BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : NEAL CHAMBERS, : : Claimant, : File No. 981305 : vs. : : A R B I T R A T I O N GRIFFIN PIPE PRODUCTS, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Neal Chambers against Griffin Pipe Products, his former employer, based upon an alleged injury of October 16, 1990. Chambers seeks compensation for healing period, permanent partial disability and payment of medical expenses based upon the alleged injury. The employer denies his claim. It was stipulated however, that in the event the employer is liable, the healing period runs from October 16, 1990 through April 22, 1991, and that any permanent partial disability compensation awarded is payable commencing April 23, 1991. It was stipulated that the rate of weekly compensation is $222.64. The only issue with regard to the medical expenses is the employer's liability for the condition. The employer also asserts that in the event it is held liable the permanent disability should be apportioned between that caused by this alleged injury and that which resulted from a 1986 motorcycle accident. The case was heard at Council Bluffs, Iowa, on April 6, 1993. The records consists of testimony from Neal Chambers, joint exhibits 1 through 11 and claimant's exhibit A. FINDINGS OF FACT Neal Chambers appeared at the hearing and testified. His appearance and demeanor were observed. His testimony was considered in light of the other evidence in the case. He is found to be a credible witness. Neal Chambers is a 36-year-old man who lives at Glenwood, Iowa. He graduated from high school but has no other formal training or education. After high school he was involved in the construction industry working as a carpenter or concrete worker, both of which are relatively heavy work. Chambers was hired by Griffin Pipe Products on March 5, 1984. He passed a pre-employment physical and drug screen. Chambers worked in the labor pool for only three days and was then made a material handler, a job which consisted primarily of driving a fork lift. As time passed, he also Page 2 performed other jobs in the plant. Neal Chambers had no remarkable back problems until July 13, 1986, when he was involved in a motorcycle accident. His injuries included a shattered L1 vertebra. Part of the treatment involved surgical fusion of the T12, L1 and L2 vertebrae. He was left with some atrophy of his left thigh quadricep muscles. As a result of that accident, he was off work 14 months and 10 days. It was only through an extensive physical therapy and conditioning program that he was able to return to work. Behrouz Rassekh, M.D., one of claimant's treating surgeons, initially provided him with a 75-pound lifting restriction. The employer required that Chambers be able to lift 100 pounds in order to be authorized to return to work. A work capacity evaluation was then performed which indicated that Chambers was capable of lifting at the 120-pound level (exhibit 8). The report shows that Chambers was in a very good state of physical condition at the time the test was conducted. The range of motion and velocity of back movements and maximum force which he was able to generate with his back were all less than optimum, however. Nevertheless, Dr. Rassekh released Chambers to work which would include lifting up to 100 pounds (ex. 12). Chambers was given a limited choice of jobs to which he could return. He selected the job of first helper in the melting department. His choice was based upon the belief that the job offered less hazard of further injury to his back than any of the other available jobs (ex. 5, pages 11-13). Chambers got along reasonably well in that job. In July 1990 Chambers bid into a different position in the labor pool. This job required much more extensive use of his back than the prior job. After being in the job for approximately one month, he developed back complaints which seemed to be associated with repetitive bending and lifting (ex. 5, pp. 15-18). Chambers returned to Patrick W. Bowman, M.D., the other specialist who had been involved with Dr. Rassekh in treating the motorcycle accident injuries. Dr. Bowman suspected disc disease below the fusion. He recommended prescription medication and light activity for the following couple of weeks [ex. 1(c)(1 & 2)]. Chambers did not keep a follow-up appointment which had been scheduled for late August 1990. He continued to work fearing that complaints or absence would jeopardize his employment. On October 16, 1990, after operating the skimmer to remove slag from the quadrant ladle, the claimant's back was so painful that he could hardly endure it. He told a coworker of his problem and reported the problem to his foreman. On the following day he reported the injury to personnel manager, Tom Leedy. Leedy told Chambers that as far as the company was concerned, his back problem did not happen at the plant. Claimant has not returned to work at Griffin Pipe since October 16, 1990. Chambers sought care from his family physician Robert Frysek, M.D. Physical therapy relieved some of his pain. Page 3 Chambers also returned to Dr. Rassekh. He sought to see Dr. Bowman but Dr. Bowman was unabailable. Frank Iwerson, a partner or associate of Dr. Bowman, saw Chambers. Dr. Iwerson felt that claimant's back problem was related to his work and lifting. He indicated that it had aggravated the back condition. Dr. Iwerson would limit claimant to 35 pounds of lifting. He reported that the claimant's back is not capable of heavy labor [ex. 1(c)(2)]. Dr. Bowman had reported that claimant's job at Griffin Pipe had high potential to aggravate the preexisting spinal condition and that the work is responsible for claimant's increased level of disability (ex. 1b). Dr. Rassekh reported that claimant had a preexisting condition that was aggravated by lifting and repeated bending. He assigned a 5 percent permanent impairment rating to the aggravation and indicated that the total extent of disability is higher (ex. 2c). Dr. Rassekh recommended that claimant obtain retraining for an occupation that did not require lifting over 50 pounds or repeated bending and stooping (ex. 2e). Dr. Rassekh later reported that claimant's lifting could extend up to 75 pounds on a rare occasion (ex. 2b). Dr. Frysek agreed that claimant's manual labor at Griffin Pipe was a material and substantial aggravation and contributing factor to claimant's current back problems. He recommended that claimant give up the heavy job and seek retraining (ex. 3b). Dr. Frysek felt that claimant had a 10 percent permanent impairment as a result of the October 16, 1990 injury (ex. 3a). It is found that the physicians are correct in this case. There is no material discrepancy among them in their assessments in this case. It is found that claimant's 1986 motorcycle accident caused a preexisting condition in his spine which was substantially aggravated by the repeated bending and heavy lifting that Chambers performed in his employment with Griffin Pipe Products. The bulk of the aggravation occurred after Chambers moved into the labor pool in July 1990. The physicians are correct in recommending that Chambers not resume employment at Griffin Pipe Company and that he either obtain retraining or find some other lighter work consistent with their most recent activity restrictions recommendations. Chambers made some effort at obtaining re-employment. He has worked taking surveys and as a telemarketer. He has helped his father repair and refinish furniture. All of the jobs have been temporary, part-time work with pay in the range of minimum wage. The work search conducted by Chambers has not been particularly aggressive or extensive. It apparently has taken an extended period of time for Chambers to realize and accept the fact that heavy work is out of the question for him. Chambers had been highly motivated to return to work at Griffin Pipe Products as evidenced by his remarkable recovery from the 1986 motorcycle accident and his continuing to work in 1990 Page 4 despite the onset of quite marked physical problems. It should be noted that following the 1986 injury Dr. Bowman had reported that claimant should not plan on performing heavy physical labor in the future (ex. 1d). Dr. Bowman later changed the recommendation based upon the functional capacity evaluation results. Defendant employed vocational consultant Tricia Conway to perform an assessment of claimant's employability. Her report is quite thorough and extensive. It appears to accurately reflect claimant's employment history, education and medically imposed functional limitations. It identifies his transferable skills. The findings made by Conway are generally accurate and correct. Unfortunately, no attempt was made to place Chambers in a job. Claimant's activity restrictions limit him to performing work which has exertional requirements of medium or lighter. He is presently capable of performing some medium to light jobs based upon his transferable skills. Those jobs generally pay in the range of $5.50 to $7 per hour. At the time of his 1990 injury he was earning $10 per hour. Conway concludes that Chambers has experienced a 35 to 40 percent loss of earning capacity, of which 5 to 7 percent preexisted due to loss of access to jobs as a result of the injuries in the motorcycle accident. Conway felt that if Chambers were to participate in a formalized training program the extent of his loss of earning capacity could be reduced as it would increase his access to the labor market and allow for higher rates of pay (ex. 6). On July 11, 1991, the employer sent a letter to the claimant directing him to report for work on July 15, 1991, as a general laborer on the day shift, the position he had last held with the company. It is the position which produced the aggravation of the preexisting spinal condition. The letter goes on to indicate that Dr. Rassekh had imposed a lifting restriction (ex. 11). The letter does not indicate, one way or the other, whether the employer was going to make an accommodation for the claimant or whether it was going to continue to abide by its policy of requiring the ability to lift at least 100 pounds in order to actually be allowed to work. Since there is no indication on the record that the employer was willing to make an accommodation, it is found that the employer would have continued to stand by its customary policy. Claimant did not report for work on that day. His conduct in doing so was quite reasonable under the circumstances. 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 Page 5 injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). Aggravation of a preexisting condition is one manner of sustaining a compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time Page 6 limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets, 379 N.W.2d 368. From the record in this case, it is abundantly clear that the claimant's 1986 motorcycle accident caused substantial injury to his spine and that the condition resulting from that accident became a preexisting condition for purposes of any subsequent injuries which claimant might experience. Preexisting conditions can be congenital, developmental or result from other injuries. A preexisting condition is simply any physical abnormality or weakness which makes the individual more susceptible to injury than the individual would be without that preexisting abnormality or weakness. Despite the fact that claimant was released to resume work with an authorization to lift as much as 100 pounds following the motorcycle accident, the mere fact of the spinal fusion, the weakness in one of his legs and the other abnormalities noted in the functional capacity evaluation clearly show that Neal Chambers had some impairment of physical function as a result of the quite serious injuries he sustained in the 1986 motorcycle accident. Dr. Rassekh confirms that fact that some disability had resulted from that accident in his April 22, 1991 report (ex. 2c). The nature of claimant's work activities at Griffin Pipe is not controverted by any evidence in the record. There is opinion evidence from four physicians in the record in this case indicating that the work aggravated the preexisting condition and the record is devoid of any evidence to the contrary. One could theorize that the onset of claimant's complaints in August 1990 was merely the progression of the results of the 1986 injury but there is no substantial evidence in the record to support such a theory and it is therefore rejected. It is therefore determined that claimant has proven an injury arising out of and in the course of employment in the nature of an aggravation of a preexisting condition. The date of injury is fixed at October 16, 1990. In accordance with the stipulation, claimant is entitled to recovery healing period compensation for 27 weeks running from October 16, 1990 through April 22, 1991. The employer asserts that the degree of claimant's disability should be divided or apportioned between the 1990 injury and the 1986 motorcycle accident. Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the Page 7 preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. This is a case where apportionment is a bona fide issue. The employer should not be held responsible for paying compensation for disability which was not caused by the employment. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251; 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 Page 8 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). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce, 465 N.W.2d 531; DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. 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. The fact that Chambers was able to return to work following the motorcycle accident without any reduction in his rate of earnings, other than perhaps for reduced hours due to the change of positions, does not conclusively establish that he suffered no industrial disability as a result of the motorcycle accident. Demonstrated actual earnings are strong evidence of earning capacity but they are not conclusive to the extent of excluding the consideration of the other recognized factors. In this case, claimant, quite reasonably, went to a job which provided less hours of work per week than the job he had held before the motorcycle accident occurred and it was a job which provided less stress and strain to his back. Even though the functional capacity evaluation showed him to be capable of lifting 100 pounds, that fact alone does not mean that there was no loss of physical capacity or earning capacity. As indicated by the vocational consultant, claimant did suffer a loss of access to some jobs as a result of the motorcycle accident. That loss of access Page 9 equates to some degree of industrial disability. The injury now being litigated did not occur until claimant took himself off of the lighter job and placed himself into the more physically demanding labor pool position. His action in doing so was quite improvident. It is recognized that claimant also had worked as a second shift casting machine operator and second shift casting utility person before moving to the labor pool. He apparently moved to the labor pool in order to change to the first shift so that he would have more time with his family in an apparent attempt to reconcile some domestic discord. The attempt unfortunately proved to be unsuccessful. Not only did his marriage fail to survive, but he also sustained the injury which is now under litigation. Apportionment can be conducted in two different ways. The method used by this agency in Bearce, 465 N.W.2d 531, was to make a finding of the extent of the overall disability and then deduct the portion of the preexisting disability. The defect in that method of analysis is that an individual's earning capacity often changes over the individual's lifetime due to a number of factors, some of which can increase the earning capacity while others may tend to decrease it. This method requires a finding of the current degree of industrial disability as well as a finding of the degree of industrial disability which preexisted the most recent injury. Since assessment of industrial disability is not simply a matter of performing a mathematical calculation, illogical results can occur when the pure mathematical function of subtracting the preexisting degree of disability from the current degree of disability. For example, in Bearce, the commissioner had found that Bearce had a total of 35 percent industrial disability and that 25 percent was related to the previous injury from which he was able to return to work yet only 10 percent was related to the most recent injury which caused Bearce to lose his livelihood. This method is based upon the questionable presumption that individuals somehow start their working life at 100 percent of full capacity and thereafter lose earning capacity through injuries. It does not take into account the fact that earning capacity can increase through things such as increasing education, increasing technical skills, increasing seniority, maturity, and other factors. The method used by the commissioner deducts for things which tend to reduce earning capacity, but makes no additions for things which tend to increase earning capacity. A second method of performing apportionment is to consider the earning capacity of the individual as being 100 percent immediately prior to the time that the injury under consideration occurs. Since differing individuals have differing earning capacities and earning capacities can be affected either positively or negatively by a wide variety of events, this method takes into account everything that has existed prior to the time of the injury under Page 10 consideration. The loss of earning capacity or industrial disability which is determined is then based upon the earning capacity that existed immediately prior to the time the most recent injury occurred. This method of apportionment avoids some of the pitfalls that are encountered when attempting to determine the extent of disability caused by a previous or remote injury and then subtracting the extent of disability caused by each previous injury form the current degree of disability. It avoids getting bogged down in mathematics which can often produce illogical results. It is this second method of determining disability proximately caused by this injury and apportionment that is used in this decision. Neal Chambers clearly had impairment of physical capacity as a result of the motorcycle accident. He clearly had lost the ability to perform heavy physical labor since it is that activity which caused this injury. While the functional capacity evaluation might have shown him to be capable of lifting 100 pounds, it was inaccurate if it was construed as a predictor that he could safely lift 100 pounds on a continuing, repetitive basis without sustaining further injury. Actual earnings are a quite reliable indicator of earning capacity since most individuals attempt to maximize their earnings as did Chambers when he bid into higher paying jobs. His earnings at the time of injury are not, however, an accurate indicator of his earning capacity prior to the injury since he was not able to perform those activities without sustaining injury to himself. A simple comparison of pre-injury actual earnings with the anticipated post-injury earnings were he to find employment consistent to that recommended by the vocational consultant is somewhat indicative of the extent of lost earning capacity. Clearly, Neal Chambers had some preexisting physical disability as a result of the motorcycle injury. Despite the severity of those injuries and the residual physical disability, his physical capacities were probably still well in excess of the physical capacities of many individuals who have not sustained any injury whatsoever. The injury in this case has made Chambers unable to perform physical activity at the level that he was able to perform following the motorcycle accident. The impact on Chambers has been very substantial. In making this statement it is recognized that he has not made a particularly extensive search to obtain re-employment. This case is determined based upon the evidence from Patricia Conway being correct. The employer is not entitled to benefit from Conway's statement that the degree of industrial disability could be reduced by formalized training since defendant is not providing that training. Further, it is unknown as to whether or not this claimant has the intellectual capacity to complete further formal training. A case is to be decided based upon the facts which are known or readily predictable. It is not proper to Page 11 speculate into what the future might hold. Meier v. John Kirby, file number 826937 (App. Dec. 1989). The measure of the employer's liability is with the employee being as the employer leaves him. It is not as the employee might become at some unspecified time in the future if events which benefit the claimant occur during the intervening time. Having the intellectual ability to complete higher formal education or training is of little impact if financial resources are not available to provide that training. Further, even if the training is obtained, the level of earning capacity which might then exist would not necessarily be higher than the level of earning capacity which existed prior to the injury which is the subject of this case. The employer had the ability to place claimant into a job which he was capable of performing, such as those that he held prior to moving into the labor pool, but it chose to not allow him the option of those jobs. He was directed to return to the labor pool. When an employer chooses to not return an injured employee to work and in essence removes the employee from its work force, that fact alone is strong evidence of a high degree of disability. Sunbeam Corp. v. Bates, 609 S.W.2d 102 (Arkansas Appellate 1980); Army and Air Force Exchange Service v. Neuman, 278 F.Sup. p. 65 (W.D.La 1967); 2 Larson 57.61. This rule exists because an employer is presumed to know the actual requirements of employees in industry. An employer's determination that an employee is not economically feasible to have as part of its work force is afforded a high degree of deference. If the employer in whose employ the injury occurred is not motivated to provide employment to a person with a disability then there is little reason to expect that some other employer would have a higher level of motivation for employing the partially disabled person. When all the pertinent factors of industrial disability are considered, together with the fact of the preexisting disability, it is determined that Neal Chambers has sustained a 35 percent permanent partial disability as a result of the October 16, 1990 cumulative trauma injury. This entitles him to recover 175 weeks of permanent partial disability compensation. The only disputed issue regarding the medical expenses shown in claimant's exhibit A is that of liability. The bills have been examined. The treatments provided were consistent with the injury sustained and the dates contained in the other medical reports. It is therefore determined that all the expenses contained in claimant's exhibit A were incurred in obtaining medical treatment for the injury in this case and that the requisite causal connection exists between the injury and the expenses. The employer is therefore responsible for payment of claimant's expenses as set forth in exhibit A. ORDER IT IS THEREFORE ORDERED that the employer pay Neal Chambers twenty-seven (27) weeks of compensation for healing Page 12 period at the stipulated rate of two hundred seventy-two and 64/100 dollars ($272.64) payable commencing October 16, 1990. It is further ordered that the employer pay Neal Chambers one hundred seventy-five (175) weeks of compensation for permanent partial disability at the stipulated rate of two hundred seventy-two and 64/100 dollars ($272.64) payable commencing April 23, 1991. It is further ordered that all accrued weekly compensation benefits which have not been paid to the claimant shall be paid to him in a lump sum together with interest pursuant to section 85.30 computed from the date each payment came due until the date of actual payment. It is further ordered that the employer pay the following medical expenses: Robert K. Fryzek - $88; Glenwood Physical Therapy - $289.60; Behrouz Rassekh - $155. Total medical due $532.60. It is further ordered that the costs of this action are assessed against the employer pursuant to rule 343 IAC 4.33. It is further ordered that the employer file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Sheldon Gallner Attorney at Law 803 3rd Ave PO Box 1588 Council Bluffs, Iowa 51502 Mr. W. Curtis Hewett Attorney at Law 35 Main Place PO Box 249 Council Bluffs, Iowa 51502 1806 1807 2206 2209 Filed June 11, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ NEAL CHAMBERS, Claimant, File No. 981305 vs. A R B I T R A T I O N GRIFFIN PIPE PRODUCTS, D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 1806 1807 2206 2209 Claimant with a three-level fusion from a nonwork-related injury sustained a cumulative trauma injury in the form of an aggravation of the preexisting condition and was awarded 35 percent permanent partial disability. Two methods of performing apportionment were discussed and the preferred method was held to be that of basing the percentage of industrial disability as a loss from the level of earning capacity that existed immediately prior to the injury under litigation. The method of subtracting from a 100 percent perfect individual for different lifetime events was rejected. There was a discussion regarding the role of actual earnings when determining changes in earning capacity. The decision explains why refusal to rehire commonly results in a significantly higher award than what would be the result if the employment relationship had been maintained. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DENISE THOMAS, : : : File No. 981309 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N K-MART CORPORATION, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Denise Thomas, claimant, against K-Mart Corporation, self-insured employer, hereinafter referred to as K-Mart, for workers' compensation benefits as a result of an alleged injury on January 20, 1989. On July 20, 1992, a hearing was held on claimant's petition and the matter was considered fully sub mitted at the close of this hearing. The oral testimony and written exhibits were received only from claimant during the hearing and are set forth in the hearing transcript. Due to prior imposition of sanc tions by this agency, defendant was not allowed to partici pate or offer evidence at hearing and did not appear for hearing. ISSUES The claimant submitted the following issues for deter mination in this proceeding: I. Whether an employer-employee relationship existed between claimant and the alleged defendant employer at the time of the alleged injury; II. Whether claimant received an injury arising out of and in the course of employment; III. The extent of claimant's entitlement to disabil ity benefits; IV. The extent of claimant's entitlement to medical benefits; and, V. The extent of claimant's entitlement to penalty benefits. FINDINGS OF FACT Having heard the testimony and considered all of the Page 2 evidence, the deputy industrial commissioner finds as follows: From her demeanor while testifying, claimant is found credible. Claimant, age 33, was employed by K-Mart continuously from 1978 until the work injury herein on January 20, 1989. Initially, she was assigned to store clerk duties in various departments or to check out. For the last four years she was working in a storeroom as a receiving clerk assigned to unloading semi-trucks, checking-in merchandise and pricing merchandise. The work was at times heavy, especially in the handling of large television sets and microwave ovens. Claimant's average gross weekly earnings in the 13 weeks before the injury of January 20, 1989 was $260.10, according to exhibit 12. On January 20, 1989, claimant was single and entitled to 2 exemptions on her tax returns. On or about January 20, 1989, claimant injured her right wrist while unloading a truck. This injury arose out of and in the course of her employment. The acute pain became so severe that she was compelled to leave work on the afternoon of January 20, 1989. She has not returned to work in any capacity since that time. Claimant's account of the injury was uncontroverted and consistent with histories she provided to all treating physicians in this case. Since January 20, 1989, claimant has had continuing pain complaints in her right wrist and has received almost continuous treatment for those complaints. As a result she has not been able to return to her receiving clerk position at K-Mart. During her treatment she was released to one-arm duty only and claimant credibly testified that her job required the use of both of her hands. Claimant was first treated by Samir Wahby, M.D., but was referred in March 1990 to an orthopaedic surgeon, Douglas Regan, M.D. Dr. Regan has treated claimant since that time. This treatment, to date, has involved two surgeries. The first occurred on April 11, 1990 and involved a cubital tunnel release in the elbow, arthroscopy of the wrist and other procedures. Following a long period of physical therapy and continuing complaints of wrist pain, she underwent a second surgery on October 9, 1991 involving a fusion of the wrist and related procedures. Claimant today still has not reached maximum healing according to Dr. Regan who indicates that he will not be able to rate claimant's permanent impairment for another 6-12 weeks. Two second opinions were obtained from T. DeBartolo, M.D., during this treatment period. Dr. DeBartolo essentially concurred with the treatment of Dr. Regan. It is found that claimant has been absent from work to receive treatment continuously since January 20, 1989 as a result of the work injury of January 20, 1989. Although Dr. Regan has not issued a specific causal connection opinion linking his treatment to the events of January 20, 1989, it is clear from his notes that he, as the authorized physi cian, sent regular reports to the defendant and did not deny the casual connection of this treatment to the work injury. Page 3 Claimant's uncontroverted testimony established that she had no wrist or arm injuries or complaints prior to January 20, 1989 and has had continuous complaints since. Also, claimant has underwent two pregnancies since January 20, 1989 and each one has delayed surgical treat ment. However, despite these pregnancies, the work injury remained a substantial contributing factor in preventing a return to work at all times since January 20, 1989. Claimant testified that she was notified to return to work, part-time, in January 1991. Claimant stated that she did not feel that she could perform the work and did not report to work in January 1991. Subsequently, claimant's weekly benefits were terminated by defendant. It cannot be determined from the record if the work offered was suitable for her disability or approved by Dr. Regan. The only release to work in the record was the initial release to one-handed work in 1989 and no such work was offered at the time by K-Mart. If K-Mart was offering one-handed work or other suitable work in January 1991, such is not contained in the record. Claimant is not obligated to accept non-suitable work. Given claimant's testimony verifying the mileage claim attached to the prehearing report, it is found that claimant has incurred a total of 6,550 miles, as of the date of hear ing, in traveling to receive authorized medical treatment of the work injury of January 20, 1989. CONCLUSIONS OF LAW I. Claimant must establish that an employee-employer relationship existed between herself and K-Mart on the date of injury. Only employees are entitled to compensation for work-related injuries under chapter 85 of the Iowa Code. The definition of employee under chapters 85 and 85A of the Iowa Code is the same. I.C.A. 85A.3. Iowa Code section 85.61(2) defines employee as "a person who has entered into the employment of, or works under contract of service, express or implied..." In this case, it was found that such an employment contract existed on the date of injury. II. Claimant has the burden of proving by a preponder ance of the evidence that claimant received an injury aris ing 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 circum stances 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 per sonal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. In the case sub judice, the evidence of an injury was uncontroverted. It was found that the conditions being treated were causally connected to the injury. The opinion Page 4 of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). If the available expert testimony is insufficient alone to sup port a finding of causal connection, such testimony may be coupled with non-expert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966) III. Claimant is entitled to weekly benefits for temporary total disability or healing period weekly benefits from the date of disability until claimant returns to work; is medically capable of returning to substantially similar work to the work she was performing at the time of injury; or, if there is permanency, until it is indicated that sig nificant improvement from the injury is not anticipated, whichever occurs first. Iowa Code sections 85.33 & 34. In the case sub judice, there were two conceptual prob lems. First, claimant became pregnant twice during her recovery from the work injury. In each case, aggressive treatment was suspended by Dr. Regan pending completion of the pregnancy. However, it was found that the work injury has always been a substantial factor in preventing claimant from returning to work. The intervening pregnancy did not change this. Had there been no work injury, claimant would have been able to work during her pregnancy. There is no statutory or case law authority to suspend benefits when treatment is delayed due to another medical condition of a claimant. Second, Iowa Code section 85.33(3), suspends temporary weekly benefits if a claimant refuses to accept suitable work. However, it could not be found from the record that suitable work was offered in January 1991. Therefore, as it was found that claimant has not reached maximum healing and remains off work as a result of the work injury, temporary total disability benefits will be awarded from the date of injury until she is capable of returning to work or reaches maximum healing. With reference to weekly rate, it was found that claimant's gross weekly earnings was $260.10, she was single and entitled to two exemptions on their tax returns at the time of injury. Therefore, according to the Industrial Commissioner's published rate booklet for injuries occurring in FY 89, the rate of compensation is $166.39 per week. IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. In the case at bar, the only issue involved medical mileage. This is reimbursed at the rate of $.21 per mile according to 343 IAC 8.1. Compensation to claimant will be awarded accordingly. V. Claimant seeks penalty benefits under Iowa Code section 86.13(4) for an alleged unreasonable stoppage of benefits in March 1991 following the refusal to return to Page 5 work in January 1991. As was the case in determining whether claimant's benefits should be suspended for this refusal under Iowa code section 85.33(3), it is crucial to assess whether or not the offer was for a return to suitable work. If it were, then the stoppage of benefits without further notice would be reasonable. In this case, the record is silent on what work was offered or if such work was suitable to claimant's disability. In order to prevail in a claim for unreasonable denial or bad faith, claimant had to show in this case that the offer in January 1991 was to unsuitable work and defendant knew or should have known this. Claimant failed to establish this factual showing. The lack of a record may have helped claimant on the suspen sion issue but this lack of evidence also prevents a finding of unreasonableness upon which to base an award of penalty benefits. Therefore, the claim for penalty benefits is denied. ORDER 1. Defendant shall pay to claimant temporary total disability or healing period benefits at a rate of one hundred sixty-six and 39/l00 dollars ($166.39) per week from January 20, 1989 until termination of such benefits is appropriate by Iowa Code sections 85.33(1) or 85.34(1). 2. Defendant shall pay to claimant the sum of one thousand three hundred seventy-five and 50/l00 dollars ($1,375.50) as reimbursement for medical mileage expenses. 3. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid. 4. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendant shall pay the costs of this action pur suant to rule 343 IAC 4.33, as set forth in the prehearing report, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. 7. This claim shall be returned to the hearing admin istrator to schedule a hearing as soon as practicable after November 1, 1992 on the issue of the extent of claimant's entitlement to permanent disability benefits. Signed and filed this ____ day of September, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Jerry L. Schnurr, III Attorney at Law 801 Carver Building P O Box 1680 Fort Dodge, Iowa 50501 Mr. Joel T. S. Greer Attorney at Law 112 W Church Street Marshalltown, Iowa 50158 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENISE THOMAS, File No. 981309 Claimant, A R B I T R A T I O N vs. D E C I S I O N K-MART CORPORATION, Employer, Self-Insured, Defendant. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Denise Thomas, claimant, against K-Mart, a self-insured defendant employer, for workers' compensation benefits as a result of an alleged injury on January 20, 1989. On November 3, 1994, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. On September 21, 1992, the undersigned issued a prior arbitration decision finding that claimant suffered a compensable work injury to her right wrist on January 20, 1989 but that she had not as yet reached maximum healing from this injury. Medical benefits and the payment of healing period benefits were ordered at that time for an indefinite period of time and that a hearing on claimant's full entitlement to weekly and medical benefits would be held at a later date, if needed, upon request of the parties. This decision was not appealed and became a final agency decision. The hearing on November 3, 1994 was then conducted pursuant to this prior decision. It should be noted that defendant was not allowed to participate or submit evidence in the previous hearing due to prior sanctions imposed by this agency for discovery rule violations. However, the undersigned allowed defendant to participate in and present evidence at the November 3, 1994 hearing. This is a new proceeding and claimant verified that defendant complied with agency rules and cooperated with claimant in the preparation for the November 3, 1994 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. Claimant has been paid her entitlement to healing period benefits which extend from January 20, 1989 through March 31, 1994. 2. If the injury is found to have caused permanent disability, the type of disability is a scheduled member disability to the upper extremity. 3. Defendant agreed that claimant is entitled to and will be paid the requested medical benefits set forth in the hearing report. ISSUES The parties submitted the following issues for determination at the November 3, 1994 hearing: I. The extent of claimant's entitlement to permanent disability benefits; and, II. The extent of claimant's entitlement to penalty benefits, if any. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant's credibility was not challenged by defendant. As a result of wrist and arm pain from the work injury, claimant has underwent two surgeries. In April 1990, she had a cubital tunnel release in the elbow and repair of the scapholunate ligament. In October 1991 she underwent a mid- carpal row fusion and a radial styloidectomy. Claimant's primary treating orthopedic surgeon has been Douglas Reagan, M.D. According to Dr. Reagan, claimant has suffered a 22 percent permanent partial impairment to the upper extremity from the injury. Another physician, Dave Archer, M.D., a family practice physician, rates claimant as suffering from a 35 percent permanent partial impairment to the upper extremity. Both physicians state they used the AMA Guides to evaluate this disability. Although his report is more detailed as to his findings as to permanency and the doctor spent over a hour in evaluating claimant's condition, Dr. Archer's views cannot be given the same weight as the treating orthopedic surgeon who is more clinically familiar with claimant's condition and who possesses a specialty in the care and treatment of orthopedic problems. However, neither physician appears to have rated claimant's actual loss of use. As was apparent at hearing, claimant must wear her wrist brace for most of the day and many times at night to prevent pain. This brace totally immobilizes claimant's wrist. Consequently, her actual loss of use is her wearing this brace, not her range of motion without a brace. Therefore, given this agency's expertise and experience in these matters, an additional eight percent loss of use is found over and above the rating of Dr. Reagan. Consequently, it is found that the injury of January 20, 1989 was a cause of a 30 percent permanent partial disability to the right arm. Claimant's testimony and the written evidence shows that there were two significant interruptions in the payment of weekly benefits pursuant to the September 21, 1992 final decision. Claimant was not paid until October 18, 1993 for the benefit period from July 10, 1993 through October 15, 1993. She was likewise not paid until September 2, 1994 for the benefit period extending from April 2, 1994 through August 26, 1994. The total amount of payments delayed was over $4,000. No excuse or prior notice was given for these delays. No reason for the delays were provided at hearing by defendant. This is unreasonable and warrants the maximum penalty imposed by law. CONCLUSIONS OF LAW I. A permanent partial disability is either scheduled or unscheduled. A scheduled disability is evaluated by the functional method. The industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (1983). 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 30 percent permanent loss of use of her right arm. Based on such a finding, claimant is entitled to 75 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(m) which is 30 percent of 250 weeks, the maximum allowable number of weeks of disability for an injury to the arm in that subsection. These benefits will be ordered paid from the end of the stipulated healing period. The finding of impairment in this case went beyond the rating of a physician using the AMA Guides. In making assessment of the loss of use of a scheduled member, the evaluation is not limited to the use of a standardized guide. A claimant's testimony and demonstrated difficulties may be considered in determining the actual loss of use so long as loss of earning capacity is not considered. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). The actual loss of use which is to be evaluated is the loss of use of the member for the purposes for which the member is customarily used in daily living, including activities of employment. Pain which limits use, loss of grip strength, fatigability, activity restrictions and other pertinent factors may all be considered when determining scheduled disability. Moss v. United Parcel Service, File No. 881576 (Appeal Decision, September 26, 1994); Greenlee v. Cedar Falls Comm. Schools, File No. 934910 (Appeal Decision, December 27, 1993); Westcott-Riepma v. K-Products, Inc., File No. 1011173 (Arbitration Decision, July 19, 1994); Bieghler v. Seneca Corp., File No. 979887 (Arbitration Decision, February 8, 1994); Ruyland v. Rose's Wood Products, File No. 937842 (Arbitration Decision, February 13, 1994); Smith v. Winnebago Industries, File No. 824666 (Arbitration Decision, April 2, 1991). II. Claimant seeks additional weekly benefits under Iowa Code section 86.13, unnumbered last paragraph. That provision states that if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award extra weekly benefits in an amount not to exceed 50 percent of the amount of benefits that were unreasonably delayed or denied. Defendants may deny or delay the payment of benefits only when the claim is fairly debatable. Seydel v. U of I Physical Plant, (Appeal Decision, November 1, 1889). When the claim is "fairly debatable," the insurer is entitled to debate it, whether the debate concerns a matter of fact or law." Making claimant wait for his money regardless of medical evidence is unreasonable conduct entitling claimant to penalty benefits. Hartl v. Quaker Oats Company, File No. 931120, (Appeal Decision, July 22, 1993). Turning to the case sub judice, no explanation or prior notice was given to claimant during two major interruptions in her weekly benefits. No explanation was offered at hearing. The maximum penalty will be imposed which will be the sum of $2,000 which is a reasonable penalty given the conduct. ORDER 1. Defendant shall pay to claimant seventy-five (75) weeks of permanent partial disability benefits at a rate of one hundred sixty-six and 39/l00 dollars ($166.39) per week from April 1, 1994. 2. Defendant shall pay to claimant a penalty in the amount of two thousand dollars ($2,000). 3. Defendant shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendant shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 5. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendant 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. 7. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jerry L. Schnurr, III Attorney at Law 409 Snell Bldg PO Box 952 Fort Dodge IA 50501 Mr. Joel T. S. Greer Attorney at Law 112 W Church St Marshalltown IA 50158 5-1803 Filed September 21, 1992 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENISE THOMAS, File No. 981309 Claimant, A R B I T R A T I O N vs. D E C I S I O N K-MART CORPORATION, Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. 1803; 4000 Filed November 28, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENISE THOMAS, File No. 981309 Claimant, A R B I T R A T I O N vs. D E C I S I O N K-MART CORPORATION, Employer, Self-Insured, Defendant. ___________________________________________________________ 1803 - Extent of Scheduled Member Disability Although the lower scheduled member rating by the treating physician was given greater weight over a higher rating by a one-time evaluator, an additional 8 percent permanent disability found over this rating as claimant's actual loss of use was more than the physician's ratings under the AMA Guides. Claimant was required to use her wrist brace most of time during the day and night to prevent pain and the brace totally immobilized her wrist function. This real life loss of use was not included in the treating physician's rating. 4000 - Penalty A $2,000 penalty was imposed for two major interruptions in the payment of weekly benefits without explanation to claimant or this agency. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DONNIE SHAFFER, : : Claimant, : : vs. : File Nos. 981314; : 931131; 910596 EXIDE CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Donnie D. Shaffer, claimant, against Exide Corporation, employer, hereinafter referred to as Exide, and Wausau Insurance Companies, insurance carrier, defendants, for workers' com pensation benefits as a result of an alleged injury on September 19, 1988. On June 22, 1992, a hearing was held on claimant's petition and the matter was considered fully sub mitted at the close of this hearing. In the prehearing report submitted at hearing, the parties agreed to a new work injury date of November 13, 1990 for file number 981314. Also, at the request of and with the expressed consent of all parties, the undersigned on June 22, 1992, agreed to hear and decide the only remaining dispute among the parties with reference to two pending claims, file numbers 910596 and 931131, which had not been scheduled for hearing. Apparently the parties entered into a settlement agreement in February 1991 which was approved by this agency in which the parties agreed to a work injury date of September 19, 1988 for both claims and to payment of weekly benefits for healing period and permanent partial disability (PPD). The payment of PPD was based upon a 5 percent loss to each hand but the issue was left open for further benefits pending a final rating by the treating physician. It was further agreed that claimant was paid his entitlement to weekly ben efits through December 19, 1990. According to the parties, now that the only available remaining issue to be decided in these files is the extent of claimant's entitlement to per manent disability benefits for the bilateral hand or arm injuries. The parties have submitted two prehearing reports for all of the files discussed above delineating the contested issues and stipulations. At hearing, these reports were Page 2 approved and accepted as a part of the record of this case. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing reports, the parties have stipulated to the following matters: 1. On September 19, 1988 and November 13, 1990, claimant received injuries arising out of and in the course of employment with Exide. 2. Claimant is only seeking temporary total or healing period benefits in this proceeding from November 20, 1990 through January 8, 1992 as a result of the November 13, 1990 injury and defendants agree that claimant was not working during this time. 3. With reference to the injury of September 19, 1988, the type of permanent disability is a scheduled member dis ability to either the hand or arm. 4. With reference to the injury of November 13, 1990, if permanent partial disability benefits are awarded, they shall begin as of April 30, 1991. 5. At the time of injury of September 19, 1988, claimant's gross rate of weekly compensation was $663.30; he was single; and he was entitled to one exemption. Therefore, claimant's weekly rate of compensation is $363.54 according to the Industrial Commissioner's published rate booklet for this injury. 6. At the time of injury of November 13, 1990, claimant's gross rate of weekly compensation was disputed; he was married; and he was entitled to 3 exemptions. 7. Medical benefits are not in dispute in any of these litigated claims. ISSUES The only issues submitted by the parties is the extent of claimant's entitlement to disability benefits and the weekly rate for the November 13, 1990 injury. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant has worked for Exide since May 1986 and this employment continues at the present time. At the time of the work injuries, claimant was working in the dyna cast department assembling batteries. This work involved exten sive use of claimant's hands and arms in the repetitive gripping and lifting, frequently heavy, of battery compo nents. After approximately one year following his last sur gical procedure on his right shoulder, claimant returned to work at Exide. However, claimant did not return to dyna Page 3 cast but to a different department called TPT. Work in this department met his physician imposed physical activity restrictions against repetitive use of his hands and arms. Claimant continues in this employment today. The work injury of September 19, 1988 consists of bilateral carpal tunnel syndrome; three trigger fingers in the right hand; two trigger fingers on the left; and, an ulnar tunnel syndrome on the left. Claimant experienced chronic pain, numbness and tingling in the fingers, hands and arms beginning in 1988. These symptoms, although less ened by treatment, continues today. Claimant underwent three surgeries for these conditions performed by William W. Eversmann, Jr., M.D., a specialist in hand surgery, involv ing release of the tunnel syndromes and trigger fingers. It is found that claimant suffers from a 5 percent per manent partial impairment on the left and a 10 percent per manent partial impairment on the right as a result of the multiple conditions from the injury of September 19, 1988 which combines and converts to a body as a whole rating of 9 percent. It is also found that this impairment is causally connected to claimant's repetitive work at Exide prior to September 19, 1988. These findings are based upon the views and ratings of the primary treating physician and surgeon, Dr. Eversmann. The opinions offered by defendants from a one time evaluator were not convincing. Dr. Eversmann had far more clinical involvement with claimant. He also had actually observed the condition surgically. Finally, with reference to the injury of September 19, 1988, claimant has not shown a total or 100 percent loss of earning capacity from the two injuries sustained on that date. The injury of November 13, 1990 involves another overuse syndrome problem resulting in a multi-flap tear of the glenoid labrum in the right shoulder as well as arthritic changes within the shoulder joint all due to repetitive or cumulative traumas while working in the dyna cast department at Exide. This was the diagnosis and causal scenario opined by Keith W. Riggins, M.D., the treating orthopedic physician. His treatment of claimant began in November 1990 upon complaints of chronic shoulder and arm pain. Claimant underwent a fourth surgery, this time on the shoulder in January 1991. Despite extensive treatment, including this surgery, claimant still has difficulty using his arms and hands today due to these shoulder conditions. Dr. Riggins opines that this condition is permanent and results in a 7 percent impairment of the arm under the AMA guides. He did not provide a body as a whole rating. He also opined that claimant reached maximum benefits from treatment at the time of his examination of claimant on February 28, 1991. Therefore, it is found that maximum healing was achieved at that time. Despite the lack of a body as a whole rating from Dr. Riggins, the extent of impairment is a legal not a medical question. It is found that the work injury of November 13, 1990 is a cause of a significant permanent partial impair ment extending into the body as a whole. The exact percent age is unimportant in body as a whole or industrial disabil Page 4 ity cases. What is important is that Dr. Riggins recommends against employment requiring repetitive use of claimant's hands and arms and no overhead use of arms as such work would result in a recurrence of symptoms. As a consequence, claimant was unable to return to Exide in the dyna cast department. However, in January 1992, he returned to Exide in the TPT department which has much less repetitive work and Dr. Riggins has approved of the work. Claimant's medical condition before the work injury of November 13, 1990 was certainly not excellent and he had considerable problems with his bilateral hand and finger conditions. However, these prior injuries and resulting disabilities were not independent of his employment at Exide. Consequently, apportionment of disability cannot be attempted. However, in any event it should be noted that the change of jobs at Exide from dyna cast to TPT did not occur until after the November 13, 1990 injury. The change of jobs from dyna cast to TPT has resulted in approximately a 22.5 percent loss of actual earnings according to figures complied by an accountant retained by claimant. Claimant's average wage in 1990 was $15.82 per hour but is only $12.26 per hour in his current job. Although both jobs have a similar base rate and both are incentive pay jobs, there is more "down time" resulting in lower average pay in TPT. Claimant usually worked a 40 hour week. It is found by multiplying the average hourly rate by 40 that claimant's customary weekly earnings at the time of the November 13, 1990 injury was $632.80. It should be noted that the accountant's calculations arriving at a present value for claimant's projected future loss of earnings was not utilized in arriving at the indus trial disability findings herein. The Exide industrial relations manager testified that claimant's average pay in 1990 was $15.12 because the accountant's figures included vacation pay. He also testi fied that claimant's current pay is somewhat higher, $12.52. These figures were rejected as a basis for the findings herein as the manager failed to fully explain how he arrived at his figures. Vacation pay may or may not be properly included depending upon the manner of calculation. No explanation was offered for the difference in current pay. Claimant is 32 years of age and has a high school edu cation. Claimant's past employment consists of gas station attendant, construction work, packaging and weighing crack ers at a biscuit plant and supply handler. His ability to perform these jobs is very extremely restricted by his cur rent disabilities. Before he was rehired by Exide, claimant made an attempt to find suitable work in the area of his residence for almost a year but failed. However, vocational rehabilitation and seeking alterna tive suitable work is not necessary at this time as Exide and the local UAW union has chosen to accommodate for Page 5 claimant's disability; a medical placement was allowed; and, a severe loss of earning capacity has been averted, for now. A future loss of his job at Exide would certainly be a sig nificant change from his current condition requiring this agency to reexamine this matter. Despite his current employment, claimant still has a significant disability which must be compensated. From examination of all of the factors of industrial disability, it is found that the work injury of November 13, 1990 was a cause of a 25 percent loss of earning capacity. CONCLUSIONS OF LAW I. The September 19, 1988 injury: It was stipulated that claimant suffered permanent impairment to two hands or upper extremities from a single injury date. Consequently, the extent of disability must be measured pursuant to Iowa Code section 85.34(2)(s). Measurement of disability under this subsection is peculiar. Under this Code section, this agency must first determine the extent of industrial dis ability or loss of earning capacity caused by the two simul taneous injuries. If the injury caused a loss of earning capacity that is less that total or 100%, then the extent of the permanent disability is measured only functionally as a percentage of loss of use for body member affected which is then translated into a percentage of the body as a whole and combined together into one body as a whole value. This was done by Dr. Eversmann using the AMA guides. If the indus trial disability is total or there is a total loss of earn ing capacity, then claimant is entitled to permanent total disability benefits under Iowa Code section 85.34(3). See Simbro v. DeLong's Sportswear 332 N.W.2d 886 (Iowa 1983); Burgett v. Man An So Corp., 3 Iowa Indus. Comm'r Rpt 38 (Appeal Decision 1982). In the case sub judice, it was found that claimant had not suffered a total loss of earning capacity, consequently his entitlement to permanent disability benefits is measured only functionally. Based upon a finding of a combined 9 percent impairment to the body as a whole as a result of permanent injury to both hands and arms, claimant is enti tled as a matter of law to 45 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(s) which is 9 percent of the 500 weeks allowable for a simulta neous injury to two extremities in that subsection. Claimant has been paid for a 5 percent loss of both hands or a total of 19 weeks through December 19, 1990 according to the settlement agreement. Therefore, defendants will be ordered to pay the difference, 26 weeks, from December 20, 1990. II. The November 13, 1990 injury: As the claimant has shown that this work injury was a cause of permanent physi cal impairment or limitation upon activity extending into the shoulder and the body as a whole, the degree of perma nent disability was measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not mea Page 6 sured 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 Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, February 28, 1985). Although it was found that due to prior work-related conditions, claimant had prior physical impairment to his extremities, apportionment is not possible in measuring dis ability resulting from the November 13, 1990 injury. Apportionment of disability between a preexisting condition and an injury is proper only in those situations where a prior injury or illness unrelated to employment indepen dently produces some ascertainable portion of the ultimate disability. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Also, prior existing impairment does not mandate a finding of loss of earning capacity when there has been no prior lost earnings or employment. See Bearce v. FMC Corp, 465 N.W.2d 531 (Iowa 1991) In the case sub judice, it was found that claimant suf fered a 25 percent loss of his earning capacity as a result of the work injury of November 13, 1990. Such a finding entitles claimant to 125 weeks of permanent partial disabil ity 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. 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 capa ble 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. The only dispute involved claimant's absence from work from November 20, 1990 through January 8, 1992. It was found that claimant reached maximum healing on February 28, 1991. Benefits will be awarded accordingly. Page 7 With reference to rate of compensation, the parties' dispute involves the calculation of gross wages. As claimant had an incentive pay job which varied from week to week, the gross rate should be calculated under Iowa Code section 85.36(6) using the previous 13 week average before the injury. Absent such evidence, claimant's gross weekly earnings had to be calculated by using the average wage evi dence offered. Barker v. City Wide Cartage, 1 Iowa Indus. Comm'r Rpt 12 (Appeal Decision 1980). In this case, it was found that claimant's gross weekly earnings at the time of injury was $632.80. According to the applicable rate book let published by this agency and the stipulations of the parties as to martial status and entitlement to exemptions, claimant's rate of compensation for disability caused by the November 13, 1990 injury is $388.43. ORDER 1. With reference to the injury of September 19, 1988, defendants shall pay to claimant twenty-six (26) weeks of permanent partial disability benefits at the stipulated rate of three hundred sixty-three and 54/l00 dollars ($363.54) per week from December 20, 1990. 2. With reference to the injury of November 13, 1990, defendants shall pay to claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of three hundred eighty-eight and 43/l00 dollars ($388.43) per week from February 29, 1991. Defendants shall also pay to claimant healing period benefits from November 20, 1990 through February 28, 1991, at the rate of three hundred eighty-eight and 43/l00 dollars ($388.43) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for weekly benefits previously paid. 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 this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fees paid in this matter. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies To: Mr. Michael J. Schilling Attorney at Law 205 Washington Street P O Box 821 Burlington, Iowa 52601 Mr. E. J. Kelly Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 5-1803 Filed July 16, 1992 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONNIE SHAFFER, Claimant, vs. File Nos. 981314; 931131; 910596 EXIDE CORPORATION, A R B I T R A T I O N Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case.