BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHARLES ELLSWORTH, Claimant, vs. File No. 980915 UNVERFERTH MANUFACTURING, INC., A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Charles Ellsworth, claimant, against Unverferth Manufacturing, Inc., employer, hereinafter referred to as Unverferth Manufacturing, a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on March 25, 1991. On February 2, 1995, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. On March 25, 1991 claimant received an injury arising out of and in the course of employment with Unverferth Manufacturing. 2. Claimant is not seeking additional healing period benefits at this time. 3. The injury is a cause of a permanent industrial disability. 4. If permanent partial disability benefits are awarded, they shall begin as of August 31, 1992. 5. At the time of injury claimant's gross rate of weekly compensation was $314.00; he was married; and, he was entitled to two exemptions. Therefore, claimant's weekly rate of compensation is $203.70 according to the Industrial Commissioner's published rate booklet for this injury. 6. Medical benefits are not in dispute. ISSUES The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to permanent disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is not necessary to this decision as there was little dispute in the record as to the facts. The only dispute concerns the impact these facts have upon claimant's loss of earning capacity. Claimant worked for Unverferth Manufacturing from October 1989 until February 1993 when claimant resigned to work for another employer. Unverferth Manufacturing is a manufacturer of farm equipment and employs approximately 150 people. At the time of injury, claimant was a production worker assigned to the job of press break operator. After claimant received work restrictions, he was given temporary jobs until he was permanently reassigned to janitorial work within his restrictions. Claimant earned $7.85 per hour at the time of injury but soon thereafter his pay as a production worker was increased to $8.10. The janitorial job paid only $6.50 per hour. Claimant was performing the janitorial job when he resigned. According to his supervisor, claimant was a satisfactory employee and had good attendance but had a problem with talking to others during duty hours. The work injury occurred while lifting a heavy metal bar used to support parts on his press break machine. Claimant experienced the onset of upper and lower back pain thereafter requiring medical treatment. Claimant did not have a history of back problems before this incident. Claimant was initially treated by a family practice physician but when he failed to improve, his care was transferred to Arnold Delbridge, M.D., an board certified orthopedic surgeon. Dr. Delbridge remained his physician until September 1994 when claimant moved to Minnesota and began treating at the Mayo Clinic. Initial treatment by Dr. Delbridge remained conservative for the first several months. This treatment involved physical therapy, medication and periods of time off work or working with extensive restrictions on activity. Finally, when conservative care failed to alleviate the problems, Dr. Delbridge performed surgery on the lower back in November 1991. Following recovery from this surgery, claimant returned to work at Unverferth Manufacturing with permanent restrictions. Although Dr. Delbridge states that claimant's primary problem is congenital spondylolysis of the spine, he opines that claimant's permanent impairment and treatment to date is the result of the injury of March 25, 1991 at Unverferth Manufacturing which aggravated the preexisting condition. He opines that the lower back condition caused by the injury results in a 14 percent permanent partial impairment to the body as a whole. He does not relate any impairment to the upper back problems which are still ongoing according to claimant. The views of Dr. Delbridge are uncontroverted in the record. Therefore, the work injury of March 25, 1991 is found to be a cause of significant permanent partial impairment to the body as a whole resulting in both upper and lower back problems. More important to this industrial disability analysis is the activity restrictions permanently imposed by Dr. Delbridge consisting of no repetitive lifting over 25 pounds and maximum lifting of no more than 35 pounds. Claimant states that he occasionally exceeded these restrictions in his janitorial job at Unverferth Manufacturing and at his current job but is able to do so. Such activity restrictions prevent a return to the production job he had at the time of injury. However, Unverferth Manufacturing accommodated for these restrictions by providing suitable janitorial work, albeit with less pay. Claimant resigned from the janitorial job voluntarily because he did not like the work. He then took a job installing seamless gutters on houses in Minnesota which requires intermittent lifting and climbing. This job pays somewhat more than his janitorial job due to incentive pay but the job is seasonal. Claimant roughly makes about the same today as he did at Unverferth Manufacturing when he left. However, claimant likes the outdoors work. At the time of hearing, claimant was off work during his winter break and did not know whether he would return to the gutter job due to its distance from his home in Iowa. There was evidence in the record that claimant had an alcohol and drug abuse problem in the past but claimant states that he has been free of such abuse since 1988, prior to his employment at Unverferth Manufacturing. There is nothing in the record to suggest otherwise. Claimant's past employment history is a bit unusual due to the large number of jobs, 15 or so, that he has held in the past. In most cases, claimant voluntarily left due to dissatisfaction with the work or with his bosses but he was fired from a few jobs due to lack of attendance. Claimant attributes this to his past drinking problems. Claimant has only worked for two employers, one of them Unverferth Manufacturing, since 1988 which is consistent with his claim of recovery from substance abuse. Claimant is a high school graduate and relatively young at age 32. Most of claimant's past employment involves work which routinely exceeds his current work restrictions, such as meatpacking and building construction. Also, claimant at one time possessed state and national certifications after completing a training course as an emergency medical technician assistant (EMTA) and he held jobs as an ambulance and hospital attendant. Claimant was fired from some of these jobs and he quit the rest. He stated at hearing that he did not like the work due to stress. He has since lost his certifications. Claimant states that such work today would not be possible due to his back problems. However, claimant admitted at hearing that additional retraining would not be a problem for him intellectually Consequently, although claimant is currently employed, he suffered a significant loss of income from his inability to return to production work at Unverferth Manufacturing. Unverferth Manufacturing only partially accommodated for claimant due to his pay cut. Although claimant has indicated that his upper back is causing more problems and may require additional treatment in the future, these problems were not shown to materially aggravate his industrial disability at this time. From examination of all of the factors of industrial disability, it is found that the work injury of March 25, 1991 was a cause of a 25 percent loss of earning capacity. CONCLUSIONS OF LAW As the claimant has shown that the work injury was a cause 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. l, No. 3 Iowa Indus. Comm. Decn. 654, 658 (App. Decn., February 28, 1985). In the case sub judice, it was found that claimant suffered a 25 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 125 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 25 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. ORDER 1. Defendants shall pay to claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at a rate of two hundred three and 70/l00 dollars ($203.70) per week from August 31, 1992. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid. 3. Defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1995. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Mr. Stephen J. Smalling Attorneys at Law 135 S LaSalle St STE 1527 Chicago IL 60603 Mr. Michael A. McEnroe Attorney at Law 3151 Brockway Rd PO Box 810 Waterloo IA 50704 5-1803 Filed February 27, 1995 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHARLES ELLSWORTH, Claimant, vs. File No. 980915 UNVERFERTH MANUFACTURING, INC. A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY BERG, Claimant, vs. File No. 981109 HY-VEE FOOD STORES, INC., A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL INSURANCE COMPANIES, Insurance Carrier, Defendants. ----------------------------------------------------------------- STATEMENT OF THE CASE Claimant, Betty Berg, has filed a petition in arbitration and seeks workers' compensation benefits from Hy-Vee Stores, Inc., defendant employer, and Employers Mutual Company, defendant insurance carrier, on account of an injury on January 9, 1990 arising out of and in the course of her employment with defendant employer. The case was heard before the undersigned on March 27, 1995 at Storm Lake, Iowa. The evidence in this case consists of the testimony of claimant and Bob Teeselink and joint exhibits 1 through 52. The case was considered fully submitted at the close of the hearing. ISSUES The parties presented the following issues for resolution: 1. Whether claimant is entitled to permanent partial disability benefits; and, 2. Whether claimant's proper rate of weekly compensation benefits should include bonuses she received. FINDINGS OF FACT The undersigned, having heard and considered all of the evidence, makes the following findings of fact: Claimant, Betty Berg, was married and the mother of two children, both of whom were grown and out of the home, at the time of her injury. On the date of the hearing she was 49 years old. She graduated from high school in 1963 and has had no additional formal education since that time. After high school she got married and stayed home to raise her children for approximately 15 years. In the late 1970s through the early 1980s she worked part-time, approximately 20 hours per week, as a waitress. She was paid $4.90 per hour when she started and was paid $5.25 when she left. From 1981 until 1985 she ran her own business, Ye Olde Yarn Shop. She ran the business by herself with only one part-time person who worked only when the claimant wasn't able to be in the store. The business was unsuccessful and claimant was not able to draw a salary from the business. In 1986 she began with defendant employer as a checker at the Hy-Vee store in Cherokee, Iowa. She worked part-time to begin with and was paid around $5.00 per hour. Her duties included stocking shelves, stocking the drawers under the shelves, and dusting as well as checking customers' groceries. After one year she began to work regular time, as opposed to part-time. In 1987 she became the non-food manager. She was responsible for all of the health and beauty aids products. She did not supervise any employees. Her supervisors were the store manager, the assistant store manager, the shift manager and the back-up shift manager, depending on who was on duty while she worked. The store had other managers such as the meat manager, frozen food manager and the produce manager. Her responsibilities were to order and stock shelves of non-food or general merchandise, from rubber gloves to bicycles and televisions. She would stock shelves from two of the three delivery trucks that came each week. A high school girl would stock from the third truck each Friday night. On occasion, she was called upon to check or sack groceries when the store was busy. On January 9, 1990, claimant was doing inventory work in a small basement room. When she reached up to get a box of candy she slipped and fell and seven or eight boxes fell on top of her. The accident happened in the morning approximately in the middle of her shift. She stiffened up right away after the accident, but continued to work and went to work the following day. She continued to be stiff and sore but thought that eventually the pain would clear up on its own. Instead of improving the pain got progressively worse, spreading from her lower back down into and throughout her left leg to the ankle. She eventually sought medical care because the pain was not diminishing. She received conservative treatment initially including analgesics and anti-inflammatory drugs, two periods of physical therapy, with heat and massage for approximately six weeks did not reduce her pain either. Numerous epidural floods, ordered by Mark Wheeler M.D., did not significantly reduce her pain either. (Joint Exhibit 1, page 1) She was eventually referred to Ralph Reeder, M.D., a neurosurgeon. He ordered a myelogram and a CT scan which indicated significant disc herniation at L5-S1 and a small bulge at the L4-5 disc space. (Jt. Ex. 1, p. 2; Jt. Ex. 3, p. 1) On April 15, 1991, claimant underwent microsurgical diskectomy at L5-S1 with left L5 foraminotomy and L5 hemilaminectomy. (Jt. Ex. 4, p. 1) After a recovery period in the hospital claimant was discharged with a good prognosis. (Jt. Ex. 6) She returned to Dr. Reeder on May 28, 1991 complaining that she still was experiencing pain when she tried to sit. The pain was in her left side and radiated down into her left calf. Her pain was somewhat diminished from her preoperative state. If her pain did not abate Dr. Reeder planned a follow-up MRI or myelogram. (Jt. Ex. 7) She was given a prescription for Darvocet, Medrol Dosepak and Orudis. (Jt. Ex. 8) Claimant's pain did not subside so Dr. Reeder ordered a myelogram followed by a CT scan which revealed a large pseudomeningocele that appeared to be compressing the S1 nerve root. (Jt. Ex. 9; 11) Claimant underwent additional surgery on June 19, 1991 where the pseudomeningocele was repaired and a lumbar drain inserted. (Jt. Ex. 13) After a recovery period in the hospital claimant was released with relief of her leg pain and only minimal back pain still present. Her prognosis for continued recovery was good. (Jt. Ex. 15, p. 2) A recheck visit on August 1, 1991 revealed that claimant was making slow progress and had less pain than before surgery. She was to remain off work and undergo physical therapy. (Jt. Ex. 16) On September 5, 1991, Dr. Reeder released claimant to return to work part-time with a 20 pound weight lifting restriction. (Jt. Ex. 17) Claimant was unable to continue working in September due to leg pain. She returned to Dr. Reeder on October 4, 1991 where he changed her medication and kept her off work for an additional two weeks. (Jt. Ex. 18) Dr. Reeder thought that claimant would be able to return to work on October 18, 1991, but if she needed further time off he would consider sending her to a work hardening program. (Jt. Ex. 19) She was released to return to work part-time with no lifting in November of 1991. (Jt. Ex. 21) Through January, February, March and April of 1992 claimant attended a work-hardening program at Back Care, Inc. under the supervision of John D. Kuhnlein, D.O. (Jt. Ex. 24-28) She made good progress during the program and when released had a 25 pound lift/push/pull/carry restriction. She was also instructed to wear supportive footwear in the work place to provide a good base for her to stand on. (Jt. Ex. 28) On April 24, 1992, Dr. Reeder opined that claimant had reached maximum medical improvement and he did not recommend further surgical intervention. Per the AMA Guides to the Evaluation of Permanent Impairment, Third edition, Dr. Reeder determined that claimant had a 12 percent functional impairment rating as a result of both of her surgeries. He encouraged her to continue her work activities. (Jt. Ex. 23) Claimant returned to work full time in March, 1992. Claimant still works for Hy-Vee as the non-food manager, the same job she held prior to her injury. She works 40 hours per week and is currently paid $7.40 per hour. She rarely misses work because of her back injury. She continues to suffer from ongoing pain, but that has not stopped her from being able to complete her job duties and responsibilities. Checking groceries is the most bothersome activity she is called on to perform. Checking groceries does not violate her work restrictions. She has not seen any physician for her back since being released by Dr. Reeder. She currently takes no prescription medication. Defendant employer complies with her work restrictions. If claimant has merchandise or products to lift that weigh over 25 pounds she can ask other employees for assistance. Only two of the many types of managers employed by Hy- Vee are paid by the hour; non-food manager and the frozen foods manager. The other managers are all paid more than claimant is. Contrary to claimant's assertion, there is no evidence to support a finding that claimant is paid less or by the hour because she sustained a work-related injury. By her own estimation claimant has not lost any wages as a result of her injury. (Jt. Ex. 51, p. 41) Claimant would not be able to be a shift manager now because of her lifting restrictions and the lifting requirements of a shift manager. Claimant is not pursuing becoming a shift manager now, nor did she pursue becoming a shift manager during 1988 or 1989 prior to her work injury. (Cl. Ex. 51, p. 41) There is no evidence to indicate that claimant would have become a shift manager if she had not sustained a work-related injury. Bob Teeselink, an assistant store manager, testified that claimant has received all raises that she is entitled to. Claimant makes no assertion that she was denied a raise because of her work-related injury. Joint exhibit 52 is claimant's payroll record. On different occasions claimant and other employees were given a monthly bonus. Payment of the bonuses is strictly at the discretion of the store manager. The store manager can decide at any time to stop paying or start paying bonuses. The bonuses received by claimant were irregular bonuses. ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is claimant's entitlement to permanent partial disability benefits. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). Since claimant's injury is to her back, an evaluation of her industrial disability is mandated. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant has had two back surgeries. She is not completely pain free and may never be. She has returned to the same job she had prior to her injury. She now makes more money than she did prior to her injury. Her employer complies fairly well with her work restrictions. She has a 12 percent functional impairment rating from Dr. Reeder, her treating physician. Her recovery period from both surgeries was fairly lengthy. It took almost one year before she was able to return to work full time. Her current work restrictions, that is, no lifting, pulling, pushing or carrying over 25 pounds make her a less attractive employee to other potential employers. Based on all the factors that comprise industrial disability, it is determined that claimant has sustained a 10 percent industrial disability. The final issue to be determined is whether claimant's bonuses should be included in the calculation of her weekly gross earnings to determine her rate of workers' compensation benefits. Iowa Code section 85.61(3) provides: "Gross earnings" means recurring payments by employer to the employee for employment, before any authorized or lawfully required deduction or withholding of funds by the employer, excluding irregular bonuses, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances, and the employer's contribution for welfare benefits. (Emphasis added.) The bonus program of defendant employer is very much like the bonus program run by Rolscreen Company in Noel v. Rolscreen, 475 N.W.2d 666 (Iowa App. 1991). In determining that the Rolscreen bonus was an irregular bonus the court held, "[t]he bonus program is a voluntary program that can be discontinued by the employer for any reason. The program can be changed or altered in any manner or replaced with another fringe benefit plan at the employer's discretion." Id. at 667. Like the bonuses in the Noel case, claimant's bonuses were of varying amounts and dependent upon the manager's discretion. At any time the manager without reason may stop the bonuses for all employees. The evidence supports the finding that claimant's bonuses were "irregular bonuses" as that term is used in Iowa Code section 85.61(3) and thus should not be included in the calculation of her gross earnings. Claimant's gross weekly wages were $200.77 and with two exemptions her proper rate of weekly benefits is $138.42. ORDER THEREFORE, it is ordered: That defendants pay claimant fifty (50) weeks of permanent partial disability at the rate of one hundred thirty-eight and 42/100 dollars ($138.42) commencing on March 15, 1992. That defendants be given credit for benefits previously paid. That defendants pay accrued benefits in a lump sum. That defendants pay interest as set out in Iowa Code section 85.30. That defendants pay the costs of this action. That defendants file claim activity reports as required by the agency. Signed and filed this ____ day of May, 1995. ________________________________ TERESA K. HILLARY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Wills J Hamilton Attorney at Law 606 Ontario St P O Box 188 Storm Lake IA 50588 Mr Robert C Landess Attorney at Law 2700 Grand Ave Des Moines IA 50312 5-1803; 5-3001 Filed May 17, 1995 Teresa K. Hillary BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY BERG, Claimant, vs. File No. 981109 HY-VEE FOOD STORES, INC., A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL INSURANCE COMPANIES, Insurance Carrier, Defendants. ------------------------------------------------------------------- 5-1803; 5-3001 Claimant, age 49, suffered a ruptured disc after some boxes fell on her. She had two surgeries and returned to the same job she had prior to the injury. She now makes more money. She has a 25 pound permanent lift/push/pull/carry restriction. Claimant awarded 10 percent industrial disability. Claimant received bonuses that were determined to be irregular bonuses pursuant to Iowa Code section 85.61 and not included in the calculation of her gross earnings. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GARY BARBEE, Claimant, File Nos. 1060107 vs. 1053452 981275 JOHN MORRELL & CO., A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE CO. AND NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. ________________________________________________________________ STATEMENT OF THE CASE This is a consolidated proceeding in arbitration brought by Gary Barbee, claimant, against John Morrell & Co., employer, and Home Insurance Company and National Union Fire Insurance Company, insurance carriers, defendants, for workers' compensation benefits as a result of alleged injuries on March 14, 1991, February 2, 1993 and May 4, 1993. On April 6, 1995 a hearing was held on claimant's petitions and the matter was considered fully submitted at the close of this hearing. At the request of claimant and without objection from defendants, petitions for alleged injuries on October 14, 1991 and April 22, 1992, file numbers 1053453 and 1054918 respectively, will be dismissed herein. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. On March 14, 1991 and February 2, 1993, claimant received injuries arising out of and in the course of employment with Morrell. 2. Claimant is seeking additional temporary total or healing period benefits only from May 4, 1993 until June 7, 1993, and defendants agree that he was not working at this time. 3. If any of the injuries are found to have caused permanent disability, the type of disability is either a scheduled member disability to right or left arm. 4. If permanent partial disability benefits are awarded for the March 14, 1991 injury, they shall begin as of November 14, 1991. If permanent partial disability benefits are awarded for either the February 2, 1993 or May 4, 1993 injuries, they shall begin as of November 14, 1991. 5. At the time of above injuries claimant was married and entitled to four exemptions. Claimant's weekly rates of compensation for the March 14, 1991, February 2, 1993 and May 4, 1993 injuries are $241.98, $266.09 and $245.13 respectively. 6. There is no currently pending dispute as to medical benefits. ISSUES The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is unnecessary to this decision as defendants did not place claimant's credibility at issue during the hearing. Claimant, Gary Barbee, worked as a laborer for Morrell in its meat processing plant in Sioux City, Iowa from 1986 until May 4, 1993, at which time he was terminated as there was no work available for him that would be consistent with his physician imposed work restrictions against repetitive use of his hands. The first injury occurred as a result of heavy gripping and grasping of his left hand resulting in chronic tendinitis. Following the onset of wrist and hand pain, swelling and numbness, Gary was taken off work initially for almost three months. He returned to one-handed work in June 1991. Gary remained on light, one-handed duty during the balance of his employment with Morrell. Gary's care was transferred to W. O. Samuelson, M.D., in June 1991. Dr. Samuelson treated Gary conservatively for this condition with splints, medication and physical therapy until January 1991 when he opined that claimant suffered a four percent permanent impairment to the hand as a result of his chronic tendinitis. He also felt that Gary, at that time, should be permanently restricted from repetitive left hand use. Another one time evaluating physician in November 1991 felt that claimant had no impairment and felt the problem to be trivial. The opinions of this evaluator are rejected as he had so little contact with claimant and his views appear rather extreme. Gary also complains of some left elbow problems but no physician has rated such a condition. Consequently, it is found that the injury of March 14, 1991 was a cause of a four percent loss of use to the left hand. The second injury on February 2, 1993 was for pain, swelling and numbness in the right hand, similar to the left hand problems. Treatment of the right hand condition was diagnosed as carpal tunnel syndrome by Raymond M. P. Sherman, M.D. Dr. Sherman also diagnosed a left elbow problem called Guyon's canal compression syndrome. Treatment of this condition has also remained conservative although Dr. Sherman recommends surgery. To date, Gary has refused surgery on the basis that he has had similar symptoms on the left and Dr. Samuelson has not recommended surgery. He also knows friends who have had surgery for similar conditions and the surgery has made them worse. It was not until the imposition of restrictions against repetitive gripping, grasping and lifting of his right hand and arm on May 4, 1993 that claimant lost his job at Morrell. Dr. Sherman made these restrictions permanent in June 1993. Although Gary had a right hand injury and symptoms in February 1993, it was not until May 4, 1993 that the entire set of right sided symptoms, wrist and elbow, manifested themselves to the point that claimant was compelled to leave Morrell's employment. Therefore, the most appropriate injury date for the right arm condition, especially for permanent effects, is May 4, 1993. Therefore, it is found that on May 4, 1993, claimant suffered an injury to this right arm which arose out of and in the course of his employment with Morrell. Dr. Sherman was the only physician to rate the right arm condition. He felt that claimant suffered 20 percent impairment to the right extremity due to the carpal tunnel and Guyon's tunnel conditions. However, he noted that the AMA Guides provide ratings for permanency only after unsuccessful treatment and he notes that claimant refuses the surgery he recommends. He opines that claimant's impairment after surgery on the right would be reduced to 10 percent. The record indicates that two physicians, Samuelson and Sherman, have treated similar wrist conditions but only one recommends surgery. Claimant's concern appears honest. In the expertise and experience of this deputy commissioner, bad results, although rare, can indeed occur from even carpal tunnel wrist surgery, such as the onset of scar tissue development or even sympathetic reflex syndrome which can render the arm totally useless. It is therefore found that the refusal of surgery is reasonable. It is therefore found that the injury of May 4, 1993, not February 2, 1993, is a cause of a 20 percent permanent loss of use of the right arm. Claimant was off work after May 4, 1993 and Dr. Sherman did not arrive at the conclusion that the right arm condition was permanent until June 7, 1993. It is found that Gary did not reach maximum healing for the May 4, 1993 injury until June 7, 1993. 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. In this case, the injury date as plead for the left hand problems is correct under McKeever but for the right arm condition the most appropriate date of injury, especially in awarding permanency, is the date claimant lost his job at Morrell. II. The parties stipulated that these injuries resulted in scheduled member disabilities. When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Iowa Code section 85.34(2). Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922). Pursuant to Iowa Code section 85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in those cases where the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). In the case sub judice, it was found that claimant suffered a 4 percent permanent loss of use of his left hand from the 1991 injury. Based on such a finding, claimant is entitled to 7.6 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(l) which is four percent of 190 weeks, the maximum allowable number of weeks of disability for an injury to the hand in that subsection. It was further found that claimant suffered a 20 percent permanent loss of use of his right arm from the May 4, 1993 injury. Based on such a finding, claimant is entitled to 50 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(m) which is 20 percent of 250 weeks, the maximum allowable number of weeks of disability for an injury to the arm in that subsection. Claimant's entitlement to permanent partial disability also entitles him to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. As maximum healing did not occur until June 7, 1993, healing period benefits will be awarded accordingly. ORDER 1. The claims in file numbers 1054918, 1053453 and 1060107 are dismissed. 2. In file number 981275, defendants shall pay to claimant seven point six (7.6) weeks of permanent partial disability benefits at a rate of two hundred forty-one and 98/l00 ($241.98) per week from November 14, 1991, with defendants receiving credit against this award for benefits already paid as set forth in the hearing report. 3. In file number 1053452, defendants shall pay to claimant fifty (50) weeks of permanent partial disability benefits at a rate of two hundred forty-five and 13/l00 ($245.13) per week from June 8, 1993 and healing period benefits at the same rate from May 4, 1993 through June 7, 1993 with defendants receiving credit against this award for benefits already paid as set forth in the hearing report. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of these actions pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fees paid in all of these cases, including those dismissed. 6. 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 May, 1995. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Daryl L Hecht Attorney at Law 614 Pierce St PO Box 27 Sioux City IA 51102 Ms. Rita C. Grimm Attorney at Law 701 Pierce St STE 200 PO Box 3086 Sioux City IA 51102 5-1803 Filed May 19, 1995 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GARY BARBEE, Claimant, File Nos. 1060107 vs. 1053452 981275 JOHN MORRELL & CO., A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE CO. AND NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. ________________________________________________________________ 5-1803 Nonprecedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GARY BARBEE, Claimant, File Nos. 1060107 vs. 1053452 981275 JOHN MORRELL & CO., O R D E R Employer, N U N C and P R O HOME INSURANCE CO. AND NATIONAL UNION FIRE T U N C INSURANCE COMPANY, Insurance Carrier, Defendants. ________________________________________________________________ Due to typographical error, the following shall be changed in the arbitration decision filed May 19, 1995: 1. The second sentence in the paragraph numbered "4" on page 2 of the decision related to stipulations of the parties is amended by striking the words in the second clause, "November 14, 1991" and inserting in lieu thereof the following words, "June 8, 1993." 2. The balance of the decision including the specific order awarding benefits was not in error and shall remain unchanged. Signed and filed this ____ day of June, 1995. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Daryl L. Hecht Attorney at Law 614 Pierce St PO Box 27 Sioux City IA 51102 Ms. Rita C. Grimm Attorney at Law 701 Pierce St STE 200 PO Box 3086 Sioux City IA 51102 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARCOS M. MARIN, : : Claimant, : File No. 981301 : vs. : A R B I T R A T I O N : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE Claimant, Marcos Marin, seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against self-insured defendant employer, IBP, Inc. He asserts a work injury either to the wrist and hand or to the neck, head and shoulder on April 2, 1991. This cause came on for hearing in Burlington, Iowa on September 29, 1992. Claimant had lost touch with his attorney and failed to appear. No testimony was taken. The record consists of joint exhibits 1-15 and, under Iowa Code section 17A.12(6), pleadings, motions and intermediate rulings filed in the contested case. The latter includes certain answers to interrogatories filed by claimant in respond to a motion to compel. ISSUES The parties have stipulated to the existence of an employment relationship on April 2, 1991, to the rate of compensation ($219.07 per week), and that entitlement to medical benefits is no longer in dispute. Issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of his employment on April 2, 1991; 2. Whether there exists a causal relationship between the asserted injury and temporary and/or permanent disability; 3. The nature and extent of each, if any. FINDINGS OF FACTS The undersigned deputy industrial commissioner finds: Claimant's petition, filed May 1, 1991, asserted a cumulative injury to the following parts of the body: "wrist, (finger locks) arm." In his answer to interrogatory 9 served June 15, 1992, claimant asserted injuries to the Page 2 neck, head and shoulder. He made no mention of injuries to the wrist or arm. The medical records introduced into evidence show that claimant developed a ganglion cyst on the volar aspect of the right hand which was surgically excised by Calvin E. Atwell, M.D., on April 2, 1991. He subsequently complained of triggering and stiffness in the right four finger and underwent a surgical release by Dr. Atwell on September 4, 1991. Dr. Atwell wrote on July 20, 1992, that claimant had no permanent impairment and was released to return to regular duty with a restriction against use of a Wizard knife. Claimant had been using the Wizard knife when he developed tendonitis in his right hand and Dr. Atwell felt it appropriate that he refrain from the use of that instrument in hopes of preventing further problems. No medical evidence causally relates either development of the ganglion cyst or right fourth finger tendonitis to work activities. Much of the documentary evidence submitted is in Spanish, a language in which this writer is functionally illiterate. An effort was made to review that evidence, despite this shortcoming, but nothing contrary to the above findings was immediately apparent. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as Page 3 other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). As noted, there is much confusion as to the nature of Mr. Marin's complaints. The record is essentially barren of any work injury affecting the neck, head and shoulder. There is evidence of physical problems to the right wrist and right fourth finger, but no medical evidence causally relates either problem to work activities. Accordingly, claimant has failed to meet his burden of proof in establishing an injury arising out of and in the course of employment. Other issues are thereby rendered moot. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing. The costs of this action are assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of October, 1992. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr James P Hoffman Attorney at Law Middle Road PO Box 1087 Keokuk Iowa 52632-1087 Mr John M Comer Attorney at Law PO Box 515 Dept #41 Dakota City Nebraska 68731 3700 Filed October 12, 1992 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARCOS M. MARIN, Claimant, File No. 981301 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 3700 Claimant failed to appear for hearing. Record consisted of documentary evidence and, under Iowa Code section 17A.12(6), pleadings and motions. The latter included answers to interrogatories filed in a resistance to a motion to compel. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DWIGHT KRENZ, : : Claimant, : : vs. : : File No. 981304 HOWARD CONSTRUCTION COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Dwight Krenz, claimant, against Howard Construction Company, employer, and CNA Insurance Company, insurance carrier, for benefits as the result of an injury which occurred on August 22, 1990. A hearing was held in Sioux City, Iowa, on June 16, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by David A. Lester. Defendants were represented by Michael P. Jacobs. The record consists of the testimony of Dwight Krenz, claimant; Randy Howard, employer and joint exhibits 1 through 25. Both attorneys submitted a brief description of disputes at the time of the hearing. PRELIMINARY MATTERS The issue of causal connection between the alleged injury and disability and the issue of rate, both of which were designated as hearing issues on the hearing assignment order, were agreed to and withdrawn as hearing issues at the time of the hearing. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant is entitled to temporary total disability benefits, and if so, the extent of benefits to which he is entitled. Whether claimant is entitled to permanent partial disability, and if so, the extent of benefits to which he is entitled. Page 2 Whether claimant is entitled to an additional 30 days of benefits for the reason that defendants did not give written notice that they were converting temporary disability benefits to permanent partial disability. FINDINGS OF FACT entitlement to temporary total disability Is is determined that claimant is entitled to 33 weeks of healing period benefits from the date of the injury on August 22, 1990 until April 10, 1991, the date on which it was determined that he had reached maximum medical improvement. Iowa Code section 85.34(1). Claimant was operating a scraper for employer on August 22, 1990, stripping dirt to obtain clay for a brickyard near Adel, Iowa, when a lip of the scraper, which weighed approximately 1200 to 1600 pounds, fell on claimant and employer and pinned them to the machine. Claimant was struck in the left shoulder and was initially pinned between the lip and the scraper blade. His left arm felt dead and numb and he could not do anything with it. Claimant was taken to the emergency room at Iowa Methodist Hospital in Des Moines where the emergency room physician diagnosed abrasions and brachial plexus contusion. He was taken off work for 24 hours. It was noted that he had a full range of motion of the left arm but that he complained that his left arm was numb and not fully functioning. An x-ray of the left shoulder indicated no fracture or dislocation was identified. An x-ray of the cervical spine identified no fracture or dislocation. Tylenol 3 was prescribed and claimant was released with instructions to have his arm rechecked if the numbness continued (exhibit 2). Claimant returned to the hospital emergency room on August 27, 1990, to have his left hand paresthesia rechecked. He was continued off work for that week but told to return if he saw no improvement (ex. 3). Claimant returned to the emergency room on September 4, 1990, with continued radicular symptoms in his left arm. It was noted that he had a little less grip in his left hand and if he turns his neck a certain way he experienced pain down his left arm. He was instructed to return on September 6, 1990, for an MRI (ex. 4). The MRI taken on September 6, 1990, of the cervical spine, disclosed degenerative disc disease with minimal posterior spurring at C4-5 and C6-7 with mild diffuse disc bulges at each of these levels and what appeared to be a superimposed left posterolateral disc herniation at C4-5 which did not produce any deformity or deviation of the cervical cord. The cervical cord was normal in appearance (ex. 5). Claimant saw Robert A. Hayne, M.D., on September 7, 1990. Dr. Hayne's physical examination noted there was sensory blunting over the lateral aspect of the hand, Page 3 forearm and arm on the left. He added there was some weakness for extension of the left forearm. He noted there was a questionable protrusion of the intervertebral discs between the fourth and fifth lumbar segments on the left side and stated claimant was a candidate for cervical myelogram which was scheduled for September 19, 1990, to determine whether claimant had a herniated disc in the neck (ex. 8, p. 1). On September 19, 1990, Dr. Hayne noted that examination of the upper and lower extremities showed sensory diminution over the lateral aspect of the left forearm and hand. There was some weakness of extension of the left forearm which was estimated to be 50 percent of normal strength (ex. 6, p. 8). The CT scan on September 19, 1990, of the cervical spine, disclosed small posterior osteophytes present at the C3-4 and C4-5 levels which produced no evidence of nerve root or cord compromise (ex. 6, p. 16). The cervical myelogram performed on September 19, 1990, indicated there may be some minimal protrusion of the C5-6 intervertebral disc bilaterally, but no definite evidence of nerve root protrusion was identified (ex. 6, p. 19). Claimant testified that Dr. Hayne said that he was going to operate and perform an anterior discectomy the following morning. Claimant said he became scared, questioned whether he needed surgery, and never returned to see Dr. Hayne again as a treating physician. Claimant saw Scott P. Burtis, D.C., on September 10, 1990, one time. Dr. Burtis diagnosed myospasm, C5 subluxation and thoracic subluxations. He indicated claimant had been totally unable to work from August 22, 1990 until September 12, 1990. Diane McGuire, R.N., C.I.R.S., a rehabilitation specialist and a consultant, was retained to assist claimant in October 1990. She accompanied claimant to see William S. Chalgren, M.D., a neurologist, on October 26, 1990. He said claimant had no complaints about his head, vision, hearing, talking, chewing, swallowing, or breathing. Claimant felt his mind worked fine. He reported claimant related that he had some occasional headaches, but he's always had occasional headaches and this was not worse. Dr. Chalgren's neurological examination was essentially normal except some slight numbness to light touch in the left upper extremity, but there was no definite loss of feeling. The doctor examined all of the radiological reports that had been performed to date. Dr. Chalgren concluded: I am not sure that Mr. Krenz has a specific nerve irritation from a specific ruptured intervertebral disc. The findings are not conclusive. I would suggest that he may have suffered from a traumatic neuritis of the upper part of the brachial plexus when he was struck by the machinery. If that is the case he should Page 4 improve. The examination did not reveal any definite loss of nerve function and if, in fact, the damage was a bruising of the nerve he should receive a good return of function.... (exhibit 13, page 12) Both claimant and McGuire did not want to continue with Dr. Chalgren because he had white hair, appeared elderly and claimant seemed to be the only patient that he had in the office that day. Therefore, McGuire, with the consent of claimant, arranged for claimant to see Daniel J. McGuire, M.D., an orthopedic surgeon, on November 28, 1990. Dr. McGuire (no relative of Diane McGuire) noted that claimant has been off work since the injury but admitted that he was getting slowly better. The doctor examined claimant's radiological studies and found nothing to indicate a huge cutoff of a nerve root on any side. He determined there was a little wear and tear arthritis to account for his minor neck pain. Otherwise, his disc spaces looked relatively healthy and the doctor concluded, "Everything looks very good." (ex. 10, p. 1). Dr. McGuire ordered an EMG and it disclosed some changes on the C6 level which fit with his subjective complaints of numbness and tingling in his thumb, index and long finger on the left hand (ex. 7). It also fit with Dr. McGuire's finding of a little decreased sensation. He concluded that claimant may have some type of brachial plexus injury that was not amenable to operative intervention on his cervical spine. His impression was left C6 radiculopathy, source unclear, and his prognosis was good, hopefully long-term disability will be minimal. He kept claimant off work and ordered isometric neck exercises and some range and motion and strengthening exercises for his left upper extremity (ex. 10, p. 2). Claimant received physical therapy at the Fairmont Community Hospital from December 5, 1990 through December 26, 1990. Bruce A. Klutz, physical therapist, wrote on December 26, 1990, that he treated claimant for intermittent left arm numbness and triceps weakness and pain when he turns his head to the left or uses his arms above the horizontal. Rotation of his head to the left was limited in the last 10 degrees, otherwise, his cervical range of motion was normal. His strength and endurance were decreased and markedly deconditioned. The therapist's final remarks were that claimant showed very little change, his motivation was low and that he needs to work on reconditioning (ex. 14, p. 6). Claimant returned to see Dr. McGuire on December 27, 1990, at which time he released him to work three to four hours per day with no lifting greater than 30 pounds and if he is able to tolerate that he may increase his workload gradually. He added he will do no damage to himself by attempting to work. Since claimant was moving to Sioux Falls, South Dakota, Specialist McGuire arranged for claimant to see Joseph R. Page 5 Cass, M.D., on February 11, 1991, who agreed with Dr. McGuire, Dr. Hayne and Dr. Chalgren that claimant probably had a left C6 nerve root irritation. Since Dr. Cass did not do cervical discectomies, he wanted claimant to see a neurosurgeon. Claimant complained of low back pain and an x-ray on February 11, 1991, showed narrowing and degenerative disc disease at the L5-S1 level from anterior osteophytic spur formation at the inferior aspect of the body of L5 and the superior aspect of S1 (ex. 15, pp. 1, 2, & 5). Claimant did not see a neurosurgeon for the reason that he was incarcerated from February 1991 to May 1991. During that period of time he developed temporary high blood pressure and was treated by R.L. Zemke, M.D., from March 7, 1991 to April 18, 1991. The notes of Dr. Zemke make no mention of claimant's work injury or any complaints caused by the work injury. On April 10, 1991, Dr. McGuire wrote that he felt strongly that this gentleman needs to get on with his life. He said that claimant could perform his cardiovascular exercises and isometric neck strengthening exercises while in jail. He said that initially claimant had some motor weakness along the C7 level but that had resolved. He had some numbness and tingling along the C6 distribution but that was almost completely resolved. His EMG in November 1990 was basically normal except for perhaps some C6 slight nerve root irritation, but in view of the fact that his myelogram and MRI were negative, the doctor said there cannot be too much wrong there. Dr. McBride concluded: I believe he has reached maximum medical improvement. I believe, in light of the fact that he has minimal objective findings, that his permanent partial disability rating is at 1%, based on his questionably positive EMG and his slight decrease in his range of motion of his cervical spine. I would place no long term restrictions on him. (ex. 10, p. 4). Dr. McBride added that claimant may do things that cause him to have aches but they will do his body any damage. Claimant saw Dr. Hayne again for an independent medical examination on October 7, 1991. His neurological examination was essentially negative except for some marked sensory blunting over the radial three fingers of the left hand extending up into his forearm and arm over the medial aspect. He added that claimant has more or less constant pain in the base of his neck and in the upper dorsal spine area. The neurological examination on October 7, 1991, showed no significant change over the neurological examination performed by Dr. Hayne on September 7, 1990. A repeat MRI performed on October 4, 1991, was compared to the MRI made on September 6, 1990, and it was reported that the cervical vertebrae continue to appear normal in alignment Page 6 and position. The disc at C6-7 bulges posteriorly a very small amount, but did not appear to be producing significant compression or distortion of the thecal sac. The nerve roots and thecal sac appeared normal. The radiologist reported that no acute abnormality was seen (ex. 24, p. 14). Dr. Hayne's final diagnosis was spondylosis of the cervical spine involving the third, fourth, fifth, and sixth cervical interspaces to a relatively mild degree. Dr. Hayne added that this condition was aggravated by the trauma that he sustained back on August 22, 1990. The doctor had no further specific recommendations insofar as treatment was concerned. At no point does Dr. Hayne ever indicate that claimant can return to work, substantially similar work, or that he has attained maximum medical improvement. Therefore, Dr. Hayne's testimony gives us no assistance on when healing period should end (ex. 8). On the contrary, Dr. McGuire specifically stated on April 10, 1991, "I believe he has reached his maximum medical improvement." (ex. 10, p. 4). Dr. McGuire also awarded a permanent impairment rating on this date. Consequently, it is determined that the healing period ended on April 10, 1991. Healing period generally terminates at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981). Stated another way, it is only at the point at which a permanent disability can be determined that a permanent disability award can be made. Until such time, healing period benefits are awarded to the injured worker. Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Ia. Ct. App. 1984); Iowa Code section 85.34(1). Dr. McGuire is a board certified orthopedic surgeon who authored a chapter for a medical text book on the surgical and nonsurgical management of acute herniated disc and the cervical spine and chronic neck pain (ex. 11, pp. 4-5; ex. 11, deposition ex. 1, p. 2). Dr. McGuire acknowledged in his deposition that claimant's condition could have gotten worse after he last saw him on December 27, 1990, but if it did get worse it would not be caused by or due to the injury which occurred on August 22, 1990 (ex. 11, pp. 32-34, 51-52). The fact that Dr. McGuire last saw claimant on December 27, 1990, and gave his final opinion on April 10, 1991, does not discredit his opinion. He is the primary treating physician and is the only physician giving definitive evidence on the healing period. Wherefore, it is determined that claimant is entitled to 33 weeks of healing period benefits from the date of the injury, August 22, 1990, until it was determined by Dr. McGuire on April 10, 1991, that claimant had attained maximum medical improvement. Page 7 EXTENT OF PERMANENT DISABILITY It is determined that claimant has sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. In his deposition, Dr. McGuire testified that the diagnosis of spondylosis is the same as wear and tear arthritis at C5-6-7 caused by the frequent movement of the neck and the fact that the neck supports the head (ex. 11, pp. 5-6 & 9). Furthermore, the x-ray changes shown on the radiological studies were caused by aging as distinguished from trauma (ex. 11, pp. 26, 36-37). Dr. McGuire explained that his final diagnosis was a brachial plexus contusion because all of the objective diagnostic studies did not disclose any nerve root impingement and therefore, no surgery was indicated (ex. 11, pp. 44-45). He pointed out that this was very close to Dr. Chalgren's diagnosis of a traumatic neuritis of the upper part of the brachial plexus (ex. 11, p. 49). Dr. McGuire assessed a 1 percent permanent impairment based upon questionably positive slight EMG changes and a slight decrease in the range of motion of his cervical spine. Dr. McGuire placed no long-term restrictions on claimant (ex. 10, p. 4; ex. 11, pp. 25, 55-61). Dr. Hayne determined that claimant had a permanent impairment in the neighborhood of 7 percent (ex. 8, p. 4). With respect to restrictions, Dr. Hayne stated: He should avoid excessive lifting, particularly of a repetitive nature. The maximum lifting, should perhaps, not be over fifty pounds. He should avoid repetitious extension of his neck. He is probably more or less indefinitely precluded from operating heavy equipment without there being risk of aggravating the spondylosis present in the cervical spine. (exhibit 8, page 3). In his deposition given on May 22, 1992, Dr. Hayne testified that claimant was struck on the left shoulder and the injury affected his left upper extremity and the left side of his neck when he would tilt his head to the left. No other parts of his body were affected. He specifically stated that claimant never reported any low back pain or headaches (ex. 9, pp. 5-8, 27-29). There was a mild or moderate limitation of motion in claimant's neck (ex. 9, pp. 8-9). There was some weakness in the left upper extremity (ex. 9, p. 6). Otherwise, the strength in the upper and lower extremities was essentially normal (ex. 9, pp. 9, 11-12). Dr. Hayne admitted that he never concluded with medical certainty that claimant sustained a ruptured or protruded disc as a result of this injury (ex. 9, p. 14). Dr. Hayne did not believe that the injury caused claimant's spondylosis but he did feel that the trauma of the injury Page 8 aggravated claimant's preexisting condition of spondylosis. Dr. Hayne either did not understand the question or was unable to explain how the trauma of this injury physically affected the narrowed disc space (ex. 9, pp. 16-18). The doctor's best reply was "For some reason or other the pain from it has worsened with a given trauma, but just why that takes place, I'm not in a position to say." (ex. 9, p. 18). Dr. Hayne added that claimant was not a candidate for any surgical treatment and that he did not prescribe any medications as a result of his examination on October 7, 1991 (ex. 9, pp. 19-20). The doctor felt that exercises, isometric or otherwise, would aggravate rather than alleviate claimant's pain. He said the head weighs 15 pounds and the neck is always exercised by holding up the head which constitutes a constant isometric exercise of the neck (ex. 9, p. 21). Dr. Hayne explained that the injury of August 22, 1990, was not the cause of his restriction to the effect that continued operation of heavy equipment entails a risk of aggravating the spondylosis present in the cervical spine. Dr. Hayne explained, I don't feel that it's caused by the trauma to the shoulder of August 22 of '90. The condition at the time of the accident on August 22, '90, had been there for an indefinite period before that and it's on the basis of the spondylosis that's in the neck of Mr. Krenz that I have the recommendation about the heavy equipment operating mainly. (ex. 9, pp. 21-22, 28). Dr. Hayne testified that he has been a board certified neurosurgeon since 1949 (ex. 9, pp. 23-24). Dr. Hayne explained that his impairment rating in the neighborhood of 7 percent did not mean more than 7 percent or less than 7 percent, but simply 7 percent period (ex. 9, p. 32). In summary then, Dr. McGuire assessed a one percent permanent impairment of the neck based upon a questionably positive EMG and a slight decrease in his range of motion of the cervical spine (ex. 10, p. 4). Dr. McGuire explained that many physicians would give claimant a zero percent disability rating. He explained, "Sometimes when people have persistent complaints even though they really don't have much on objective examination, we're allowed to -- we're allowed to let the subjective enter into our evaluation." (ex. 11, pp. 18-19). Dr. Hayne gave a 7 percent impairment rating but did not explain the basis for his rating (ex. 9, pp. 21, 31, 32). Dr. McGuire would place no long-term restrictions on claimant. Dr. Hayne's restrictions, if they would be interpreted as such, were not caused by the trauma of August 22, 1990, according to Dr. Hayne (ex. 9, pp. 21-22). Page 9 Moreover, Dr. Hayne's restrictions are worded more as recommendations rather than restrictions. They are not worded as permanent restrictions but rather, suggestions. Furthermore, he did not say that claimant could not lift more than 50 pounds, nor did he say claimant was precluded from operating heavy equipment. Dr. Hayne simply suggested that if claimant did these things, there was a risk of aggravating his preexisting spondylosis of the cervical spine again (ex. 8, p. 3). Dr. McGuire pointed out that anybody who operates heavy equipment, lifts more than 50 pounds or plays football assumes certain risks. He further pointed out that claimant may have to suffer some aches and pains before he gets completely reconditioned (ex. 11, pp. 55-61). Dr. McGuire adhered to his opinion that long-term he would place no specific restrictions on him as it pertains to the August 1990 work incident (ex. 11, p. 57). Consequently, it is determined that claimant has no work restrictions caused by the injury of August 22, 1990. Claimant, born January 10, 1955, was 35 years old at the time of the injury and 37 years old at the time of the hearing and at the time of this decision. The fact that this injury occurred at approximately the midpoint of claimant's earnings career tends to increase claimant's industrial disability. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). Claimant completed 11 years of education and obtained a GED in 1975. He obtained no further formal education after that. The variety of his past employments and his scores on vocational tests, which show that he has above average intelligence, indicate that claimant is capable of retraining if he wants to pursue different employment. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Thus educational background and claimant's capacity for retraining are two factors which will not increase his industrial disability. Claimant is not foreclosed from his prior employment of heavy equipment operating. There is a risk factor that his preexisting spondylosis which was not caused by this accident would be aggravated again, at least until he becomes reconditioned, but it cannot be said that any doctor absolutely told claimant that he was permanently restricted from operating heavy equipment, even though claimant thinks he is not able to do so and has chosen not to do so. After his automobile accident in 1988, in which he suffered a right shoulder separation, J. Michael Donahue, M.D., recommended that claimant not return to work operating heavy equipment such as a scraper blade and permanently restricted claimant from use of the right upper extremity at or above shoulder level (ex. 1, pp. 8-9). Nevertheless, claimant testified that he did in fact return to heavy Page 10 equipment operating and performed this work until the date of this injury. Claimant has a variety of past employments which provide a number of transferable skills such as carpenter, farm hand, railroad section hand, mechanical repair of vehicles and heavy equipment, erecting pole buildings, factory work, house painting, welding, operating light and heavy machinery, and derrick hand on oil rigs. Claimant also has a reputation as an excellent cook. Claimant acknowledged that he had made no specific search for employment other then a part-time job, 18 hours per week as a janitor at the Fairmall in Fairmont, Minnesota, which pays $5 per hour for sweeping, mopping and cleaning up the mall. Claimant testified that he was forced to quit this job because of the pain. His left arm is still numb, his neck hurts when he turns it to the left and he suffers low back pain. Claimant acknowledged that he last saw a doctor for treatment when he last saw Dr. McGuire in December 1990. Specialist McGuire testified that when Dr. McGuire recommended part-time work in December 1990, that she contacted Howard, and Howard attempted to contact claimant. Howard testified that he attempted to contact claimant to return to work by leaving a message with his mother because claimant had no telephone but that claimant never called him. Claimant admitted that after he was released from jail in May 1991, he did not contact Howard nor did he try to return to work for Howard. Claimant admitted that the only job that he applied for was the janitor job at Fairmall. At the request of defendants' counsel claimant demonstrated that he had what appeared to be a nearly full range of motion with respect to extension of the left arm and internal and external rotation of the left arm, as well as left side bending of his head at the neck. Howard testified that operating a scraper is performed sitting down with your hands and arms generally below waist level operating levers. Although hydraulic levers work easier than cable levers he did not think either one required a great deal of strength. He testified that he was injured at the same time claimant was but returned to work three days later and has operated dozers and scrapers. He was required to see a doctor one time a week for approximately four to five weeks for burns. Howard testified that when he was called by Specialist McGuire about claimant working three to four hours per day, that he told McGuire to have claimant call him but claimant has not done so. Howard said he is still in business and he still needs help. Howard acknowledged that operating a scraper is a rough ride and that he and all of his employees complain about aches and pains. Howard testified that claimant was a good worker and performed his duties well. Diane McGuire, R.N., C.I.R.S., testified that she had reviewed all of the medical records and all of the depositions involved in this case (ex. 18, pp. 1-7). Page 11 Specialist McGuire testified that Howard did not have three-hour employment available for claimant in January 1991 because he had replaced claimant with a full-time employee but that he did want claimant to contact him about employment in the future (ex. 17, pp. 15, 17; ex. 18, pp. 10, 28). Specialist McGuire testified that claimant had the same access to the labor market that he had prior to this injury because Dr. McGuire said that there were no limitations (ex. 18, pp. 23, 35, 36). She said that Dr. McGuire further stated that claimant's return to activity would not harm him any further (ex. 18, p. 23). Specialist McGuire disagreed with Dr. Hayne that activity would aggravate claimant's condition and agreed with Dr. McGuire that activity would improve his condition (ex. 18, p. 24). She said that claimant agreed to Dr. McGuire as the treating physician after Dr. Hayne tried to perform surgery because claimant was afraid and that he felt that the surgery was not necessary (ex. 18, p. 25). She believed that claimant was honest in saying that he had discomfort from the contusion to his brachial plexus but the best course of action was to become active rather than to stay home and be disabled (ex. 18, pp. 25-16). Specialist McGuire further testified that claimant would not have any loss of earnings if he attempted to return to work gradually as it was recommended to him by Dr. McGuire at the end of December 1990. She repeated that Howard said that he would like claimant to contact him to visit about returning to work. To the best of her knowledge claimant never contacted Howard (ex. 18, pp. 28-29). Specialist McGuire testified that claimant had difficulty understanding the concept of chronic pain as explained to him by Dr. McGuire and could not understand why Dr. McGuire couldn't fix it and make it go away (ex. 18, p. 36). Specialist McGuire stated that claimant never complained to her about any low back problems (ex. 18, pp. 38-39). She first contacted claimant on October 15, 1990 (ex. 18, p. 43). She testified that claimant said that he did not want anyone who was knife happy cutting on him but preferred to see somebody else (ex. 18, p. 44). Even though claimant never complained of back aches, he did complain of occasional headaches (ex. 18, pp. 47-48). Specialist McGuire testified again that claimant had no restrictions and therefore, he still had access to everything that he had access to before the injury (ex. 18, p. 50). Specialist McGuire said that claimant did complain about numbness and tingling in his left hand and arm but he never did complain of dropping things and she never saw him drop anything. Carma Mitchell, M.S., C.I.R.S., C.R.C., a vocational consultant, examined claimant on January 31, 1992, at the request of claimant's attorney and wrote a five-page extensive report on March 20, 1992. Consultant Mitchell concluded that claimant had lost 52.3 percent access to the labor market and that he had suffered a 36 percent loss of earnings (ex. 19, dep. ex. 2). The difficulty with Page 12 Consultant Mitchell's evaluation is that it is based solely upon an interview with the claimant and a letter from claimant's attorney. She conceded that she did not see any of the medical records in this case, nor any of the depositions in this case (ex. 19, pp. 5, 12). The difficulty with basing her evaluation on the letter of the attorney is that his letter told Mitchell, "Dr. Hayne states in his report that Mr. Krenz is no longer to work in the area of heavy equipment operation and he has a 50 pound restriction as far as the weight he can lift." (ex. 19, dep. ex. 2). As previously stated, the comments in Dr. Hayne's final report appear to be good advice rather then absolute permanent restrictions. Dr. Hayne did not say that claimant was permanently restricted from heavy equipment operation. Nor did he place an absolute 50-pound permanent lifting restriction on claimant. Furthermore, Dr. Hayne testified in his deposition that these restrictions were not caused by the trauma to the shoulder of August 22, 1990, but rather his comments about operating heavy equipment were attributable to the spondylosis which had been present in his neck for an indefinite period of time prior to this injury (ex. 9, pp. 21-22). Specialist McGuire disagreed totally with the evaluation of Consultant Mitchell for the reason that Mitchell had not examined the depositions and medical records. Furthermore, she disagreed with the computer system of matching that Mitchell used to arrive at her conclusions because it was highly theoretical and not based upon actual conditions in the employment market in claimant's locality at the time it was made. With respect to claimant's opportunity to return to work for Howard, defendants' answers to interrogatories dated August 29, 1991, said that Howard Construction had a job right now for claimant and that he should contact Randy Howard immediately (ex. 23, p. 5). Wherefore, based upon claimant's own testimony, the evidence supplied by Specialist McGuire, the evidence supplied by Consultant Mitchell, employer's testimony, and the evidence supplied by Kathy Zeman of the vocational rehabilitation service in Fairmont, Minnesota (ex. 24), it is determined that claimant has not exhibited a strong motivation to return to work in any capacity. Since claimant has not followed the recommendations of the treating physician, Dr. McGuire, and attempted to become as active as possible through employment, it is difficult to ascertain how much, if any, industrial disability that claimant has sustained. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). An employee seeking workers' compensation would do well to make a diligent attempt to find employment. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Company, Thirty-third Page 13 Biennial Report of the Industrial Commissioner 104 (1976). Employers are responsible for the reduction in earning capacity caused by the injury; they are not responsible for a reduction in earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Wherefore, based upon (1) the fact that claimant sustained a severe traumatic injury when the lip of the blade weighing several hundred pounds struck him on the left shoulder; (2) that is was diagnosed that claimant sustained a contusion of the brachial plexus and a neuritis of the brachial plexus; (3) that claimant has no objective injury as demonstrated on plain x-rays, a CT scan, myelogram, and two MRI's; (4) that an EMG showed that claimant's C6 nerve root might be slightly irritated and a very slight loss of range of motion of the cervical spine; (5) that Dr. McGuire, the treating physician, assessed a 1 percent permanent impairment for the above reasons; (6) that Dr. Hayne assessed a 7 percent permanent impairment without stating the basis for the rating, nor did he explain the mechanism or method of how this injury aggravated claimant's spondylosis; (7) that Dr. McGuire placed no permanent long-term restrictions on claimant; (8) that Dr. Hayne made some suggested precautions, but did not phrase them as absolute permanent restrictions; (9) that Dr. Hayne said that his comments about claimant being able to return to work as a heavy equipment operator were based on the spondylosis which preceded his injury and were not based upon the trauma that occurred on August 22, 1990; (10) based on claimant's age of 35 at the time of the injury; (11) based upon claimant's eleventh grade education and GED; (12) based on claimant's past employments and the number of transferable skills available from those employments; (13) based upon claimant's ability to return to any kind of work he chooses to do in the competitive employment market; (14) based upon claimant's lack of motivation in seeking active employment since the injury; (15) and based on claimant's personal testimony of chronic left upper extremity numbness and weakness and pain when he tilts his head to the left; (16) based upon all the evidence in this case; (17) based upon all of the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); and (18) applying agency expertise, [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. Claimant did not prove that his low back pain was caused by this injury. Claimant did prove that some of his headaches may be occasioned by this injury and that fact is taken into consideration in making this award. It must also be considered that the headaches arose during the period of acute hypertension for which claimant was prescribed Page 14 medication by Dr. Zemke. Claimant complains of dropping things with his left hand and arm, but this fact does not appear in any of the reports of Dr. Hayne, Dr. McGuire, Dr. Chalgren, Dr. Cass, or Specialist McGuire. Therefore, claimant did not prove his inability to hold objects with his left hand was caused by this injury. 30 days additional healing period Claimant contends that he is entitled to an additional 30 days of healing period benefits for the reason that he was not given 30 days notice prior to the termination of healing period benefits. Defendants paid weekly benefits from August 23, 1990 through August 14, 1991, apparently without specifying the nature of the payment. When they determined that benefits would be terminated, they wrote to claimant on August 14, 1991, that weekly benefits would be terminated, but they would be sending him benefits for the next 30 days (ex. 25). Since defendants would be entitled to a credit of any overpayment of healing period benefits against any permanent partial disability benefits to be paid [Iowa Code section 85.34(4)], it is not necessary that defendants give notice of the conversion from healing period weekly benefits to permanent partial disability weekly benefits prior to the conversion date. Betz v. Long John Silvers #10, file number 730062 (App. Dec. Dec. 19, 1986). Wherefore, it is determined (1) that defendants did give claimant 30 days notice prior to the termination of benefits and (2) furthermore, it was not necessary to notify claimant at what point they converted healing period benefits to permanent partial disability benefits for the reason that they were and are in this case, entitled to a credit for the overpayment of healing period benefits [Iowa Code section 85.34(4); Iowa Code section 86.13 (unnumbered paragraph two); Auxier v. Woodward State Hospital School, 266 N.W.2d 139 (Iowa 1978). CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That the injury of August 22, 1990, was the cause of temporary disability and that claimant is entitled to 33 weeks of healing period benefits from the date of the injury on August 22, 1990 to the date when Dr. McGuire determined that claimant had attained maximum medical improvement on April 10, 1991. Iowa Code section 85.34(1). That the injury of August 22, 1990, was the cause of permanent disability and that claimant has sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant is not entitled to an additional 30 days Page 15 of healing period benefits because employer did not give a 30-day notice from the date they intended to convert healing period weekly benefits to permanent partial disability benefits. Iowa Code section 85.34(4); Iowa Code section 86.13 (unnumbered paragraph two); Auxier, 266 N.W.2d 139; Betz, file number 730062. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty-three (33) weeks of healing period benefits at the stipulated rate of one hundred ninety-nine and 15/100 dollars ($199.15) per week in the total amount of six thousand five hundred seventy-one and 95/100 dollars ($6,571.95) commencing on August 22, 1990. That defendants pay to claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of one hundred ninety-nine and 15/100 dollars ($199.15) per week in the total amount of nine thousand nine hundred fifty-seven and 50/100 dollars ($9,957.50) commencing on April 10, 1991. That defendants are entitled to a credit for fifty-five point five seven six (55.576) [sic] weeks of workers' compensation weekly benefits paid to claimant prior to hearing at the rate of one hundred ninety-nine and 15/100 dollars ($199.15) per week in the total amount of eleven thousand sixty-seven and 96/100 dollars ($11,067.96). That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to defendants pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. David Lester Attorney at Law 108 N 7th St. Estherville, Iowa 51334 Mr. Michael P. Jacobs Page 16 Attorney at Law 300 Toy National Bank Bldg. Sioux City, Iowa 51101 51401 51402.40 51802 51402 51402.40 51803 3102 3103 4000 Filed July 10, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DWIGHT KRENZ, : : Claimant, : : vs. : : File No. 981304 HOWARD CONSTRUCTION COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51401 51402.40 51802 The injury caused temporary disability and claimant was awarded healing period benefits from the date of the injury to the date the treating physician determined that he had attained maximum medical improvement. The fact that the doctor last saw claimant on December 27, 1990, and that he stated on April 10, 1991, that claimant had attained maximum medical improvement and awarded a permanent impairment rating did not discount, discredit or destroy the physicians opinion. Furthermore, it was the only medical evidence on the proper period of healing and he was the primary treating physician. 51402 51402.40 51803 Claimant awarded 10 percent industrial disability on impairment ratings of 1 percent and 7 percent, but the doctor said the 7 percent was due to preexisting spondylosis rather than this injury. Claimant is age 35, has eleven grades of school and a GED, has above average intelligence, is capable of retraining, has numerous transferable skills, is capable of performing any work, but has demonstrated no motivation to work at all after this injury. His preexisting spondylosis may limit his ability to perform certain kinds of work without pain. Page 2 3102 3103 Claimant's vocational rehabilitation specialist stated that claimant had a 52.3 percent loss of access to the labor market and a 36 percent loss of earnings. Defendants' vocational rehabilitation specialist stated the claimant had no loss of access to the labor market and had not sustained any loss of earnings. Defendants' vocational rehabilitation specialist was preferred over claimant's specialist because defendants' specialist had spent a great deal of time with claimant and had reviewed all of the medical records and depositions. By comparison, claimant's specialist had only seen claimant one time and did not examine the medical records or depositions. Claimant's specialist based her opinion on one interview with claimant and a letter from claimant's attorney. The letter from claimant's attorney did not correctly summarize and interpret Dr. Hayne's comments about restrictions. 4000 Claimant was not entitled to an additional 30 days of healing period benefits because defendants did not notify him of the date they converted weekly benefits from healing period benefits to permanent partial disability benefits. Cites. Furthermore, defendants did notify claimant 30 days before benefits were terminated.