section does not speak in terms of weeks. Defendants are entitled to a credit against the award for the amount of long term disability benefits paid to claimant, after taxes, on a dollar for dollar basis. See Lytle v. Hormel Corporation, (App. June 12, 1985). Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of May, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 Sixth Street P O Box 209 Waukee, Iowa 50263-0209 Ms. Judith Ann Higgs Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102-3086 1701 Filed May 31, 1995 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONALD BAKER, Claimant, vs. File No. 980571 HUMBOLDT SAUSAGE CO., A P P E A L Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 1701 Credit under 85.38(2) granted as a dollar for dollar basis, not number of weeks. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONALD BAKER, Claimant, vs. File No. 980571 HUMBOLDT SAUSAGE CO., A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Donald Baker, claimant, against Humboldt Sausage Company, employer, hereinafter referred to as Humboldt, and Home Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on December 10, 1990. On November 1, 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. An employee-employer relationship existed between claimant and Humboldt at the time of the alleged injury. 2. If defendants are liable for the alleged injury, claimant is entitled to temporary total or healing period benefits from December 11, 1990 through April 23, 1991. 3. If the alleged injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. If permanent partial disability benefits are awarded, they shall begin as of April 24, 1991. 5. At the time of injury claimant's gross rate of weekly compensation was $365.00; he was married; and, he was entitled to two exemptions. Therefore, claimant's weekly rate of compensation is $232.60 according to the Industrial Commissioner's published rate booklet for this injury. 6. The medical expenses requested by claimant at the hearing are fair and reasonable and causally connected to the medical condition upon which the claim herein is based but that the issue of their causal connection to any work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disability benefits, and III. The extent of claimant's entitlement to medical 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 injury and disability. From his demeanor while testifying, claimant is found credible. Claimant worked for Humboldt from June 1978 until the alleged work injury herein in various manual labor jobs involved in the processing of meat products. Claimant testified that all of the jobs he held at Humboldt were physically demanding. At the time of the alleged injury, claimant was working in the dry room hanging meat. This job involved a considerable amount of repetitive bending over, lifting, and twisting while handing sticks of meat, weighing 40-60 pounds each, to other employees both below and at shoulder height. It is found that this job placed stress on the neck from head movement in the form of repetitive stretching and turning. Claimant left his employment at Humboldt at the time of the alleged work injury and never returned upon the recommendations of Thomas Wilson, M.D., a treating physician. On or about December 10, 1990, after handing meat, claimant and his fellow employees in the dry room crawled to an adjacent work area and after standing up, claimant became faint, dizzy and weak and began to perspire excessively. His neck became stiff and he developed nausea. He also stated that his left arm and foot began to ache. Claimant stated to physicians that he had suffered from severe headaches for three weeks prior to this incident. Claimant stated that due to these complaints he ended his work and immediately sought medical treatment at a local hospital emergency room to find out what was going on. Claimant was then hospitalized for testing. After his discharge, claimant had subsequent episodes and today complains of continued symptoms of dizziness after quick head movements, headaches, arm and shoulder aching, and numbness in the buttocks and left foot. As his job involved working in high areas and repetitive stretching of the neck, upon the recommendations of Dr. Wilson, he has not returned to his former job at Humboldt. This was not the first time claimant experienced similar complaints of nearly fainting and excessive sweating in conjunction with headaches. Claimant suffered near faintness, weakness, left shoulder discomfort in July 1983 and he sought medical treatment. At that time, physicians could offer no cause for these complaints and thought it may be due to excessive sugar levels in claimant's body. Three months later he was diagnosed as suffering from cephalic with a reported history of headaches. In 1985 he suffered from a two week bout with headaches and in 1989 he complained of a sudden onset of a migraine type of headache. At hearing, claimant testified that his past headaches differed greatly from those he has experienced in the three week period before the December 10, 1990 incident at work, not only in intensity, but in the location of the pain in his head. The fighting issue in this case is whether or not claimant suffered any work injury on December 10, 1990. Claimant relies upon the opinions of Dr. Wilson, a board certified neurologist, who examined claimant initially during the December 1990 hospitalization and again in January, 1991. According to Dr. Wilson, claimant suffered a vertebral artery dissection or stroke which was evidenced by his headaches during the three week period prior to December 10, 1990. The doctor states that his dissection or breakdown of the artery wall ultimately led to a blockage and the symptoms complained of by claimant. He also opines that this condition was caused by claimant's strenuous lifting and use of his neck while working in his job at Humboldt. The defense relies upon the views of J. W. Freeman, M.D., a neurosurgeon. According to Dr. Freeman, his views were shared with his associate K. Gene Koob, M.D., another neurosurgeon, who agrees with him. The defense has also sought causal connection opinions from Paul From, M.D., an internist, and another board certified neurologist, Joel Cotton, M.D. Both Drs. From and Cotton were retained by defendants solely for litigation purposes. Claimant was initially seen by Dr. Freeman after the first hospitalization by his family physician, Steve Carlson, D.O. Only the depositions of Drs. Wilson, From and Cotton were submitted into evidence. Dr. Freeman states in written reports that he believes that claimant may have suffered migraine headaches on December 10, 1990 and the episodes, rather than artery dissection, especially in light of a history of prior headaches. Drs. From and Cotton also disagree with the views of Dr. Wilson. At first glance, one would expect that the weight of evidence is against claimant as only one physician out of four support the claim of injury. However, decisions of this deputy are not made on the basis of sheer volume of opinion but their quality. The greater weight of the credible evidence in this case lies in favor of claimant's claim. First, the views of Dr. Wilson are unequivocal and strongly supportive of claimant's claims herein. His views are based on multiple, very thorough examinations upon his neurological findings from personal observation during these exams. Given his length of experience and superb qualifications, his views cannot be taken lightly. On the other hand, each and every opinion expressed by those physicians relied upon by the defense are significantly flawed and must be rejected in each case. As explained in his deposition, crucial to Dr. Wilson's opinions, was a subsequent review in March 1991 of angiographic studies performed during the December 1990 hospitalization by David E. Tubman, M.D., and which were also viewed by Dr. Wilson personally which demonstrated radiographic evidence consistent with Dr. Wilson's diagnosis. Despite several reports detailing various diagnostic studies during the December 1990 hospitalization by Dr. Freeman, no mention is made by him of any review of angiographic studies. Consequently, this deputy commissioner is uncertain whether Dr. Freeman or his associate had ever seen these studies. Also, there is no question that neither Dr. Freeman or his associate had the benefit of the subsequent reviews by Dr. Wilson and Dr. Tubman in March 1991. Finally, although claimant at hearing admitted to prior headaches, these differed from headaches he experienced prior to and after December 1990. Also, Dr. Wilson was aware of these past headaches, his current headaches and other events and did not retreat from his diagnosis. As Dr. Freeman did not have the benefit of subsequent examinations; may not have seen the angiographic studies; and, definitely did not have the benefit of subsequent reviews of those studies, his views cannot be given greater weight over the other physicians rendering opinions in this case. Turning to the views of Drs. From and Cotton, it is clear that they were defense retained one time evaluators whose opinions at onset cannot be given the same weight as a treating physician. However, apart from that aspect, their views are rejected on the basis of the quality of their opinions. Dr. From is not a neurologist but an internist. As clearly pointed out by Dr. Cotton, the diagnosis of vertebral arterial dissection is primarily a call for neurologists as it involves neurological testing. Although Dr. From is certainly a well qualified physician and internist, his views cannot stand up to those of a neurologist on diagnosing these types of conditions. Therefore, we are down to a judgment call between two board certified neurologists, Drs. Wilson and Cotton. Again, Dr. Cotton is only a one-time evaluator and did not have the benefits of multiple examinations of claimant's symptoms. However, both had equal assess to the results of neurological testing, including the March review of the angiographic studies and both based their opinions on more recent exams. However, after a careful reading of both depositions, Dr. Wilson's views must be given greater weight over those of Dr. Cotton for a variety of reasons. First of all, Dr. Cotton appeared quite combative with claimant's counsel when his views were challenged. As a result he never fully explained why he rejected the findings in the review of angiographic studies. He also makes mention on more than one occasion of a supposed initial view of Dr. Wilson during the December 1990 hospitalization that claimant had no dissection. However, such an opinion does not appear of record and is not mentioned in any of the hospital records or those of Dr. Freeman. Finally, and most importantly, Dr. Cotton rejects the proposition that dissection can be caused by strenuous activity at work as opposed to blunt trauma but only on the basis that he had not seen this in his practice. In other words, if he has not seen it, it does not exist. Such a narrow viewpoint must be rejected. Even Dr. From referred to several credible research articles on such a possible causal connection. Therefore, the views of Dr. Wilson are found to be the most credible and sufficient to support a finding of an injury on December 10, 1990 which arose out of and in the course of claimant's employment. Given the finding of a work injury and the stipulations of the parties with reference to temporary weekly and medical benefits, no further findings are necessary on such issues. With reference to claimant's industrial disability, given the views of Dr. Wilson in his April 21, 1992 letter report, joint exhibit 11, it is found that the work injury of December 10, 1990 is a cause of a significant permanent impairment to the body as a whole. The exact percentage is unimportant in this industrial case. More importantly, claimant is permanently restricted by his primary treating physician, Dr. Wilson, from returning to his dry room job at Humboldt. In addition, claimant is restricted from any other job involving repetitive and strenuous neck movements. Although claimant had prior carpal tunnel syndrome and a rotator cuff condition, claimant had no prior permanent impairment according to the medical records submitted into evidence. Although claimant cannot return to his work in the dry job, the record is a little hazy on his abilities to perform other jobs at Humboldt. At hearing he expressed no prior problems with many of his past Humboldt jobs. There was some evidence to suggest claimant considered returning to other jobs but did not do so. On the other hand, Humboldt never actively recruited claimant for suitable employment subsequent to the injury. Prior to his Humboldt employment, claimant was a auto body and frame repair person which required lifting tires. He also was a motorcycle mechanic which require lifting. Obviously, these jobs require strenuous neck movement. However, for a considerable amount of time he was a service manager at the motorcycle shop. Claimant is 44 years of age. Claimant has a high school education. A vocational assessment was procurred by defendants which revealed numerous transferable skills and the ability to return to the work force but active vocational rehabilitation was not pursued. Claimant has not actively sought replacement employment but is currently in the process of retraining to be a radiologist. Claimant is expected to graduate and obtain an Associate of Science Degree next summer. It is found that it is likely he will complete this program as currently he is not experiencing any difficulties with attendance or the program's intellectual demands. Claimant today has a 3.0 average grade level. Claimant expects to find employment at least in the $20- 24,000 range with potential for higher salaries upon a specialization. From examination of all of the factors of industrial disability, it is found that the work injury of December 10, 1990 was a cause of a 20 percent loss of earning capacity. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincided with the time claimant was finally compelled to give up his job. 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 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). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (1980). In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, a work injury was found on December 10, 1990 based primarily upon an analysis of controverted medical opinion. Although claimant experienced pain for three weeks prior to this time, the actual injury did not occur until the onset of more severe symptoms preventing further work. II. As the claimant has shown that the work injury was a cause of a 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., Vol. 1, No. 3 Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision, February 28, 1985). In the case sub judice, it was found that claimant suffered a 20 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 100 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. As a compensable work injury was found to have occurred, an award of healing period benefits will be made pursuant to the parties' stipulations in the hearing report. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. As a work injury was found, the medical benefits listed in the hearing report will be awarded pursuant to the parties' stipulations. ORDER 1. Defendants shall pay to claimant one hundred (100) weeks of permanent partial disability benefits at a rate of two hundred thirty-two and 60/l00 dollars ($232.60) per week from April 24, 1991. 2. Defendants shall pay to claimant healing period benefits from December 11, 1990 through April 23, 1991 at the rate of two hundred thirty-two and 60/l00 dollars ($232.60) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report. 4. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 5. Defendants shall receive credit for previous payments of benefits under the non-occupational group insurance plan under Iowa Code section 85.38(2), less any tax deductions, if any, from those payments. 6. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. 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. 8. 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 November, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 6th St PO Box 209 Waukee IA 50263 Mr. Judith Ann Higgs Attorney at Law 701 Pierce St STE 200 PO Box 3086 Sioux City IA 51102-3086 5-1803 Filed November 21, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONALD BAKER, Claimant, vs. File No. 980571 HUMBODLT SAUSAGE CO., A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DONALD BAKER, Claimant, vs. File No. 980571 HUMBOLDT SAUSAGE CO., R U L I N G Employer, O N and R E H E A R I N G HOME INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The appeal decision filed May 31, 1995 affirms and adopts the arbitration decision filed November 21, 1994 and the rehearing ruling of January 20, 1995. Signed and filed this ____ day of June, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 Sixth Street P O Box 209 Waukee, Iowa 50263-0209 Ms. Judith Ann Higgs Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102-3086 2402 - 1806 Filed September 24, 1991 BYRON K. ORTON WRM before the iowa industrial commissioner ____________________________________________________________ : E. KENNETH JONES, : : Claimant, : : vs. : : File No. 908648 CONTINENTAL BAKING COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2402 Claimant drove a bread delivery truck and injured his knee when stepping out of the truck. The medical evidence showed that claimant, whose work involved stepping in and out of the truck up to 100 times daily, began experiencing a grinding sensation several months later. A physician opined that claimant's knee "wore out." Claimant filed his petition beyond the statute of limitations for the traumatic injury, but claimed the discovery rule. Held that the nature and seriousness of claimant's initial traumatic injury was known to claimant from the date of the injury, and a claim for that injury was barred by the statute of limitations. However, the wearing out of the knee from the subsequent stepping in and out of the truck constituted a separate, cumulative injury and claimant's petition was timely filed for that injury. 1806 Although an apportionment between the disability caused by claimant's initial traumatic knee injury and his later cumulative knee injury might be appropriate if both injuries had caused disability, under Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991) there was no direct disability from the initial injury, and thus all of claimant's present disability is compensable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROBERT E. GRUBB, Claimant, vs. File No. 980682 CLARINDA TREATMENT CENTER, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed November 2, 1993 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of March, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 5-1100; 5-1108; 5-4000.2 Filed March 28, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT E. GRUBB, Claimant, vs. File No. 980682 CLARINDA TREATMENT CENTER, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ____________________________________________________________ 5-1100; 5-1108; 5-4002.2 The state was barred from any activity and presenting any evidence after failing to comply with order to produce medical and wage records to claimant. Claimant was awarded 22 weeks permanent partial disability for a left knee injury found to have been caused by a work injury. Claimant was not awarded penalty benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT E. GRUBB, : : Claimant, : : vs. : : File No. 980682 CLARINDA TREATMENT CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This case came on for hearing on October 20, 1993, at Council Bluffs, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on March 30, 1991. The record in the proceeding consists of the testimony of the claimant and claimant's exhibits 1 through 10. The defendants was barred from any activity or presentation of evidence pursuant to a ruling on June 26, 1992. ISSUES The issues for resolution are: 1. Whether claimant is entitled to a 10 percent loss of his left leg; and, 2. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13; FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant was employed with defendants at Clarinda, Iowa, on March 30, 1991, and is still employed there. Claimant's exhibit 2 is a report claimant made to the employer which sets out how claimant injured his left knee on March 30, 1991. At that time claimant was making a fire security check and as he passed his desk, his left leg gave out causing him to fall. A few hours previous to this, as he was turning around, his left foot had caught in a crack in the tile and he twisted his left knee. The same exhibit 2, dated March 31, 1991, also reflects the supervisor's report which indicates claimant informed the supervisor of his injury. The supervisor also wrote Page 2 that claimant appeared to be walking as well then as when he came to work. Claimant's exhibit 4 is a report by Bruce D. Smith, M.D., an orthopedic surgeon, in which he opined that claimant had a 10 percent loss of function related to his injury of March 30, 1991 which was incurred while he was at work. Claimant testified that when he reported his injury to the state within minutes when he injured his left knee, he said he had also on the date, March 30, 1991, told the state that he had injured his right knee at home the previous day but was not claiming an injury to his right knee. Claimant's exhibit 5 is the medical bills in the amount of $9,181.15. Claimant's exhibit 6 is the mileage claimant incurred in relation to his medical care in connection with his left knee injury. Said amount totaled 2,400 miles. At 21 cents a mile this would amount to $504. Claimant testified that claimant's exhibit 7 sets out the healing period that claimant incurred as a result of this injury, those periods being April 3, 1991 through May 14, 1991; August 19, 20, 22, 23, 24, 1992; September 30, 1992; October 21, 1992; October 29 through December 16, 1992; and, May 14, 15 and 16, 1993. Claimant's exhibit 8 is a letter from the State of Iowa denying his claim. Claimant's exhibit 1, which was a report he filed March 31, 1991, asking for leave because of twisting his knee on March 29, 1991 at home does not say which knee or that it occurred at home. Claimant testified that it was his right knee and indicated that the state was told that. Claimant did not explain at the hearing as to why he didn't refer to his right knee in that report or that it occurred at home as it obviously does add confusion to the record. With the state being barred from presenting any evidence or participating in this hearing, of course, this could not be clarified other than accepting claimant's testimony. One could also see that one could conjecture that the fall on the left knee was a sequela of the claimant's injury to the right knee approximately 24 hours earlier as per exhibit 1. Claimant's exhibit 9 is a letter to Richard Andrews, of the Department of Personnel, and indicates claimant hurt his right knee on March 28 but this appears to be his right knee at home on March 28. This appears to be contrary to what claimant indicated in his application for leave which refers to March 29 and doesn't say where it occurred. Claimant requested the undersigned to take official notice of the file and all prior letters and orders that might be in the file and the undersigned agreed to do so. Claimant's exhibit 9 is one of the series of exhibits or letters that resulted in the undersigned's June 26, 1992 ruling barring defendants from any further activity and presentation of evidence. There is nothing in the record or file that would indicate any responsible response to Page 3 claimant's attorney in the claimant's attorney's attempt to either work something out on this case or determine all of the facts so as to prevent this case from going to litigation. A May 7, 1992 letter written by Assistant Attorney General Joanne Moeller was apparently in response to the undersigned's May 5, 1992 ruling ordering the employer to send all medical records in its possession and the claimant's wage statement one year prior to March 30, 1991, to the claimant's attorney within ten days from the date of the ruling. It appears from the record that it had never been done but Ms. Moeller obviously in her May 7, 1992 letter apologized for the claimant receiving no response from Dick Andrews. Ms. Moeller goes on to say "as you can imagine they are very short staffed over there, and cases are overlooked occasionally." While this is no excuse with the number of correspondence or the nature of the orders herein, it is hard for the undersigned to believe that this case has been so grossly overlooked. The undersigned is in no respect blaming the Attorney General's Office or Joanne Moeller for any conduct referred to herein as shown. In Ms. Moeller's May 7, 1992 letter which has previously been referred to, she starts as "as the lucky attorney assigned to this case." It is obvious she does not like to deal with a case that has such conduct and results in such sanctions. As the attorney in the Attorney General's Office that must defend state cases, this includes conduct of certain state employees. The fact is her apology does not remedy or solve the conduct the Department of Personnel has rendered against this claimant. Whether the Department of Pesonnel is being short staffed, inefficient, incompetent, lack of leadership, these are not excuses for the treatment this claimant received. Good faith action or courtesy by the Department of Personnel could have warranted different conduct than was exhibited in this case. The requests made by claimant's attorney to get to the bottom of this matter would take rather simple action on behalf of the state and would not have taken much time or effort. Such conduct in future cases could have more detrimental effect both to the interest of the claimant and the State of Iowa. The undersigned finds that such conduct normally would warrant a penalty in addition to the benefits awarded herein, but exhibit 1 does raise suspicion and doubt since it doesn't relate that claimant injured his right knee at home and claimant files it the same day he files a claim for his left knee. The claim is fairly debatable. The undersigned finds that claimant was an employee on March 30, 1991, with the State of Iowa, at which time he incurred an injury to his left knee that arose out of and in the course of his employment. The left knee injury which resulted in a 10 percent permanent impairment to said leg was caused by claimant's fall at work on March 30, 1991. This injury caused claimant to incur a healing period of April 3, 1991 through May 14, 1991; August 19, 20, 22, 23, 24, 1992; September 30, 1992; October 21, 1992; October 29 through December 16, 1992; and, May 14, 15 and 16, 1993. Page 4 Claimant's 10 percent impairment to his left leg results in claimant being entitled to 22 weeks of permanent partial disability benefits, payable at the weekly rate of $265.82. Said benefits will commence on May 15, 1991. The undersigned further finds that defendants shall pay claimant's medical bills as set out on claimant's exhibit 5 in the amount of $5,181.15, plus 2,400 miles at 21 cents per mile and equals $504. Both of these items are causally connected to claimant's March 30, 1991 work injury. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 30, 1991, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of March 30, 1991, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 09 (Appeal Decision 1982). The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Iowa Code section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Iowa Code section 86.13 permits an award of up to 50 Page 5 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendants' delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonably in denying payment. See Stanley v. Wilson Foods Corp., File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). It is further concluded that claimant incurred an injury that arose out of and in the course of his employment on March 30, 1991, which caused claimant to incur a 10 percent permanent impairment to his left leg and to incur medical bills and mileage. Claimant's work injury caused claimant to incur various healing periods. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred sixty-five and 82/100 dollars ($265.82) for the periods of April 3, 1991 through May 14, 1991; August 19, 20, 22, 23, 24, 1992; September 30, 1992; October 21, 1992; October 29 through December 16, 1992; and, May 14, 15 and 16, 1993, for a total of fourteen point four two nine (14.429) weeks. That claimant is entitled to twenty-two (22) weeks of permanent partial disability benefits at the weekly rate of two hundred sixty-five and 82/100 dollars ($265.82), beginning May 15, 1991 and are to be interrupted during any additional healing period and then to continue at such time as healing periods are not running until the permanent partial disability benefits are paid. That defendants are responsible for claimant's medical bills as referred to in claimant's exhibit 5 in the amount of nine thousand one hundred eighty-one and 15/100 dollars ($9,181.15) and also as to mileage reflected on claimant's exhibit 6 totaling two thousand four hundred (2,400) miles times twenty-one cents ($.21) per mile, equaling five hundred four dollars ($504). That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The record indicates no benefits have previously been paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon Page 6 payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Roger L Ferris Attorney at Law 1900 Hub Tower Des Moines IA 50309 Ms Joanne Moeller Assistant Attorney General Tort Claims Hoover State Office Bldg Des Moines IA 50319 5-1100; 5-1108 5-4000.2 Filed November 2, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT E. GRUBB, : : Claimant, : : vs. : : File No. 980682 CLARINDA TREATMENT CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-100; 5-1108; 5-4002.2 The state was barred from any activity and presenting any evidence. Claimant was awarded 22 weeks permanent partial disability for a left knee injury found to have been caused by a work injury. Claimant was not awarded penalty benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHARLES ANDERSON, Claimant, vs. File No. 980696 MIDWEST JANITORIAL SERVICES, INC. A R B I T R A T I O N Employer, D E C I S I O N and THE CINCINNATI INSURANCE COMPANY Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Charles Anderson, claimant, against Midwest Janitorial Services, Inc., employer and The Cincinnati Insurance Company, insurance carrier, defendants for benefits as the result of an alleged injury which occurred on February 5, 1991. A hearing was held in Davenport, Iowa, on September 13,1993, and the case was fully submitted at the close of the hearing. Claimant was represented by James M. Hood. Defendants were represented by Candy K. Pastrnak and Hector Lareau. The record consists of the testimony of Charles Anderson, claimant, Randall Bernard, operations manager, Jeff Riechman, insurance claim representative, Scott Jackson, private investigator, Mary Cannon-James, job service representative, joint exhibits 1 through 8 (Transcript page 7), claimant's exhibits A through G with the exception of pages 5 through 19 in exhibit D, which were withdrawn (Tran. pp. 8 & 9), and defendants' exhibits 1 through 9 (Tran. pp. 10, 13, 67 and 146). Defendants' exhibit 8 is a floor buffer and defendants were ordered to maintain custody of the floor buffer until all appellate periods have expired. Defendants were further ordered to photograph the floor buffer and send copies of the photograph to the industrial commissioner's file and to claimant, which defendants have done on September 23, 1993. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent post-hearing briefs. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: Page 2 (1) That causal connection and entitlement to temporary disability benefits were not in dispute; (2) That medical benefits were not in dispute; (3) That the rate of compensation in the event of an award was stipulated to be $114.82 per week; (4) That the type of permanent disability, if the alleged injury is found to be a cause of permanent disability, is industrial disability to the body as a whole; (5) That the commencement date of permanent disability benefits in the event of an award is August 3, 1991; and (6) That in the event of an award of permanent disability benefits that defendants are entitled to a credit in the amount of $628.08 for the overpayment of temporary disability benefits at the rate of approximate $140.00, whereas the correct rate should have been $114.81 per week (Tran. p. 46). ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on February 5, 1991, which arose out of and in the course of employment with employer; Whether the injury was the cause of permanent disability; Whether claimant is entitled to permanent disability benefit, and if so, the extent of benefits to which he is entitled, to include whether claimant is an odd-lot employee; and Whether claimant is entitled to penalty benefits. FINDINGS OF FACT INJURY It is determined that claimant sustained an injury to his lumbar spine on February 5, 1991, which arose out of and in the course of employment with employer. Defendants dispute injury for the reason that the accident that caused the injury was not witnessed. They assert that claimant's credibility negates the fact that claimant received an injury as he described on February 5, 1991. Defendants also contend that claimant's post-surgical recovery was unusual and that it negates his credibility on whether he received an injury and also his motivation to return to work. It is true that claimant's credibility has been Page 3 impeached and his motivation to work has been impugned but the weight of the evidence in the record supports the proposition that claimant did in fact injure his lumbar spine while operating a floor buffer while in the employment of employer on February 5, 1991. Claimant denied and there is no evidence of any prior back injuries (Tran. pp. 22 & 27; Jt. Ex. 2, p. 2; Jt. Ex. 5, p. 7; Jt. Ex 6, p. 3; Clmt's Ex. E, pp. 1 & 3). Claimant started to work for employer on June 14, 1990 (Jt. Ex. 8). He was assigned to perform the maintenance duties at UPS (United Parcel Service). Claimant testified that on February 4, 1991, his supervisor, Randy Bernard, told him to machine scrub and buff the customer service floor on the following day. Claimant testified that at approximately 6:30 a.m. on February 5, 1991, he was buffing the customer service floor when "The whole buffer, it shot up and hit me in the stomach. And I went backwards into the counter there." (Tran. pp. 25-27). Claimant diagramed and made a rough sketch of the area with defense counsel at the time of the hearing (Ex. 9). Claimant further explained in some detail how the injury occurred while referring to the diagram (Tran. pp. 65-79). Claimant related that no one was present with him when the injury occurred (Tran. p. 77). With respect to the accident being unwitnessed claimant explained that everyone was doing their own job and that he was doing his job and that is why no one witnessed the injury (Tran. p. 78). Claimant said that he began to feel "... a little burning on the right side of my back." (Tran. p. 27). Claimant testified that he told Vern Pfieffer, a UPS employee, what had happened and that he had hurt his back. Claimant said that Pfieffer told claimant to report the injury to Randy Bernard. Claimant testified that he then called the answering service and Bernard called him back at approximately 8:00 a.m. Claimant said that Bernard told him to wait until he could get a replacement there and then claimant was to go to the emergency room. Claimant further related that when the replacement arrived that he went to the emergency room at Mercy Hospital where he was treated and released (Tran. pp. 28 & 29). Claimant testified that the medical personnel at the emergency room at Mercy Hospital took him off work for two days (Tran. p. 79). Bernard, the operations manager for employer for some eight years, testified that claimant was performing his assigned job on the morning of the injury. Bernard testified, "He told me but pretty much what he was saying before. He was running the machine. He backed up -- supposedly backed him up into the stainless steel counter, and that's when he twisted his back." (Tran. p. 94). Bernard testified that he asked around but could not Page 4 find anyone who witnessed the injury (Tran. p. 94). Neither claimant nor defendants introduced any evidence from Vern Pfieffer which would either corroborate or refute claimant's testimony at the hearing. Bernard said that the foregoing information was what he reported to the insurance company when he was asked what had happened (Tran. p. 98). Bernard acknowledged that he got his account of the injury from claimant (Tran. p. 99). An incident report, that was labeled "Information Needed for Workers' Compensation", asked the question, "What was employee doing when injured?". The response states, "buffing the floors and buffer handle came back and he tried to get out way and pulled his back out of place." (Jt. Ex. 8). This report is signed by Randy Bernard. The Mercy Hospital emergency room records are not in evidence in the record of hearing (Tran. p. 29). Claimant testified that two days after the injury he sought care from Michael K. Ang, D.C., at Hurst Chiropractic. Claimant averred that Bernard told him to see a chiropractor (Tran. p. 30). Bernard admitted that he did recommend a chiropractor but denied that he specifically recommended Hurst Chiropractic (Tran. p. 95). The records of Hurst Chiropractic show that claimant was examined by Dr. Ang on February 7, 1991 for complaints of headache, pain in the right arm, lower back pain, pain in the right leg, pain in the right knee and stiffness of the neck. Their medical records show that Dr. Ang's physical examination demonstrated decreased lumbar flexion and extension, lumbar spinal tenderness and positive right and left straight leg raising. Several orthopedic tests demonstrated sensitivity of the lumbar and sacral area. Dr. Ang found cervical, brachial, thoracic, lumbar and lumbosacral problems which required $1,745.00 worth of chiropractic manipulation, passive motion therapy, intersegmental traction and interferential therapy between February 7, 1991 and February 22, 1991 (Ex. 6, pp. 1-5). On the workers' compensation questionnaire of Hurst Chiropractic claimant appears to have reported in his own handwriting the following, "The buffer I was running handle is defective and the buffer's hande (sic) shot up at me and I had to get out of the way." (Jt. Ex. 6, p. 9). In response to the question, "Where did you feel pain immediately after the accident?", claimant responded in his own handwriting "Felt burning in right side" (Ex. 6, p. 9). Claimant further indicated on the questionnaire that Mercy Hospital diagnosed a pulled muscle and prescribed a pain killer (Ex. 6, p. 9). The medical records show that the lumbar spine films taken at Hurst Chiropractic were underexposed and did not establish an x-ray diagnosis (Ex. 6, p. 10). Nevertheless, Hurst Chiropractic charged $190.00 for A.P. and lateral and full spine x-rays and another $50.00 to mark and interpret the x-rays (Ex. 9, p. 7). Page 5 Dr. Ang continued to keep claimant off work from February 7, 1991 through March 11, 1991 (Ex. 6, pp. 12-14). Claimant testified that Jeff Riechman, the insurance company claim representative, next sent him to Work Well (Tran. pp. 30 & 31) where he was seen by Edwin A. Motto, M.D., on March 1, 1991 (Ex. F, p. 1). At Work Well claimant was continued off work and an evaluation was requested from Daniel B. Johnson, M.D., a neurologist (Ex. F, p. 1). Dr. Johnson saw claimant on March 1, 1991 and he recorded, "... he is thirty-one-year old man who was buffing a floor on 2/5/91 when the buffer backed up against him and pushed him into a counter." (Ex. 7, p. 1). Dr. Johnson ordered an MRI and an EMG and prescribed physical therapy at Quad City Spine (Tran. pp. 32 & 33). On March 7, 1991 the MRI revealed herniated L5-S1 disc (Ex. 7, pp. 1, 2 & 3). On March 26, 1991, Richard L. Vermeer, M.D., at Work Well, continued claimant off work with a diagnosis of herniated disc L5-S1 (Ex. F, p. 2). On March 27, 1991, Dr. Johnson referred claimant to William R. Whitmore, M.D., an orthopedic surgeon (Ex. F, p. 4). Dr. Whitmore saw claimant on March 25, 1991 (Jt. Ex. 1, p. 1; Jt. Ex. 5, p. 5). Dr. Whitmore testified by deposition on March 18, 1993, that he has been a board certified orthopedic surgeon since 1966. Dr. Whitmore said that the history that claimant gave have him was as follows, "Mr. Anderson told me that he had twisted his back when he was working as a custodian at the United Parcel. He had been buffing the floor, and it twisted. And the buffer somehow pushed him backwards. He had to leave work after that incident or episode." (Jt. Ex. 7, pp. 6 & 7). Thus, claimant gave the same consistent history to Bernard, Mercy Hospital, Hurst Chiropractic, Work Well, Dr. Johnson, and Dr. Whitmore (Tran. pp. 32 & 33). Dr. Whitmore testified that he examined x-rays taken at Mercy and they did not show any specific abnormalities. The MRI of Dr. Johnson showed a herniated disc at L5, S1. The EMG showed a right side radiculopathy at the S1 nerve root (Jt. Ex. 5, p. 8). The risks of surgery were explained and compared with conservative care and claimant elected to have surgery (Jt. Ex. 1, p. 1). Dr. Whitmore testified that he explained to claimant that the surgery would not provide a new back or a new disc or preclude any problems after surgery. The main reason for the surgery was to relieve pressure on the nerve which caused the radiating right leg pain (Ex. 5, pp. 11 & 12). Dr. Whitmore further testified that he did tell claimant that he would expect that claimant would be able to participate in normal sorts of activities after the surgeries (Jt. Ex. 5, p. 13). Dr. Whitmore performed a standard laminectomy on March 27, 1991 (Jt. Ex. 5, p. 14; Tran. p. 34). The doctor related that he removed a large fragment and several small Page 6 fragments from claimant's lumbar spine (Ex. 5, p. 14). Dr. Whitmore testified that degenerative disc disease was primarily the reason for the herniated disc and then the episode with the buffer intervened and forced the disc material out of its normal area (Jt. Ex. 5, p. 12). With respect to causal connection between claimant's employment and the injury as well as the causal connection between the injury and claimant's current impairment, this colloquy took place, Q. Mr. Anderson gave you a history of buffing the floor at United Parcel and the buffer doing something. Do you have an opinion within a reasonable degree of medical certainty as to whether that event that he told you about that's reflected in your notes was the cause of the herniated intervertebral disc? A. I have no reason to believe that it was due to anything else. He didn't admit anything else to me. Q. There is a cause-and-effect relationship there? A. We have to assume that, yes. Q. And do you have an opinion within a reasonable degree of medical certainty as to whether or not the permanent impairment of 14 percent was caused as a result of the incident with the buffer? A. Yes. Q. Yes, it is? A. Yes. (Jt. Ex. 5, p. 45). After the surgery claimant sought treatment at CHC (Community Health Care) on September 17, 1991 and gave a history of using a floor buffer. There was a problem with the handle. Claimant was pushed against a stainless steel counter and injured his back (Clm's Ex. E, p. 2). When claimant was seen by physician's assistant Jane Anderson at the Community Health Care Clinic on September 17, 1991, she noted that she discussed a referral of claimant to the University of Iowa Orthopedic Department but that the patient deferred this referral at that time (Ex. E, p. 2). Defendants attacked claimant's credibility with respect to certain remarks he made about his previous military service and his previous employments. It is the opinion of the deputy that claimant's credibility was impeached on these collateral matters but Page 7 that his lack of credibility on these points did not destroy the overwhelming weight of the evidence summarized above that indicates that claimant did in fact sustain an injury as he described on February 5, 1991. Defendants' counsel understood at the time of claimant's deposition that he indicated that he had received an honorable discharge from the United States Army, but claimant replied that he did not claim to have received an honorable discharge, but rather he testified that he received a discharge under other than honorable conditions which claimant classified as an administrative discharge. Defendants' counsel did establish that claimant did not tell the truth about the length of time that he was absent without leave (AWOL) from the army. At his deposition claimant testified he was absent for about 300 days, whereas, in fact claimant was absent without leave for two years and seven months which is approximately 943 days. To clarify the record, the facts of claimant's military service are that he joined the United States Army on January 21, 1978 on the delayed entry program. Claimant entered into active duty on June 20, 1978. Claimant went AWOL two and one-half months later on September 5, 1978. He was dropped from rolls and classified as a deserter on October 4, 1978. He was apprehended by military authorities on May 18, 1981. Claimant requested to be discharged for the good Page 8 of the military service and received a discharge under other than honorable conditions on June 25, 1981 (Defs'. Ex. 1). Defendants' counsel established that claimant gave apparent inconsistent testimony about his AWOL situation with respect to the reason why he absented himself without leave. At the hearing claimant testified he went AWOL, "Because my mom was stuck with my two younger sisters, and they were having a real hard time making it." (Tran. p. 59). However, while being terminated from the army in 1981, claimant gave this written statement in his own handwriting over his own signature, "I would not make a good soldier, I can't take displine (sic). I turn myself in to just get this cleared so more doors would open up job wise. I want to go back to being a wrangler what I love to do. Signed Charles F. Anderson" (Jt. Ex. 1, p. 34; Tran. pp. 59 & 60). Another apparent inconsistency about claimant's military service was his testimony that he turned himself in but the military records show that he was apprehended by military authorities (Defs' Ex. 1, pp. 27 & 48; Tran, p. 61). At the hearing claimant testified that almost all of his previous employments required lifting of more than 50 pounds but when these employments were reviewed by defendants' counsel it was apparent that this was not a correct statement (Tran. pp. 24 & 62; Clmt's Ex. G). It is the opinion of this deputy that claimant's testimony was impeached and called into question on a number of points on these collateral matters but, nevertheless, this did not destroy the overwhelming evidence summarized above that claimant did in fact injure his lumbar spine while buffing a floor on February 5, 1991. Defendants have also contended that claimant's recovery behavior and return to work behavior after his lumbar laminectomy was not credible and negates the fact that he received a lumbar spine injury on February 5, 1991, as well as any permanent disability from that injury. It is the opinion of this deputy that defendants' counsel did impeach the credibility of claimant, and did impugn his motivation with respect to making a normal return to work based upon the established medical evidence, but nevertheless, his lack of credibility and his lack of motivation to return to work does not negate or destroy the overwhelming evidence that he did sustain an injury to his lumbar spine on February 5, 1991, while buffing the floor during his employment for employer. More specifically, these facts are as follows. Dr. Whitmore released claimant to return to work light duty on July 22, 1991 for two weeks and then full-time work after that. (See the request for medical report from Job Service in the deposition exhibits, joint exhibit 5, which is unnumbered, which appears to be completed on August 23, 1991.) Claimant testified that the work was within his job Page 9 restrictions but that he tried to do the work for about an hour and a half but that he was unable to do the work (Tran. p. 82). Claimant testified, "I was hurting so bad I had to lay on the floor at the place I was cleaning. And I called Randy and told him I couldn't do it. I was hurting too much." (Tran. p. 35). Claimant testified, "I tried very hard. I got as much as I could. I hurried and tried to get as much clean as I could, but the pain -- I was having to stop and lay down on the floor to release some of the pain so that I could continue and get back up and go and do some more." (Tran. p. 82). With respect to this incident Bernard testified that he assigned claimant to a job within his restrictions cleaning a room, pushing a vacuum, emptying waste cans, cleaning about four stools in restrooms, sweeping, mopping and no heavy lifting whatsoever (Tran. p. 95). Bernard testified that according to his records claimant was paid for 30 minutes of work. Bernard denied that claimant was terminated. Bernard testified, "No. He walked off the job that night saying that he couldn't do the job, and I consider that quitting." (Tran. pp. 96 & 97). Bernard testified that the only restrictions were weight restrictions of 30 pounds and nothing in that job exceeded 30 pounds (Tran. p. 97). Subsequent to that, on August 8, 1991, claimant wrote a letter in his own handwriting to employer which reads as follows, "I writting (sic) to see if you found me something in the office answering phones or something I can handle. I'm suppose to be released for full time employment and I'm broke. I need work I can do. Thanks Charles F. Anderson (Clmt's Ex. C). Dr. Whitmore's testimony on this incident was as follows, in response to a letter from Riechman. Riechman wrote to Dr. Whitmore on July 30, 1991. On July 26, 1991 Midwest Janitorial put Charles to work cleaning two offices. His duties consisted of dusting, emptying trash cans that weigh at the very most 5 pounds, and vacuuming. The total time to clean these offices would have been about 3 hours, but after 30 minutes Charles quit saying the work was two (sic) hard for him. Could you please advise me as to whether or not their (sic) is any medical reason, relating to his back injury, that he should not be able to do this type of work. (Riechman letter of July 30, 1991 to Dr. Whitmore, which is an unnumbered deposition exhibit in exhibit 5) Dr. Whitmore responded to Riechman on August 5, 1991, "The circumstances that you described in your letter of 30, July 1991, in my opinion, falls within the limits outlined for his abilities at this time." (August 5, 1991 letter of Page 10 Dr. Whitmore to Riechman, which is an unnumbered deposition exhibit in joint exhibit 5). In his deposition Dr. Whitmore testified that these duties do fit his description of his abilities (Jt. Ex. 5, p. 36). Defendants' counsel impeached claimant's credibility with respect to the job search he had performed in this case. However, even though this may establish a lack of motivation to return to work it does not destroy the overwhelming evidence of injury summarized above. This evidence is as follows. Claimant testified that he tried to find employment at 513 different places and made a list of them. However, defendants' counsel elicited on cross-examination that many of these places were simply random cold calls who did not actually have an opening for an employee and were not actively seeking a new employee at the time claimant contacted them (Tran. pp. 37, 38 & 84). Claimant admitted that only about 25 of these contacts were looking for an employee and of those 25 he only generated 6 interviews (Tran. pp. 38 & 39). Claimant admitted that he applied for construction jobs even though he was not able to do them as well as other jobs he probably could not perform (Tran. pp. 88-90). Defendants' counsel impeached claimant's testimony with respect to his 513 person job search by introducing a number of affidavits from business persons where claimant had indicated that he applied for employment. These affidavits indicated that the business had either (1) never heard from claimant or (2) had no application from him (Defs' Ex. 3, 4, 5 & & 7) or (3) that these prospective employers never made the statements that claimant attributed to them (Dets' Ex. 6). The fact claimant received a discharge other than honorable from the military service may have also been affecting his ability to find employment. In the letter he wrote to military authorities at the time of his discharge he indicated that it had given him problems in the past. Defendants' counsel established through the testimony of Mary Cannon-James, a job service representative, that they understood that claimant was a veteran because he told them he entered the service June 19, 1978 and was separated on June 25, 1981. Cannon-James explained that anyone who serves over 180 days is classified as a veteran (Tran. pp. 135-138; Defs' Ex. 1, p. 2). The balance of the testimony of Cannon-James verifies that claimant did advise them that his discharge was a general discharge and that he had lifting restrictions of 30 pounds due to a ruptured disc in his back which occurred on February 5, 1991 and that claimant was using a cane to get around (Tran. p. 139; Ex. 2, p. 5). Cannon-James testified that claimant had been contacted for a number of job openings but the record showed no Page 11 response (Tran. p. 141; Ex. 2, p. 6). She testified that in today's job market one has to be aggressively looking for work in order to find employment (Tran. p. 142). However, she acknowledged that claimant could have responded to the notices sent out by Job Service without going to Job Service (Tran. p. 144). The testimony of Cannon-James may throw some doubt on claimant's motivation to return to work but it does not rise to the level of negating the overwhelming evidence that claimant sustained an injury to his lumbar spine on February 5, 1991, as he described in his testimony and is documented in all of the medical reports summarized above. Defendants' counsel attempted to show that claimant's unusual and unexplainable pain behavior subsequent to the surgery negated his credibility that he actually sustained an injury on February 5, 1991, as he described. It is the opinion of the deputy that claimant's pain behavior may reflect upon his motivation to work but does not negate the overwhelming evidence that claimant sustained the injury that he described based upon the overwhelming evidence summarized above. This evidence is as follows. Dr. Whitmore testified that after the surgery when claimant was in the hospital that claimant told him that his leg pain was virtually gone. Dr. Whitmore signified and his office notes show that on April 16, 1991, claimant told him, "lots better than before surgery" ... "90% better". (Jt. Ex. 1, p. 2; Jt. Ex. 5, p. 16 & 17). On April 5, 1991, the doctor noted that claimant said the pain down his leg was only 50 percent of what it was before (Jt. Ex. 1, p. 2). At the same time Dr. Whitmore said that he began to notice some unusual behavior on the part of claimant. First of all claimant began walking with a cane, even though he had not prescribed a cane because it was not necessary (Ex. 1, p. 2; Ex. 5, p. 18). Second, at times claimant would appear to be comfortable and relaxed and in no distress and during this same office visit at other times it would appear as though he had considerable distress and was having a lot of pain (Jt. Ex. 1, pp. 1 & 2; Jt. Ex. 5, p. 16). Third, on May 17, 1991, claimant continued to walk with a cane, and he was also limping. He acted frustrated, angry, distressed and he was pessimistic. The doctor said that claimant's physical examination was normal, the wound was well healed, reflexes were normal, straight leg raising was normal, muscle strength was normal and motion was normal. Dr. Whitmore testified, "What you saw and what objective things were did not correlate." (Jt. Ex. 5, p. 21). Dr. Whitmore said he recommended counseling. The doctor said claimant agreed to counseling at first and Dr. Whitmore made an appointment for counseling but subsequently claimant declined to go. The doctor said the only reason that he was given by claimant was that the insurance company had done something to make claimant angry and that was the reason he did not go (Jt. Ex. 5, pp. Page 12 21-23). Dr. Whitmore said that at the time of the office visit on June 7, 1991, claimant demonstrated even more unusual postural findings. He said that claimant was totally rigid and complained that any motion whatsoever in his body caused pain. The doctor said he performed two tests which rarely cause pain and that both tests produced significant complaints of pain and pain reaction by claimant. The doctor said he asked claimant to heel and toe walk and claimant told him that this was almost impossible for him to do. Dr. Whitmore said that even the slightest touch produced a great deal of pain on claimant's part (Jt. Ex. 1, pp. 3 & 4; Jt. Ex. 5, pp. 22 & 23). On June 6, 1991, Loren Arp, the physical therapist wrote to Dr. Whitmore that he had performed a functional capacity examination. Arp said that claimant should have more strength and endurance than he demonstrated compared to his body weight. Arp wrote that claimant's results "were inconsistent which would note either a poor effort or a poor understanding of the instructions for the test." (Jt. Ex. 3, p. 2). The functional capacity examination of Arp on June 6, 1991 indicates that claimant should be able to perform a light duty job like employer offered him on July 26, 1991. On June 11, 1991, Dr. Whitmore advised Arp of the inconsistencies that he found on claimant's recent examinations and Dr. Whitmore then noted that "I advised Mr. Arp of the inconsistencies on his last physical exam and Mr. Arp told me that his testing was inconsistent also. Therefore I believe we should not input any more physiotherapy at this time." (Jt. Ex. 1, p. 4). In the course of his treatment claimant related a number of unusual pain experiences to Dr. Whitmore for which the doctor had no medical explanation. On April 2, 1991, claimant reported that he rolled over on his stomach and had an electric shock like pain shoot down his right leg to his foot. On July 16, 1991, the doctor noted that claimant reported playing Nintendo with his nephew for 45 minutes and developed low back pain and had to lie down. On August 20, 1991, claimant reported that on August 13, 1991, he reached his arms overhead to yawn and felt an excruciating pain in his neck which lasted two or three minutes. On August 20, 1991, the doctor also related another episode where claimant had a cramp that almost knocked him down two or three days before he went back to work (Jt. Ex. 1, pp. 2, 4 & 5; Jt. Ex. 5, p. 31). Dr. Whitmore testified that he made an appointment for claimant on October 31, 1991 and claimant did not show up for it and this concluded his treatment of claimant (Jt. Ex. 5, p. 32). Page 13 On June 20, 1991, Dr. Whitmore said that he had no explanation for these inconsistencies in claimant's recovery behavior. He said there was nothing more that he could do for claimant. The doctor testified that he thought that claimant should go back to work (Jt. Ex. 5, p. 29; Jt. Ex. 1, p. 5). Robert J. Chesser, M.D., performed an independent medical examination for claimant at claimant's request on June 20, 1992. Dr. Chesser related that the buffer started to pin claimant against the wall and he twisted quickly to get out of the way. Thus, the history that claimant has given to all of the doctors is consistent. Claimant related to Dr. Cheeser that he felt worse now than before the surgery. Normally, an injury is worse at first and gradually improves over time with or without medical treatment. Dr. Chesser ordered a repeat MRI with Gadolinium and a repeat EMG in order to determine whether something had been missed in claimant's treatment with Dr. Whitmore. The MRI showed no recurrent disc extradural defects but that claimant did suffer from mild residual early degenerative disc disease at L5, S1. Dr. Chesser said the electrodiagnostic testing was within normal limits (Jt. Ex. 5, p. 38). Dr. Chesser did not attempt to give an explanation or diagnosis for claimant's deteriorating and unusual subjective pain complaints (Jt. Ex. 2, pp. 1-11). Dr. Whitmore said that the medical profession knows the normal recovery for a herniated disc surgery and that his objective testing showed that claimant's complaints of severe pain and disability were not consistent with a recovering herniated disc (Jt. Ex. 5, p. 33). Dr. Whitmore said that the maximum medical recovery should have occurred on August 3, 1991 (Jt. Ex. 5, pp. 34 & 35). Thus, even though defendants have successfully impeached claimant's testimony on several points about his military service and have impugned his motivation to return to work by the foregoing evidence, nevertheless, this evidence does not negate the fact that claimant sustained an injury to his lumbar spine on February 5, 1991, as shown in the previous summary of the evidence. The historical chain that establishes injury is unbroken. Claimant described an injury when the buffer forced him against the stainless steel counter and he felt a burning sensation on the right side of his back. The injury was not witnessed but this is not unusual. As claimant pointed out, everyone was doing their own job at that time and that he was doing his job. Claimant did say that he told a UPS employee about the injury. Claimant said he then reported the injury to his supervisor, Bernard, who sent him to Mercy Hospital emergency room. Claimant later received care from Hurst Chiropractic with the knowledge and implied consent of Bernard. The report of the incident, the Mercy treatment, Page 14 and the Hurst Chiropractic treatment for an injury that occurred at work with a buffer was all verified by Bernard. Claimant has consistently given essentially the same history to Bernard, Mercy Hospital, Dr. Ang, Dr. Motto, Dr. Vermeer, Dr. Johnson, Dr. Whitmore, Community Health Care, Dr. Chesser and Riechman. Dr. Whitmore, who has a lot of experience in these matters, and who was the treating orthopedic surgeon said that he assumed that this history was correct. No doctor has suspicioned or suggested any other cause for this injury. The fact that claimant was incorrect or possibly lied about collateral matters with respect to his military service or certain aspects of it have no bearing and do not controvert the overwhelming evidence in this case of a work injury. Therefore, the deputy's determination that claimant was credible about this injury coincides with all of the medical professionals who examined or treated claimant. The fact that claimant's recovery was inconsistent with normal intervertebral herniated disc recovery, and that claimant related a number of unusual pain experiences related to his alleged disability, have no bearing on the solid record in this case (1) that claimant was injured by the buffer, and (2) that the injury was the cause of aggravating claimant's preexisting degenerative disc disease and made his intervertebral herniated disc symptomatic which required the surgery of Dr. Whitmore. Wherefore, even though defendants have successfully impeached claimant's testimony on several points about his military service and have impugned his motivation to work by the foregoing evidence, nevertheless, this evidence does not rise to the level of negating or destroying the overwhelming chain of events that show that claimant did in fact sustain an injury to his lumbar spine on August 5, 1991, that arose out of and in the course of his employment with employer while buffing the floor at UPS. casual connection-entitlement-permanent disability It is determined that the injury of February 5, 1991 was the cause of permanent disability and that claimant has sustained a 15 percent industrial disability to the body as a whole and is entitled to 75 weeks of permanent partial disability benefits. It is further determined that claimant is not an odd-lot employee. Claimant's young age of 31 at the time of the injury and 33 at the time of the hearing does not increase but rather tends to decrease, claimant's entitlement to industrial disability. Claimant is still young enough to develop one or more careers that would provide gainful employment and sufficient income to earn a livelihood for him until the normal retirement age of approximately 60 or 65 years of age. This gives claimant some 30 years yet to be used to his advantage in earning a livelihood (Tran. p. 21). Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Page 15 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's education does not increase his industrial disability. Claimant has a high school education and this is the base line for employment in the competitive labor market (Tran. p. 23). Claimant is interested in study and learning and it is determined that claimant is capable of retraining. Claimant attended airline travel and accounting school, even though he dropped out because he found accounting difficult. This is not unusual; a lot of people find accounting difficult. Claimant appeared to be an intelligent and articulate person at the time of the hearing. The deputy formed the opinion that claimant is capable of either academic or on-the-job training to learn one or more new careers. In fact, claimant was attending classes at the time of the hearing to learn how to become self-employed and start his own business (Tran. pp. 49 & 50). Likewise, claimant was exploring the possibility of entering a training program to become a missionary at the time of the hearing (Tran. p. 50). Claimant has demonstrated a flexibility and adaptability for assimilating and learning new employments prior to this injury. Between 1977, when claimant was 17 years old, until the date of the injury in 1991, when claimant was 31 years old, a period of 14 years, claimant has performed 27 different employments in Illinois, Arizona, Hawaii, American Samoa and Iowa (Clmt's Ex. G, pp. 1-4). Many of claimant's past employments involved manual labor and he has also worked as a security guard. Whether claimant could perform manual labor types of jobs in the future would depend upon his motivation and his bona fide attempt to perform them. Based upon the information supplied by the treating orthopedic surgeon, Dr. Whitmore, claimant is able to work. The disability issue, like the injury issue, requires claimant to establish his disability by a preponderance or weight of the evidence. The burden of proof is upon claimant to establish the extent of his industrial disability. Armstrong v. State of Iowa Building and Grounds, 382 N.W. 2d 161, 166 (Iowa 1986). Claimant's inability to perform light housekeeping duties is not supported by or explained by any medical or nonmedical evidence in the record. Claimant contended that he was unable to perform these duties and found it necessary to lay on the floor in pain. However, the treating orthopedic physician, Dr. Whitmore, stated in writing and testified by deposition that claimant should be able to perform these duties without difficulty. Claimant's supervisor, Bernard, though claimant should be able to perform these duties without difficulty. Claimant's own choice of physicians at the Community Health Care and Dr. Chesser did not offer any explanation for pain so severe that claimant was unable to perform light duty work or light to medium work. On the contrary, the repeat Page 16 MRI and EMG ordered by Dr. Chesser failed to disclose any reason for such severe pain other than claimant's mild and preexisting degenerative disc disease. The functional capacity examination performed by Arp on June 6, 1991, would also permit claimant to perform sedentary, light and light to medium work. Arp indicated that he actually believed that claimant could perform even more work than this physical capacity examination showed. Arp believed that claimant's ability to lift was inconsistent with his body weight. Arp is an expert in his field and his opinion should be respected. Even with the limitations that Arp recorded based on claimant's performance, Arp, nevertheless, found that claimant was able to work eight hours per day and forty hours per week. He said claimant was capable of sitting for four hours, standing four hours, and walking four hours. Based upon claimant's demonstrated performance Arp said claimant should not climb at all. He was not supposed to carry or lift from the floor to waist more than 34 pounds. He was not to lift more than 10 pounds overhead. He was not supposed to push or pull more than 50 pounds. In his closing paragraph Arp pointed out that these were not permanent limitations but that claimant's ability could increase if given a change due to patient progress, future medical intervention or other circumstances. Motivation would fall under other circumstances (Ex. 3, pp. 1-5). Claimant's own evaluating physician, Dr. Chesser, said that claimant was capable of full-time work with a permanent weight restriction of 30 pounds on an occasional basis which he defined as ten times per hour. Dr. Chesser also recommended to alternate sitting and standing every 20 to 30 minutes, but it was only a recommendation, it was not imposed as a hard, fast permanent restriction for all time. Dr. Whitmore, the treating orthopedic surgeon, who should be in the best position to know, testified that he did not think any work restriction should be imposed on claimant. Dr. Whitmore further stated that lifting restrictions of 30 pounds, 32 pounds or 35 pounds were arbitrary (Jt. Ex. 5, p. 49). In his deposition given on March 18, 1993, Dr. Whitmore testified that claimant should be able to return to work. His testimony on this point was as follows: Do you have an opinion within a reasonable degree of medical certainty as to whether or not Mr. Anderson should be able to return to work? A. Based on the fact that he had a herniated intervertebral disc, had it treated and had no objective complications of the disease or the surgery, I see no reason why he couldn't go back to work. He should have no limitations based on those Page 17 things. There is no reason why he couldn't go back to employment." (Jt. Ex. 5, pp. 41 & 42). With respect to whether claimant should have any lifting restrictions or not, the opinion of Dr. Whitmore is preferred over the opinion of Dr. Chesser. Dr. Whitmore has been a board certified orthopedic surgeon since 1966, a period of approximately 28 years. Dr. Whitmore saw the claimant on several occasions and monitored his recovery closely. As the treating physician Dr. Whitmore bears a certain amount of responsibility for the ultimate success or failure of claimant's recovery. By comparison, Dr. Chesser, a physical medicine physician, only examined claimant on one occasion for the purpose of giving an opinion for the purpose of litigation. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). The treating orthopedic surgeon had more opportunity to form his expert opinion than the one-time examiner of claimant. Lemon v. Georgia Pacific Corp., II Iowa Industrial Commissioner Report 204, 205 (App. Dec. 1981); Clement v. Southland Corp, I Iowa Industrial Commissioner Report 56, 58 (1981). A doctor's expertise and board certification may accord his testimony greater weight. Reiland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979). If there are psychological factors bearing on claimant's disability claimant did not use the opportunity to develop them. Dr. Whitmore made an appointment for psychological counseling and claimant initially agreed to receive it, but eventually he declined this opportunity with the stated reason that he became angry at the insurance carrier. Thus, there is no evidence of a professional nature to support a claim for any psychological disability in this case even though claimant was given the opportunity to be examined and evaluated. Dr. Whitmore said that he was unable to speculate on what restrictions might be appropriate for psychological reasons without a psychological examination (Jt. Ex. 5, p. 49). In a medical report to Job Service which claimant authorized on August 22, 1991, in order to determine his eligibility for unemployment compensation benefits, Dr. Whitmore stated that claimant suffered a herniated intervertebral disc at L5-S1, right which was employment related, but that he did not advise claimant to quit his job. Dr. Whitmore did verify that claimant was unable to perform his occupation from February 5, 1991 to July 22, 1991 due to the herniated disc surgery. However, when asked about restrictions, Dr. Whitmore wrote, "Released to part time work with no strenuous lifting for two weeks, then full time work." (Jt. Ex. 5, unnumbered deposition Ex.). As a result of this report claimant was able to receive unemployment compensation benefits in September of 1991 until June of 1993 (Tran. p. 89). Thus, claimant's Page 18 contention that he was unable to perform any work and that he is an odd-lot employee is irreconcilable with the opinion of the treating orthopedic surgeon as well as his own evaluating physician. Also claimant's acceptance of unemployment compensation benefits is based upon the fact that he certifies to Job Service that he is able and available to work. Claimant admitted that no doctor had prescribed a cane. Claimant contended that he used the cane because he got bad cramps in his back and spasms in his back and if he did not have a cane he would be on the ground and he preferred not to be on the ground (Tran. p. 43). No doctor ever explained why claimant should walk with a limp. Claimant testified that he continued to experience a burning sensation in his right leg down into his toes as well as cramping in his legs sometimes. Claimant was not taking any prescription medications at the time of the hearing. He said he only took Advil or Tylenol possibly three times a day (Tran. pp. 44 & 45). Claimant said he went to Iowa Vocational Rehabilitation. They sent him to Skills Incorporated in Moline. Claimant said they had him stand for long periods of time and if he stood for longer than 45 minutes the cramps got so bad he had to lay down (Tran. p. 45). Claimant explained that what bothered his back on his trial return to work was bending to clean toilets and empty trash and clean windows. He said the difficulty was a lot of bending and stretching and vacuuming (Tran. p. 36). Scott Jackson, a private investigator, testified that he was hired to observe claimant in February of 1993. He testified that he video taped claimant for approximately a half-hour bent over at the waist approximately 90 degrees working on the engine of a car with the hood up in front of his residence. Jackson testified that he saw claimant squat and bend a number of times. Jackson testified that claimant's actions did not appear to be forced or restricted in any way. Jackson further testified that later in the day he observed claimant work on another car for approximately another half-hour. The witness said that claimant moved his body in an unrestricted fashion (Tran. pp. 102-117). Thus, claimant's testimony about his restricted abilities to bend and stretch and perform sustained work has been controverted, rebutted and contradicted by Jackson's testimony. Jackson further testified that he observed claimant run errands without any apparent difficulty in his movements. Even if it were to be assumed for purposes of argument, that claimant is unable to work, claimant has not established a large actual wage loss because all of his previous employments were minimum wage jobs or entry level wage jobs and he can still command those wages if he were to return to work at practically any work today (Tran. p. 23). Page 19 Thus, it can be seen that claimant has not demonstrated any psychological disability through professional medical testimony. Nor has he established, by the weight of the evidence, that he is unable to work for physical reasons based upon the evidence of any of the medical professionals who have testified or submitted evidence in this case. Furthermore, since claimant has not actually performed any work it is difficult if not impossible to ascertain how much industrial disability, if any, that really exists in his case. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Thus, it would appear that claimant's permanent disability is limited to approximately his physical or functional impairment as determined by the ratings of the two physicians that evaluated him and supplied ratings for his permanent impairment in this case. Dr. Whitmore determined that claimant sustained a 10 percent permanent impairment on September 16, 1991, in response to a letter from Riechman dated September 10, 1991 (Clmt's Ex. A, pp. 6 & 7; Jt. Ex. 5, pp. 45 & 47). Dr. Chesser determined that claimant sustained a 14 percent impairment on January 20, 1992 (Jt. Ex. 2, p. 3). Dr. Whitmore said that the 14 percent impairment rating of Dr. Chesser was a fair rating, but he also commented that 4 percent of it was based on motion which is somewhat of a subjective thing (Jt. Ex. 5, p. 41). None of the other physicians in this case, Dr. Ang, Dr. Motto, Dr. Vermeer, Dr. Johnson, or the Community Health Care physician's assistant, Anderson, were requested to supply a permanent impairment rating (Tran. p. 20). Industrial disability is not necessarily greater than functional impairment but can be equal to, less than or greater than functional impairment. Lawyer and Higgs, Iowa Workers' Compensation, Second Edition, Section 13-5 at page 131. Wherefore, based upon the industrial disability factors of age, education, retraining, ability to perform past employments, loss of actual wages, and loss of earning capacity, claimant has proved very little industrial disability over and above his permanent physical and functional impairment ratings. Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Dr. Whitmore, the board certified treating orthopedic surgeon with approximately 28 years of experience found no reason why claimant should be unable to work, based upon his own personal extensive clinical testing as well as the subsequent MRI and EMG performed by Dr. Chesser. Therefore, it is determined that claimant has sustained a 15 percent industrial disability to the body as a whole and is entitled to 75 weeks of permanent partial disability benefits. PENALTY BENEFITS It is determined that defendants are guilty of a delay Page 20 in the commencement of permanent disability benefits which occurred without reasonable or probable cause or excuse and that claimant is entitled to an award of 50 weeks of penalty benefits at the rate of 50 percent based upon the 10 percent impairment rating of Dr. Whitmore dated September 16, 1991 in the total amount of $2,870.25 (50 % x $114.81 = $57.405 x 50 = $2,870.25). Defendants admitted in response to the request for admissions that the impairment rating given by Dr. Whitmore on September 16, 1991 to Riechman was not forwarded to claimant or his attorney within 20 days after the receipt of the rating. Rule 343 IAC 4.17. Defendants further admitted in the response to request for admissions that the employer and insurance carrier did not serve other correspondence between Dr. Whitmore and the employer and insurance carrier on claimant in a timely fashion. Defendants further admitted that they had never paid claimant any permanent partial disability benefits (Ex. D). Riechman testified that he started to work for the insurance carrier in September of 1990 and that he came to Iowa in December of 1990. He stated that he met claimant in the course of the investigation of this injury. The witness said that he had only been on the job as a field adjuster for about two months at the time of this claim. Riechman testified that as time went by he found inconsistencies about claimant's recovery in the report of Arp, the physical therapist, and Dr. Whitmore, the treating physician, which he discussed with defendants' counsel. Riechman said that it was decided that the claim should be contested. Riechman said that he talked to people about the buffer and how it was operated. He concluded that the injury could not have occurred in the manner that claimant stated. However, apparently Riechman did not take any statements from these people nor did defendants submit any evidence into the record at the time of hearing on this point. Defendants did not offer any documentary or testimonial evidence to support Riechman's conclusion. As far as this case goes it is simply a conclusion without any supporting tangible evidence. Furthermore, before making a decision not to pay permanent partial disability benefits an insurance company should make an adequate investigation and be prepared to support their position with a reasonable investigation which was not done in this case. Furthermore, Riechman's memory and record keeping were both faulty. He could not recall and he could not establish whether he forwarded the permanent impairment rating of Dr. Whitmore to his own counselor or not. Defendants' counsel made a professional statement that she first learned of the permanent impairment rating of Dr. Whitmore at the time of his deposition on March 18, 1993, which was almost a year and a half after it was made (Tran. pp. 127 & 131). Page 21 Even after defendants' counsel learned of the 10 percent impairment rating of Dr. Whitmore on March 18, 1993, at the time of his deposition defendants still did not pay claimant any permanent disability benefits and did nothing to obtain a competing or opposing rating to that of their own authorized treating physician, Dr. Whitmore. Riechman further admitted that he never checked out his investigative findings about the operation of the buffer, (whatever they were) with the doctor in order to get a professional medical opinion on the point of causation (Tran. pp. 127 & 132). Riechman further admitted that he never obtained the Mercy Hospital emergency record (Tran. p. 134). In a response to a request for admissions defendants submitted that Riechman wrote to Dr. Riechman for an impairment rating on September 10, 1991 (Ex. A, p. 6). Defendants further admitted that Dr. Whitmore responded by letter dated September 16, 1991 assigning a 10 percent whole body impairment based on the fact that claimant had sustained a herniated intervertebral disc which was treated surgically and from which claimant continued to have some residual symptoms (Ex. A, p. 9). Claimant testified that he was never notified by the insurance company that Dr. Whitmore had determined he had a 10 percent impairment rating (Tran. pp. 46 & 47). Claimant and his attorney first learned of the 10 percent permanent functional impairment rating at the time of Dr. Whitmore's deposition on March 18, 1993, when claimant's counsel requested to see Dr. Whitmore's file. Claimant still had not been paid any permanent disability benefits at the time of the hearing (Tran. p. 48). Since defendants were not disputing their own doctor's permanent impairment rating with any other impairment rating they should have paid it as soon as they received it. Irrespective of whether Riechman failed to serve this report on his own counsel or opposing counsel through ignorance, inexperience, inadvertence or neglect, the fact still remains that an injured worker was deprived of his rightful entitlement to permanent partial disability benefits which should have commenced at the end of healing period. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The inconsistencies which Riechman referred to, that were mentioned by Arp and Dr. Whitmore, related to the issue of disability and not to whether claimant has sustained an injury or not. There are numerous industrial commissioner decisions which hold that defendants are liable for penalty benefits when they fail to pay at a bare minimum their own authorized treating physician's impairment rating when they have no other conflicting medical evidence and furthermore were not seeking any. Dr. Whitmore, their own doctor, said the employment caused this injury and that the injury caused a 10 percent permanent impairment. Neither Riechman, nor defendants' counsel, or anyone else on the behalf of defendants offered any reasonable or probable cause or excuse for not paying claimant the 10 percent impairment rating determined by their own physician Page 22 and which they were not disputing. The idea that it would be determined that claimant had not sustained a work injury was not realistic based on the overwhelming evidence that he did. Wherefore, it is determined that defendants delayed and failed to commence permanent partial disability benefits to claimant at the end of healing period in the amount of 50 weeks based upon the 10 percent permanent impairment determined by Dr. Whitmore on September 16, 1991. Fifty percent of the stipulated rate of $114.81 is a penalty rate of $57.405. This penalty rate times 50 weeks equals $2,870.25. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant's credibility on matters concerning his military service and other items as well as his credibility about the amount of pain he was experiencing after the surgery do not negate the fact that the overwhelming evidence summarized in the body of the decision establishes that claimant did, as a conclusion of law, sustain an injury to his lumbar spine on February 5, 1991, which arose out of and in the course of employment with employer. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That claimant did sustain the burden of proof by a preponderance of the evidence, as a conclusion of law, that the injury of February 5, 1991 was the cause of permanent impairment and permanent physical 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). That claimant has sustained a 15 percent industrial disability to the body as a whole primarily based upon his physical and functional impairment as determined by the treating physician and claimant's evaluating physician as well as other industrial disability factors. Iowa Code section 85.34(2)(u). 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). That claimant did not sustain the burden of proof by preponderance of the evidence that he is incapable of obtaining employment in any well know branch of the labor market. Furthermore, defendants did sustain the burden of proof by preponderance of the evidence that claimant is employable in the competitive labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). That claimant has sustained the burden of proof by preponderance of the evidence that defendants delayed the commencement of permanent disability benefits without Page 23 reasonable or probable cause or excuse and that claimant is entitled to penalty benefits in the amount of 50 percent of the amount of benefits that he should have received commencing at the end of healing period. Iowa Code section 86.13. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant seventy-five (75) weeks of permanent partial disability benefits based upon a fifteen percent (15%) industrial disability to the body as a whole at the rate of one hundred fourteen and 81/100 dollars ($114. 81) per week and in the total amount of eight thousand six hundred ten and 75/100 dollars ($8,610.75) commencing on August 3, 1991 as stipulated to by the parties. That defendants are entitled to a credit against this award in the amount of six hundred twenty-eight and 08/100 dollars ($628.08) as stipulated to by the parties on the hearing report. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant penalty benefits in the amount of fifty-seven and 405/100 dollars ($57.405) for 50 weeks in the total amount of two thousand eight hundred seventy and 25/100 dollars ($2,870.25) also commencing on August 3, 1991. That interest will be due on penalty benefits beginning on the date of this decision. That defendants are charged with the costs of this action, including the cost of the attendance of the court reporter at hearing and the transcript of hearing, 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 April, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James M. Hood Attorney at Law Page 24 302 Union Arcade Bldg. Davenport, IA 52801 Ms. Candy Pastrnak Mr. Hector Lareau Attorneys at Law 1600 Fourth Ave PO Box 3700 Rock Island, IL 61201 1108.50, 1401, 1402.20, 1402.30, 2206, 1803, 3700, 4000.2, 4100 Filed April 25, 1994 Walter R. McManus BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHARLES ANDERSON, Claimant, vs. File No. 980696 MIDWEST JANITORIAL SERVICES, INC. A R B I T R A T I O N Employer, D E C I S I O N and THE CINCINNATI INSURANCE COMPANY Insurance Carrier, Defendants. ___________________________________________________________ 1108.50, 1401, 1402.20, 1402.30, 2206 It was determined that claimant did sustain an injury arising out of and in the course of employment when a floor buffer forced him against a counter and aggravated his preexisting degenerative disc disease and precipitated a lumbar laminectomy at L5, S1. Defendants impeached claimants credibility on a number of collateral points, and impugned his motivation to work because of his post-surgical unexplained pain behavior. Nevertheless, defendants' evidence did not rise to the point of discrediting the overwhelming evidence in favor of injury. 1803 It was determined that claimant was entitled to little more that his permanent impairment ratings of 10 percent and 14 percent and he was awarded 15 percent industrial disability. Several conflicts of evidence were resolved. Claimant's disability contentions were not supported by medical evidence. Defendants' contentions were supported by the medical evidence of the treating orthopedic surgeon, who was preferred over the one-time evaluator. Page 2 3700 Surveillance evidence rebutted, controverted and contradicted claimant's testimony of subjective complaints of disability. 4100 It was determined that claimant was not an odd-lot employee. 4000.2 Claimant was awarded 50 percent penalty benefits for 50 weeks. Defendants' new on-the-job claim representative failed to investigate the claim properly. Defendants had an impairment rating of 10 percent from the authorized treating physician which they did not serve on claimant, and they did not pay even though they had no conflicting rating, and were not seeking any. Defendants' idea that claimant's credibility would negate injury was unrealistic. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALBERT O. KING, Claimant, vs. File Nos. 980837, 1031618 PIRELLI-ARMSTRONG TIRE CORP., 1045148, 1044727 1044728, 1044729 Employer, A R B I T R A T I O N and D E C I S I O N TRAVELERS INSURANCE COMPANY, and SECOND INJURY FUND OF IOWA, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Albert O. King as the result of alleged injuries to his feet occurring on October 22, 1991 in file number 1031618; November 18, 1991 in file number 1044729; July 13, 1992 in file number 1044728; October 23, 1992 in file number 1044727; and injuries to the upper extremities occurring on December 3, 1990 in file number 980837. Claimant also alleged hearing loss occurring on December 31, 1992 in file number 1045148. Claimant made a motion to dismiss the hearing loss claim at the time of hearing. Claimant's motion to dismiss is granted in file number 1045148. The defendants denied liability for the foot injuries and multiple issues are presented for determination. The defendant-employer admitted liability for the bilateral hand injuries and the issue of permanent disability is presented along with Second Injury Fund claims. This case was heard and fully submitted at Des Moines, Iowa on February 13, 1995. The record in the proceeding consists of joint exhibits A and B; testimony from Albert O. King and Joyce Kain. Claimant was represented by Max Schott, Attorney at Law. The defendant-employer and insurance carrier were represented by Terry Monson, Attorney at Law. The Second Injury Fund of Iowa was represented by Shirley Steffe of the Attorney General's Office. ISSUES The issues presented for determination are as follows: 1. Whether claimant sustained injuries to the feet arising out of and in the course of employment with the employer on October 22, 1991, November 18, 1991, July 13, 1992 and October 23, 1992; 2. Whether the foot injuries are a cause of permanent disability, the nature and extent thereof; 3. Whether the foot injuries are a cause of temporary disability; 4. The extent of entitlement to permanent disability for the December 3, 1990 hand injuries; 5. The commencement date for permanent disability benefits; 6. Whether the injury claims of October 22, 1991 and November 18, 1991 are barred pursuant to Iowa Code sections 85.23 and 85.26; 7. Whether claimant is entitled to Second Injury Fund of Iowa benefits; and 8. Whether claimant is permanently and totally disabled under the odd-lot doctrine. FINDINGS OF FACT Having heard the testimony of the witnesses and having considered all of the evidence in the record, the deputy industrial commissioner finds: Albert King began work for the employer on March 18, 1959. Claimant was a production worker in a tire factory. Claimant's duties required extensive repetitive use of the hands and constant standing and walking. Claimant on December 3, 1990 sustained bilateral hand injuries known as carpal tunnel syndrome. After surgical treatment claimant was released to return to work June 10, 1991 by the treating physician, Robert Jones, M.D. (Joint Exhibit A, page 104). As a result of the bilateral carpal tunnel syndrome claimant incurred permanent disability as evidenced by the impairment ratings offered. Dr. Jones opined on December 7, 1992, that claimant sustained 5 percent impairment of each upper extremity as a result of the work injury (Jt. Ex. A, p. 108). Martin Rosenfeld, D.O., Opined on August 17, 1992, that claimant sustained 14 percent of the body as a whole as a result of the bilateral carpal tunnel syndrome (Jt. Ex. A, p. 114). Dr. Rosenfeld placed severe work restrictions on claimant due to a lack of strength. Claimant was to avoid repetitive use of the hands, heavy lifting and pressure on the surgery scars. On September 12, 1994, Keith Riggins, M.D., opined that claimant sustained 12 percent impairment to the body as a whole as a result of the bilateral carpal tunnel syndrome. Dr. Riggins indicated that work restrictions should be placed on claimant similar to those offered by Dr. Rosenfeld (Jt. Ex. A, p. 122). Claimant returned to work for the employer but continued to experience difficulties with his hands as a result of the repetitive work. Claimant went off work on or about October 22, 1991 due to problems with his feet, and continued problems with his hands. It is found that claimant's functional disability to the hands is greater than indicated by the impairment. The severe work restrictions and continuing difficulty has with endurance work when involved in repetitive gripping indicates a functional disability of 25 percent to each hand. This converts to 26 percent permanent disability to the body as a whole using the Fourth Edition of the Guides to the Evaluation of Permanent Impairment, American Medical Association. Claimant sustained a cumulative trauma injury to his feet on October 22, 1991 caused by constant standing and walking at work. Claimant had a preexisting congenital deformity of the feet commonly known as flat feet. The work performed for the employer severely aggravated that condition eventually resulting in multiple surgeries and leaving claimant permanently and totally disabled. The final exposure to the cumulative trauma from work occurred on or about October 22, 1991. On that date it is found that claimant sustained bilateral simultaneous injuries to his feet. Claimant alleged that a second injury to the right foot occurred on November 18, 1991. Claimant had surgery on that date for his right foot. However, the last injurious exposure occurred on October 22, 1991. Therefore, the date of the subsequent surgery cannot be considered as an injury. Claimant alleged that on July 13, 1992 he sustained an injury to the left foot. On that date claimant sustained a surgery to the left foot as a result of the prior cumulative trauma aggravation of a preexisting condition. Claimant's last injurious exposure occurred on October 22, 1991. Therefore, the July 13, 1992 date cannot be considered as a date of injury. Claimant alleged an injury on October 23, 1992 to the right foot. Claimant had surgery on that particular date caused as a result of the prior cumulative trauma injury incurred on October 22, 1991. The last injurious exposure to the right foot occurred on October 22, 1991. Therefore, the October 23, 1992 incident cannot be considered an injury. In summary, claimant sustained one injury to the feet occurring on October 22, 1991, which was a bilateral cumulative trauma aggravation of a preexisting condition. The subsequent injury dates of November 18, 1991, July 13, 1992 and October 23, 1992 are encompassed within the first injury. Since no further exposure to cumulative trauma work occurred after October 22, 1991, no further injuries can be found after that date. Claimant did not inform the employer of the potential work-related injury within 90 days of October 22, 1991. Claimant was on notice effective August 28, 1991, that work was a possible cause of his bilateral foot pain (Jt. Ex. A, p. 9). Claimant asked the treating doctor for a statement that the bilateral foot condition was work-related on April 3, 1992 (Jt. Ex. A, p. 22 & 23). Claimant did not give the employer notice of a potential claim for the injuries to the feet within 90 days of April 3, 1992. Claimant finally gave the employer notice of the alleged work-related nature concerning the foot injuries on July 8, 1992 (Jt. Ex. A, p. 152). It is found that claimant failed to inform the employer of a potential workers' compensation claim related to his bilateral foot condition within 90 days of the date of injury or within 90 days of having knowledge that there was a potential workers' compensation claim. With respect to the injury of December 3, 1990, it is found that claimant reached maximum medical improvement on June 10, 1991, which is date that he was released to return to work by the treating physician. REASONING AND CONCLUSIONS OF LAW The first issue is whether claimant sustained injuries to the feet arising out of and in the course of employment on October 23, 1991, November 18, 1991, July 13, 1992 and October 23, 1992. 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). When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). 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). It is held that claimant sustained a bilateral aggravation injury to a preexisting condition on October 23, 1991 as a result of cumulative trauma sustained when working for the employer. It is held that claimant failed to establish cumulative trauma injuries to the feet on November 18, 1991, July 13, 1992 and October 23, 1992 because the last injurious exposure was incurred on October 22, 1991. The next issue is whether the claim for the injury of October 22, 1991 is barred pursuant to the notice provisions of Iowa Code section 85.23. Section 85.23 requires an employee to give notice of the occurrence of an injury to the employer within 90 days from the date of the occurrence, unless the employer has actual knowledge of the occurrence of the injury. The purpose of the 90-day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the facts surrounding the injury. The actual knowledge alternative to notice is met when the employer, as a reasonably conscientious manager, is alerted to the possibility of a potential compensation claim through information which makes the employer aware that the injury occurred and that it may be work related. Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). The time period for giving notice does not begin to run until the claimant as a reasonable person, should recognize the nature, seriousness and probable compensable character of the injury. The reasonableness of claimant's conduct is to be judged in light of claimant's education and intelligence. Claimant must know enough about the condition or incident to realize that it is both serious and work connected. Positive medical information is unnecessary if information from any source gives notice of the condition's probable compensability. Robinson, 296 N.W.2d at 812. Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). It is held that claimant failed to give the employer notice within 90 days of the date when claimant discovered that his foot injuries may be work-related. Therefore, the claim of October 23, 1991 is barred under Iowa Code section 85.23. The next issue concerns the extent of entitlement to permanent disability for the December 3, 1990 bilateral hand injuries. Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). It is held that claimant sustained bilateral simultaneous injuries and therefore must be compensated under a 500-week schedule pursuant to Iowa Code section 85.34(2)(s). It is further held that claimant sustained 26 percent permanent functional disability to the body as a whole as a result of the December 3, 1990 work injuries. The severe work restrictions imposed by Dr. Rosenfeld and Dr. Riggins indicate significant functional disability above that indicated by the impairment ratings. The commencement date is held to be June 10, 1991 as that is the date claimant was released to return to work for the December 3, 1990 hand injuries. The next injury concerns claimant's entitlement to Second Injury Fund benefits. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Since claimant has failed to establish a compensable second injury, benefits are denied pursuant to Iowa Code section 85.64. ORDER IT IS, THEREFORE, ORDERED: Defendants Pirelli-Armstrong Tire Corp., and Travelers Insurance Company are to pay claimant one hundred thirty (130) weeks of permanent partial disability benefits at the rate of three hundred thirty and 57/100 dollars ($330.57) per week commencing June 10, 1991 in file number 980837. It is further ordered that file number 1045148 is dismissed. It is further ordered that claimant shall take nothing from file numbers 1031618, 1044729, 1044728 and 1044727. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that costs of this action are assessed against defendants Pirelli-Armstrong Tire Corp., and Travelers Insurance Company pursuant to rule 343 IAC 4.33. It is further ordered that said defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1995. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Max Schott Attorney at Law 6959 University Ave. Des Moines, IA 50311-1540 Mr. Terry L. Monson Attorney at Law 100 Court Ave., Ste 600 Des Moines, IA 50309 Ms. Shirley A. Steffe Assistant Attorney General Dept. of Justice - Tort Claims Hoover State Office Bldg. Des Moines, IA 50319 5-1808, 5-2800 Filed February 27, 1995 Marlon D. Mormann BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALBERT O. KING, Claimant, vs. File Nos. 980837, 1031618 PIRELLI-ARMSTRONG TIRE CORP., 1045148, 1044727 1044728, 1044729 Employer, A R B I T R A T I O N and D E C I S I O N TRAVELERS INSURANCE COMPANY, and SECOND INJURY FUND OF IOWA, Insurance Carrier, Defendants. ___________________________________________________________ 5-1808 Claimant was granted 26 percent permanent disability to the body as a whole as a result of a bilateral simultaneous hand injury known as carpal tunnel syndrome. Claimant had severe work restrictions which indicted a higher permanent functional disability. 5-2800 Claimant had also incurred bilateral simultaneous aggravation injuries to the feet which rendered claimant permanently and totally disabled. The injuries to the feet were held barred by the notice provisions of Iowa Code section 85.23. The claims for injuries to the feet were dismissed.