BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD BOWMAN, Claimant, File No. 453292 vs. D E C I S I O N EAST UNION COMMUNITY SCHOOL DISTRICT, O N Employer, R E M A N D and F I L E D THE HARTFORD INSURANCE COMPANY, JUN 7 1989 Insurance Carrier, Defendants. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE ISSUES PRESENTED On May 30, 1989, the matter was remanded to me for consideration of the memorandum of agreement approved by this agency on June 14, 1986, with reference to the undersigned's award of medical benefits in a decision rendered on April 22, 1988. The April 22, 1988 decision stated as follows in the first unnumbered paragraph of the fifth unnumbered page: Defendants in this case have denied the causal connection of claimant's current low back problems to the work injury. For that reason and absent a future change in defendants [sic] legal position on the issue of liability, defendants will not have the right to choose the care for claimant's injuries... In the prehearing report submitted to the undersigned prior to the hearing on February 23, 1988, the parties indicated that the causal connection of the medical expenses requested by claimant to the work injury was disputed by defendants. APPLICABLE LAW AND ANALYSIS A memorandum of agreement conclusively establishes an employer-employee relationship and the occurrence of an injury arising out of and in the course of employment. Trenhaile v. Quaker Oats Co., 228 Iowa 711, 292 N.W. 799 (1940); Fickbohm v. Ryal Miller Co., 228 Iowa 919, 292 N.W. 801 (1940). It does not establish the nature or extent of disability. Freeman v. Luppes Transport Company, Inc., 227 N.W.2d 143 (Iowa 1975). As a memorandum of agreement does not establish causal connection of the injury to any particular condition or ailment, defendants had a right to deny liability for, and contest the causal connection of, the condition treated by Dr. Yennie and at the Sister Kinney Institute. However, when they choose to do so, they lost the right to chose the care. Defendants cannot deny responsibility to furnish the care and at the same time assert a right to choose the care. Kindhart v. Fort Des Moines Hotel, Vol. 1 Iowa Industrial Commissioner Decisions No. 3, 611 (App. Dec. 1985); Barnhart v. MAQ Incorporated I Iowa Industrial Commissioner Report 16 (App. Dec. 1981). Therefore, the existence of a memorandum of agreement has no bearing upon the decision rendered April 22, 1988. The prehearing report indicated defendants' position at hearing. ORDER The arbitration award as ordered on April 22, 1988, is unchanged and reaffirmed. Signed and filed this 7th day of June, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James R. Lawyer Attorney at Law West Towers Office 1200 35th St., STE 500 West Des Moines, Iowa 50265 Mr. Frank T. Harrison Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD BOWMAN, Claimant, FILE NO. 453292 vs. A R B I T R A T I 0 N EAST UNION COMMUNITY SCHOOL DISTRICT, D E C I S I 0 N Employer, and F I L E D THE HARTFORD INSURANCE COMPANY, APR 22 1988 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Donald Bowman, claimant, against East Union Community School District, employer (hereinafter referred to as East Union), and The Hartford Insurance Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on March 1, 1976. On February 23, 1988, 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 the prehearing 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. Oral testimony was received in the hearing only from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On March 1, 1976, claimant received an injury which arose out of and in the course of employment with East Union. 2. The injury of March 1, 1976 was a cause of both temporary disability during a period of recovery and permanent disability. 3. The medical bills submitted by claimant at hearing were causally connected to the medical condition upon which the claim herein is based but that the issue of their causal connection to the work injury remains an issue to be decided herein. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to medical benefits under Iowa Code section 85.27. SUMMARY OF THE EVIDENCE The following is a summary of the evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant is a retired school teacher. According to uncontroverted medical records submitted into the evidence, claimant first injured his low back following an incident on March 1, 1976, involving an altercation with a student and claimant was pushed to the floor striking his lower back. After a period of conservative treatment, claimant's physicians diagnosed that he suffered a herniated disc at the L3-4 level in the incident. This herniation was surgically corrected by a discectomy and fusion surgery in 1976 and 1977. Claimant returned to work but in 1980, claimant reported to his physicians that he had again injured his low back after being tripped by a disturbed student. Claimant then underwent additional treatment of therapy including evaluation and treatment by Charles Burton, M.D., at the Sister Kenny Institute in Minneapolis, Minnesota. Claimant was then rated as suffering from a 20 percent permanent partial impairment to his low back as a result of his chronic low back difficulties. Dr. Burton from the Sister Kenny Institute makes the following diagnosis: DIAGNOSTIC IMPRESSIONS: 1. Lumbar degenerative disc disease. 2. Failed low back surgery syndrome, status post L3-4 discectomy 11-76, and L3-4 fusion 7-77. 3. Chronic herniated disc L5-S1, left. 4. Left sciatic radiculitis secondary to the above. 5. Possible lumbosacral adhesive arachnoiditis and epidural fibrosis. 6. Possible post left CVA residual. 7. History of hypertension. 8. Chronic pain patient. Dr. Bowman has given claimant permanent prescriptions for therapy including hydrotherapy and the implantation of a PENS unit in claimant's back which is an electrical nerve stimulation device to reduce pain. Claimant continues to use this electrical nerve stimulation device at the present time. In November, 1984, claimant and defendants entered into a special case settlement under Iowa Code section 85.35 for all claims arising from the 1980 back injury. This special case settlement was approved by order of this agency on November 14, 1984. At the same time claimant and defendants entered into another agreement regarding the medical expenses from the 1976 injury. According to exhibit 1, claimant and defendants agreed that the back condition treated at the Sister Kenny Institute was related to the 1976 altercation. The parties also agreed that certain medical payments will continue. The agreement provided that defendants were not agreeing that all future back problems claimant may experience are causally connected to the 1976 injury. Defendants then agreed to pay some outstanding bills and to pay claimant a sum of $302.95 per year as reimbursement for nonprescription medications and batteries for his PENS unit. There was no showing in the evidence of this case that this portion of the settlement was approved by this agency or that it was even submitted to this agency. The order approving the 85.35 settlement did not refer to the 1976 injury or to the payments made under this auxiliary agreement. The action filed herein is a result of an allegation that defendants are refusing to live up to this agreement. Claimant testified in 1986 on a trip to Kansas City, Missouri he met a Richard Yennie, D.C., who noted that claimant had back problems and suggested that he try his chiropractic clinic which specializes in giving acupressure treatments as opposed to acupuncture treatment. Claimant testified that he has traveled from his home in Des Moines to the Yennie Clinic in Kansas City, Missouri on several occasions during 1986 and 1987 and continues to do so at the present time. Claimant states that he obtains relief, albeit temporary, from such treatment and must return every three or four months. Defendants refuse to pay for this treatment and in the prehearing report denied the causal connection of claimant's current medical expenses and medical condition to the 1976 work injury. In a report dated June 7, 1986, Dr. Yennie and his partner, Katherine Smith, D.C., opined that claimant suffers from a lumbar nerve root compression resulting in bilateral sciatic neuralgia. "Onset, accident, March 1976." Claimant's appearance and demeanor at the hearing indicated that he was testifying in a candid and truthful manner. APPLICABLE LAW AND ANALYSIS Pursuant to Iowa Code section 85.27, claimant is entitled to either an order directing defendants to pay reasonable medical expenses for treatment of a work injury or an order of reimbursement. Claimant is entitled to an order for reimbursement only for those expenses which he has previously paid. Krohn v. State, N.W.2d (Iowa 1988) decision filed March 16, 1988. First, claimant seeks enforcement of the 1984 settlement agreement. This deputy industrial commissioner is without statutory authority to enforce a contract by awarding damages by ordering specific performance as a result of any alleged breach of contract. Such matters are proper only before the Iowa District Court. Second, this agency did not participate in the 1984 agreement, nor was there any approval of the agreement to the knowledge of this deputy commissioner. Iowa Code section 86.13 specifically states that compensation agreements are not valid unless approved by this agency. Although it could be argued under some recent decisions of the courts, that the agreements with reference to medical benefits are not 86.13 "compensation" agreements requiring agency approval. However, without participation by this agency it is not binding on this agency in any event. Whether or not the parties are estopped from asserting matters contrary to the agreement before this agency is a matter again for the courts not for this deputy commissioner. Third, defendants claim that treatment by Dr. Yennie was not authorized and claimant is not entitled to reimbursement for such expenses or such treatment under Iowa Code section 85.27 which provides employers with the right to choose the care. However, section 85.27 applies only to injuries compensable under Chapters 85 and 85A of the Code and obligates the employers to furnish reasonable medical care. This agency has held that it is inconsistent to deny liability and the obligation to furnish care on the one hand and at the same time claimant's right to choose the care. Kindhart v. Fort Des Moines Hotel, I Iowa Industrial Commissioner Decisions No. 3, 611 (1985); Barnhardt v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981). The right to control the medical care must be conditioned upon the establishment of liability for an injury or a condition related to an injury either by admission or final agency decision. Iowa Code section 85.27 does not give the employer the right to choose the care without offering claimant the right to petition the commissioner to resolve disputes concerning such care. However, this agency does not have authority to order an employer to furnish any particular care unless the employer's liability for the injury under 85, 85A or 85B has been established. Therefore, the right to control the care must coincide with this agency's jurisdiction over the matter. Defendants in this case have denied the causal connection of claimant's current low back problems to the work injury. For that reason and absent a future change in defendants legal position on the issue of liability, defendants will not have the right to choose the care for claimant's injuries until a decision of this agency establishing a work relatedness of claimant's current medical expenses becomes final. As the views of Dr. Yennie and his associate that their treatment is causally connected to the 1976 injury is uncontroverted, the required causal connection can be found in this case. Therefore, the full expenses, including travel expenses for the treatment of claimant by Dr. Yennie are reimbursable. The hydrotherapy treatment expenses is also clearly causally connected due to the prescription for such therapy by doctors at the Sister Kinney Institute. In his testimony, claimant stated that he had paid all of the requested expenses and therefore defendant will be ordered to reimburse claimant. All the medical expenses and travel expenses appear reasonable. The treatment was offered by a medical practitioner whose qualifications were not challenged by defendants. Although the agreement of settlement in 1984 could not be enforced, the amounts in the agreement to reimburse claimant for nonprescription medication and batteries for the PENS unit appear to be a reasonable approach to the problem and will be adopted as a part of claimant's entitlement to expenses under 85.27 in the future. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On March 1, 1976, claimant suffered an injury to his low back which arose out of and in the course of his employment with East Union. 3. The work injury of March 1, 1976, was a cause of permanent disability and of physical activity restrictions. 4. The expenses listed by claimant in the prehearing report are necessary and reasonable expenses for medical treatment of the work injury of March 1, 1976. 5. As of the date of this decision, defendants have denied liability for the condition which necessitated the expenses incurred by claimant listed in the prehearing report. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to the medical benefits awarded below. ORDER 1. Defendants shall pay to claimant the sum of three thousand six hundred seventy-three and 45/100 dollars ($3,673.45) as reimbursement for medical expenses previously paid and defendants are directed to pay all future treatment and travel expenses by claimant for continued treatment by Dr. Yennie. Defendants may apply to this agency to change the care but shall continue to provide such care during the pendency of such proceedings. Defendants shall also pay the sum of three hundred two and 95/100 dollars ($302.95) per year as a result of claimant's nonprescription medication and battery expenses. This amount may be adjusted by the parties as needed upon application of this agency. 2. Defendants shall receive credit for previous payments of benefits under a nonoccupational group insurance plan if applicable and appropriate under Iowa Code section 85.38(2). 3. Defendants shall pay the costs of his action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 22nd day of April, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jim Lawyer Attorney at Law 1200 35th Street Suite 500 West Des Moines, Iowa 50265 Mr. Frank T. Harrison Attorney at Law 2700 Grand Ave. Des Moines, Iowa 50312 2500 Filed April 21, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD BOWMAN, Claimant, FILE NO. 453292 vs. A R B I T R A T I 0 N EAST UNION COMMUNITY SCHOOL DISTRICT, D E C I S I 0 N Employer, and THE HARTFORD INSURANCE COMPANY, Insurance Carrier, Defendants. 2500 An agreement among the parties as to the payment of medical expenses as a result of a 1976 injury which was not approved by this agency was not found to be binding upon this agency. Defendants were found to have lost the right to choose the care because of a denial of liability of the condition being treated. Medical benefits were awarded to claimant upon an uncontroverted showing of causal connection of the expenses to the work injury of 1976. 2505 Filed June 7, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD BOWMAN, Claimant, File No. 453292 vs. D E C I S I O N EAST UNION COMMUNITY SCHOOL DISTRICT, O N Employer, R E M A N D and THE HARTFORD INSURANCE COMPANY,. Insurance Carrier, Defendants. 2505 - Right to chose medical care - Decision on Remand The existence of a memorandum of agreement does not provide the right to chose the care. Although a memo establishes liability for an injury, it does not establish causal connection of the injury to any particular condition being treated. Employers have the right to deny liability for or, the causal connection of, any particular condition even under a memo but when they do so, they lose the right to chose the care. Agency precedent cited. Original decision reaffirmed. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOSEPH P. BOYLE, : : Claimant, : : vs. : : File No. 468349 W. A. KLINGER, : : M E D I C A L Employer, : : B E N E F I T S and : : D E C I S I O N MARYLAND CASUALTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding brought by Joseph Boyle, claimant, against W. A. Klinger, employer (hereinafter referred to as Klinger), and Maryland Casualty Company, insurance carrier, defendants, for the recovery of workers' compensation medi cal benefits as the result of an injury on March 29, 1977. A memorandum of agreement for this injury was filed on April 12, 1977. On March 18, 1992, a hearing was held on claimant's petition and the matter was considered fully sub mitted at the close of this hearing. The parties have submitted a prehearing report of con tested 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 prehearing report, the parties have stipulated to the following matters: 1. On March 29, 1977, claimant received an injury aris ing out of and in the course of employment with Klinger. 2. With reference to the medical bills submitted by claimant at the hearing, exhibits 10-19, it was stipulated that the providers would testify that the charges and treat ment were fair and reasonable and that defendants are not offering contrary evidence. It was also agreed that these expenses are causally connected to the medical condition upon which the claim herein is based but that the issue of their causal connection to any work injury remains an issue to be decided herein. ISSUE The only issue submitted by the parties for determina Page 2 tion in this proceeding is the extent of claimant's entitle ment to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the circumstances leading up to his seizure disorders, the causal connection of which to the work injury was in dispute. From his demeanor while testi fying, claimant is found credible. This finding is made despite the fact that claimant was convicted of a theft felony in 1989. This involved assisting his ex-wife in cashing a stolen check. This, however, appears to be the only negative aspect of his character history from the evi dence presented. The District Court apparently concluded this as well as he received a suspended sentence. Claimant served honorably in the military service only a short time before this incident. He has fallen on financial hard times due to his seizure disorder. Claimant's demeanor convinced the undersigned that he was telling the truth as to the lack of any intervening injuries to the head between 1977 and the present and that alcohol use only occurred twice before his seizures: once in 1989 and another in October 1990. At the request of claimant and without objection from defendants, official notice was taken of the memorandum of agreement filed with this agency by defendants on April 12, 1977. Claimant was initially injured while working as a construction worker during a windy day. On the day of injury his hard hat blew off and the wind subsequently caused a large wooded 2 x 4 to fall 10-15 feet, perpendicu larly, onto the top of his head. He then fell to the con crete. Claimant was immediately hospitalized with a brain concussion and brain surgery was required to remove a large blood clot from the brain. Claimant was initially given anti-seizure medicine following the injury but this ended when he experienced no seizures and was released from care six months after the injury. The primary treating physician for this injury was Horst Blume, M.D., a neurosurgeon in the Sioux City metro area. Claimant had no head or brain difficulties following his release from Dr. Blume until February 1987 when he was serving in the U.S. armed services stationed at Ft. Hood, Texas. At that time, claimant had a seizure while playing pool in his barracks. He stated he was not consuming alco holic beverages at the time nor during the 48 hours before the seizure. Claimant was then placed back on Dilantin, an anti-seizure drug, by military doctors during the rest of his enlistment period. Claimant was honorably discharged in March 1988 and at that time claimant on his own decided to stop taking Dilantin. Claimant was seizure free for almost six months but then while drinking coffee on the morning of August 27, Page 3 1989, he experienced another of these "grand mall" type of seizures and awoke in the hospital. Claimant admitted to his physicians at the time that he had consumed 8-10 beers the night before and was suffering a hangover at the time. Claimant was placed back on Dilantin and he has taken this drug ever since. He was also advised to stop drinking alco holic beverages. Claimant experienced four more seizures in 1991, the last being in December while attending a pre-employment training session for an insurance company. Claimant stated that he had a couple of drinks the night before the seizure in October 1991. He states that pursuant to advice of doc tors, he quit drinking alcoholic beverages in October 1991. Claimant's family physician, Jeffrey Knerl, M.D., states he has no definite opinion as to the causal connec tion between the injury of March 29, 1977 and claimant's seizure disorders beginning in February 1987 but thought such a connection possible. The treating neurologist/neurosurgeon, Dr. Blume, definitely opines that these seizures are a direct result of this injury. Another neurologist, Alfredo Socarras, M.D., opines that these seizures are likely to be post-traumatic in origin but also believes that ingestion of alcoholic beverages has been a factor. Dr. Socarras did not explain why the seizures occurred when claimant was not drinking, especially the most recent seizure which has occurred since claimant ended his consumption of alcohol. As the original treating physician, Dr. Blume's views must be given the greater weight. In any event, regardless of the alcohol ingestion, the consensus of the opinion appears to be that the work injury was and remains to be a significant causative factor in the seizure disorders. Therefore, it is found that the seizures since February 1987 and any future such seizures are likely due to the work injury of March 29, 1977. Given the testimony of claimant and the parties' stipu lations in the prehearing report, the requested medical expenses (exhibits 10-19) are found causally connected to the injury of March 29, 1977 and constitute fair and reason able treatment for this work injury. CONCLUSIONS OF LAW In a medical benefits case the claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the medical condition requiring medical treatment. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in defi nite, positive or unequivocal language and the expert opin ion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact to determine from the completeness of the premise given the expert or other surrounding circum Page 4 stances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). To establish compensability, the injury need only be a significant factor, not be the only factor, caus ing the claimed medical condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Pursuant to Iowa Code section 85.27, claimant is enti tled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, causal connection and reasonable ness were found. As a matter of law, claimant is entitled to reimbursement and/or payment of these expenses directly, whichever is appropriate. ORDER 1. Defendants shall pay to claimant the medical expenses set forth in exhibits 10-19. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 2. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. Signed and filed this ____ day of March, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis M. McElwain Attorney at Law P O Box 1194 Sioux City, Iowa 51102 Mr. Richard G. Book Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 5-2505 Filed March 24, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : JOSEPH P. BOYLE, : : Claimant, : : vs. : : File No. 468349 W. A. KLINGER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : MARYLAND CASUALTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2505 - Non-precedential, extent of medical benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONNA CLARK ADAIR, Claimant, File No. 468417 vs. A P P E A L FURNAS ELECTRIC COMPANY, D E C I S I O N Employer, F I L E D and FEB 22 1988 AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from a review-reopening decision awarding claimant permanent total disability benefits. The record on appeal consists of the transcript of the review-reopening hearing; claimant's exhibits A through J; defendants' exhibits 1 through 8 and 10 through 20; and a joint exhibit. Only appellants have filed a brief on appeal. ISSUES Defendants state the following issues on appeal: I. Deputy commissioner Ort should have recused himself. II. As a matter of law, there is no causal relationship between Adair's job injury in 1977 at Furnas and Adair's disability resulting from her second tos [thoracic outlet syndrome] episode. III. As a matter of law, there is no causal relationship between Adair's job injury in 1977 at Furnas and Adair's disability resulting from her third (and current) tos episode. IV. Assuming, arguendo, that Adair's second and third tos' are compensable, is the injury to the body as a whole? V. Assuming, arguendo, that Adair's second and third tos' are compensable, were the medical bills of Hines and Toon authorized by defendants? VI. Assuming, arguendo, that Adair's second and third tos' are compensable, did Adair act with willful intent to injure herself? VII. Assuming, arguendo, that Adair's second and,third tos' are compensable, is Adair entitled to additional healing period benefits? VIII. Was Adair ever mentally disabled by her work at Furnas? IX. Assuming, arguendo, that Adair's second and third tos' are compensable, is Adair totally permanently disabled? REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Briefly stated, claimant sustained a work injury on January 31, 1977 resulting in thoracic outlet syndrome, carpal tunnel syndrome and an aggravation of a preexisting psychological condition. In an appeal decision filed September 14, 1982 defendants were ordered to pay a running award of healing period benefits for claimant's psychological benefits. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and evidence. ANALYSIS Defendants argue that remarks made by the deputy during an offer of proof by defendants reveal that the deputy was biased and prejudiced. Review of the remarks which defendants consider prejudicial (Vol III Transcript, pages 373-378) reveals nothing which would suggest that the hearing was not fair and impartial. The undersigned reviewed the voluminous record and re-reviewed the voluminous record. It is noted that the deputy allowed defendants to proceed with their offer of proof. Moreover, the de novo review afforded defendants on appeal assures that the findings of fact are fair. The review-reopening decision adequately and accurately analyzes the other arguments presented by defendants on appeal and it is adopted herein. The.findings of fact, conclusions of law and order of the deputy are adopted herein. 1. Claimant received an injury arising out of and in the course of her employment on January 31, 1977. 2. The nature of the injury received by claimant was a thoracic outlet syndrome, carpal tunnel syndrome, and a disabling aggravation of a preexisting psychological condition. 3. On September 14, 1982 the industrial commissioner filed a final agency decision requiring defendants to pay a running award of benefits pursuant to section 85.34(1), The Code, because of claimant's psychological disability. 4. In late 1983 or early 1984 defendants authorized Dr. Hines to treat claimant's psychological disability. 5. Claimant recovered from her psychological disability in July or August 1985. 6. By the time claimant recovered from her psychological disability, claimant was suffering from a recurrent thoracic outlet syndrome. 7. Claimant's recurrent thoracic outlet syndrome would not have occurred but for the first thoracic outlet syndrome. 8. Defendants authorized Dr. Blessman to treat claimant's injuries. 9. Dr. Blessman referred claimant to a number of different physicians. 10. In February 1985 claimant was operated on for the recurrent thoracic outlet syndrome. 11. The surgery performed in February 1985 was of urgent character. 12. Defendants did not offer claimant alternative treatment from that which had been recommended by Dr. Blessman and his colleagues. 13. Defendants denied any liability for claimant's recurrent thoracic outlet syndrome. 14. Claimant may need further surgery for thoracic outlet syndrome in the future. 15. Claimant is not medically capable of returning to gainful employment. 16. Claimant has been totally disabled since September 14, 1982 and will continue to be so for an indefinite period into the future. 17. Claimant has not achieved medical recovery from her injury for nine years. 18. Claimant is credible and is well motivated to recover from her injury. 19. Claimant has at no time made any misrepresentation of material facts concerning this matter. 20. Claimant's physical and psychological condition would not have improved without the treatment given by Dr. Blessman and his colleagues. 21. Claimant's rate of compensation is $74.44. 22. Claimant did not willfully intend to injure herself. 23. Claimant is 27 years old, married, and has four children. She was single at the time of her injury. 24. As a result of her injury, claimant incurred the following medical expenses which remain unpaid: a. City of Des Moines $ 75.00 b. Steven Adelman, D.O. 200.00 c. Osceola Drug 239.57 d. Todd Hines, Ph.D. 2,400.00 e. Medical Center Anesthesiologists, P.C. 468.00 f. J. Song, M.D. 60.00 g. David Friedgood, D.O. 200.00 h. Cardiac Surgery Associates, P.C. 2,000.00 i. Mercy Hospital Medical Center 4,473.40 j. Paul From, M.D. 200.00 k. Clark Medical Center 60.00 l. James Blessman, M.D. 20.00 25. As a result of her injury, claimant has incurred transportation expenses for medical treatment in the amount of $1,410.96. 26. Claimant has incurred litigation expenses in the amount of $57.95. 27. The medical expenses incurred by claimant are fair and reasonable. 28. The medical expenses incurred by claimant were reasonably necessary. 29. Claimant has not been underpaid weekly benefits. 30. As a result of her injury, claimant will continue to require psychological treatment of a maintenance nature. CONCLUSIONS OF LAW Claimant has proven by a preponderance of the evidence that she received an injury arising out of and in the course of her employment on January 31, 1977. Claimant has proven by a preponderance of the evidence that the proximate cause of her present disability is the work injury of January 31, 1977. Claimant has proven by a preponderance of the evidence that as a result of her work injury of January 31, 1977 she is permanently and totally disabled for industrial purposes. Claimant has proven by a preponderance of the evidence that the medical expenses incurred by her were causally connected to her work injury of January 31, 1977; that they were reasonably necessary for the treatment of her injury; that they were fair and reasonable; and that she was authorized, within the meaning of section 85.27, The Code, to incur those expenses. Defendants have failed to prove by a preponderance of the evidence that claimant willfully intended to injure herself. WHEREFORE the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant weekly compensation benefits at the rate of seventy-four and 44/100 dollars (74.44) commencing September 14, 1982 and continuing during the period of claimant's disability pursuant to section 85.34(3). Defendants shall take credit for all weekly benefits paid to claimant between September 14, 1982 and the date of this decision. That defendants shall pay claimant medical expenses as outlined in paragraph 24 of the above findings of fact. That defendants shall pay unto claimant as reimbursement for transportation expenses the sum of one thousand four hundred ten and 96/100 dollars ($1,410.96). That defendants shall pay the costs of this action, including fifty-seven and 95/100 dollars ($57.95) to claimant's counsel for the deposition of Dr. Hines. That defendants shall file a claim activity report as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of February, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave., Suite 111 Des Moines, Iowa 50312 Mr. W. N. Bump Mr. Richard E. Haesemeyer Attorneys at Law 2829 Westown Parkway, Suite 100 West Des Moines, Iowa 50265-1314 1402.40 - 1804 Filed February 22, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONNA CLARK ADAIR, Claimant, vs. FURNAS ELECTRIC COMPANY, File No. 468417 Employer, A P P E A L and D E C I S I 0 N AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.40 - 1804 Deputy's finding that claimant was permanently and totally disabled was adopted on appeal. Defendants' argument that the deputy should have recused himself was rejected. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LANE L. CROSSON, Claimant, File No. 470570 VS. R E V I E W - FORMAN FORD AND COMPANY, R E O P E N I N G Employer, D E C I S I O N and IOWA NATIONAL MUTUAL INSURANCE COMPANY and IOWA INSURANCE GUARANTY ASSOCIATION, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Lane L. Crosson, claimant, against Forman Ford and Company (Forman), employer, and Iowa National Mutual Insurance Company/Iowa Insurance Guaranty Association, insurance carrier, for additional benefits as a result of an injury on April 26, 1977. A hearing was held in Ottumwa, Iowa, on January 14, 1987 on claimant's review-reopening petition that was filed on November 15, 1984. A prior review-reopening hearing was held on October 30, 1980 regarding a petition filed on November 15, 1979. The agency's file establishes that a memorandum of agreement was filed herein on June 14, 1977. It was not necessary to show a change of condition at the hearing held on October 30, 1980 merely because a memorandum of agreement had been filed. See Kevin R. Shoemaker v. Adams Door Co., et al, (Appeal Decision, filed on August 30, 1985; affirmed by the Iowa District Court on June 23, 1986). Defendants argue as follows on page 1 of their brief filed herein on February 18, 1987: "It is important for the Deputy to recall that this is the second Review-Reopening proceeding that the claimant has brought in the same litigation.O (original emphasis.) However, it is not important for this deputy to recall that this is the second review-reopening proceeding as no change of condition showing was required at the first review-reopening proceeding. The second review-reopening proceeding was fully submitted on January 14, 1987. The record consists of the testimony of claimant and Betty Crosson; claimant's exhibits 1 through 6; and defendants' exhibits A through J. Defendants' brief was filed on February CROSSON V. FORMAN FORD AND COMPANY Page 2 18, 1987. The briefing period was extended by this deputy to February 18, 1987. The parties stipulated that claimant's weekly rate of compensation is $160 and that the medical benefits issue (Iowa Code section 85.27) was being withdrawn and, therefore, this issue need not be decided by the hearing deputy. ISSUES The contested issues are: 1) Whether claimant has shown a physical change of condition when his physical condition on October 30, 1980 (date of first review-reopening hearing) is compared with his physical condition on January 14, 1987 (date of second review-reopening hearing); at the close of the hearing on January 14, 1987, claimant's counsel on the record stated that claimant's sole theory is a physical change of condition theory. All other theories are therefore waived as not asserted at the agency level. See, e.g., Klein v. Furnas Electric Co., 384 N.W.2d 370, 375 (Iowa l986); Armstrong v. State of Iowa Bldgs., 382 N.W.2d 161, 167 (Iowa 1986); 2) Whether there is a causal relationship between claimant's injury and asserted additional impairment or disability; at hearing, and in their brief, defendants argue that claimant has not shown a change of condition, but if it is determined that a physical change of condition has been shown, that this change of condition is not causally related to the work-related injury of April 26, 1977; defendants additionally or alternatively argue that there is no causal relationship between the injury of April 26, 1977 and claimant's alleged impairment or disability. Defendants conceded at hearing that their arguments may overlap; and 3) Nature and extent of disability; claimant asserted the odd-lot doctrine in this case at time of prehearing and at the January 14, 1987 hearing. Defendants argued at time of hearing and in their brief that the odd-lot doctrine has no application in this case for a number of reasons. SUMMARY OF THE EVIDENCE The following is a brief summary of pertinent evidence presented in this case. All the evidence elicited or received on January 14, 1987 was considered in arriving at this decision. Much of the evidence elicited by claimant at hearing on January 14, 1987 was not relevant or material to any issue in this second review-reopening proceeding. Exhibit 1, page 1 (dated September 24, 1984), is authored by J. B. McCanville, M.D., and reads in part: "At this time he still has constant pain radiating down the posterior aspect of the right leg to the right calf." (Emphasis added.) Exhibit 1, page 2, reads in part: It is apparent that Mr. Crosson continues to have a significant back problem characterized by spinal stenosis CROSSON V. FORMAN FORD AND COMPANY Page 3 with residual lumbar radiculopathy L5 to Sl despite two previous back surgeries and failed attempts at relief by various other treatment modalities. He continues to have significant pain, muscle spasm, limitation of motion of the spine with appropriate radicular motor, sensory and reflex changes such that he would appear to continue to be disabled under category of impairments 1.05: Disorders of the Spine C. Other Vertebrogenic Disorders (spinal stenosis). (Emphasis added.) Exhibit 2 (dated September 24, 1984), is authored by Lawrence J. Gralek, M.D., and reads in part: "Lane Crosson was evaluated by me today because of low back pain with right leg radiation. It is felt that he has been totally disabled since the original date of injury". (Emphasis added.) Exhibit 4, page 3 (dated January 13, 1984), is authored by Dr. Lehmann, and reads in part: The patient has been totally disabled since the time of his original injury and currently perceives himself as totally disabled and unable, at this point, to return to full employment. He has had (2) surgeries for lumbar disc disease, with incomplete relief of his pain in the lumbosacral level. On examination today, he had a severely antalgic gait, with absence of a right ankle jerk. (Emphasis added.) Exhibit 6, page 3 (dated July 18, 1985), is authored by G. Brian Paprocki, M.S., V.E., and reads in part: And finally, Dr. Bakody, who performed both back surgeries, suggested in an August 21, 1979 letter report that any physical impairment rating "must be related to the industrial capacity or lack thereof which in this case appears to be 100 percent at this time." He recommended a referral to "Vocational Rehabilitation Services." Exhibit 3 is the letter of August 21, 1979 authored by John T. Bakody, M.D., but this exhibit is incomplete because the person photocopying the letter cut off part of the words. However, deposition exhibit 3 of exhibit F is intact and has all of Dr. Bakody's language. Exhibit A, page I-1 (dated June 3, 1980), documents that claimant's first back surgery (a laminectomy) was in September 1977 and was done by Dr. Bakody; claimant's second back surgery also performed by Dr. Bakody was in December 1978. Exhibit A, page I-1 (dated June 3, 1980 ), is, authored by Martin Aronow, M.D., and states in part after describing the two surgeries mentioned above: He has been unable to obtain any relief from his pains, however, and has been to Iowa City and sought other opinions. It is generally the consensus that nothing else surgical can be done for this gentleman. He presently continued to have rather constant, and at times, quite CROSSON V. FORMAN FORD AND COMPANY Page 4 severe low back pains, which radiate into both legs with the right leg pain being constant. Exhibit A, page II-1 (dated June 4, 1980), is authored by G. Charles Roland, M.D., and reads in part: "The patient denies any improvement from his second operation .... Today he states that he has chronic low back pain." Exhibit A, page V-2 and 3 (dated June 3, 1980), is authored by Kathy Beal, M.S.W., and reads in part: He related that he is beginning to worry more about his physical condition because he has been feeling worse since the first of the year and believes his condition is worsening. .... He indicated that he has no intention of doing any sort of work because he feels he was too severely [sic] injured. Exhibit A, page VI-1 (dated June 4, 1980), is authored by Todd Hines, Ph.D., and reads in part: "He sees himself as completely disabled and it is very difficult for him to conceptualize a future." Exhibit A, page VIII-1 (dated June 14, 1980), is authored by Jane Muller-Hair, & reads in part: Mr. Crosson does not believe that he is capable of any gainful employment. He states, "I'll never be able to work like I once did and to make the kind of money, that I used to before I got hurt." Lane is very determined that his physical condition is understood by all parties involved. He is reluctant [sic] to even consider full-time employment of any type, because he is uncertain as to his day to day medical status. (Original emphasis.) Exhibit A, page VIII-3, reads in part: "[H]e would probably not be able to do any lifting of glass objects weighing over five pounds." Exhibit A, page VIII-4, reads in part: "Mr. Lane Crosson appears to be extremely doubtful of his physical ability to resume full-time work of any kind." (Original emphasis.) Exhibit F is the deposition of Dr. Bakody taken on September 29, 1980. Dr. Bakody first saw claimant on September 7, 1977 when he was admitted to Mercy Hospital in Des Moines. On page 24, Dr. Bakody stated: Q. When was your next visit after August the 8th, 1979? A. This would have been October 5, 1979, when he indicated that he was awfully miserable, and he was still showing essentially the same findings. And it was at this time that I felt that he had a chronic pain problem, for which I wasn't finding the answers, and suggested he go over and see Dr. McDonnell, who is a neurosurgeon in the Department of CROSSON V. FORMAN FORD AND COMPANY Page 5 Neurosurgery at the University in Iowa City, and this was arranged to be done. On page 29, the following exchange took place: Q. Dr. Bakody, when you are referring to industrial capacity of 100 percent, were you making references to this former employment? A. Primarily, yes, sir. On page 31, the following exchange is set out: Q. And would you feel as if Mr. Crosson is likely to improve substantially? A. I would hope that he would or might, but I don't have reasonable expectation that he will, and I think this is really what they mean by maximum recovery, isn't it? Exhibit I is the transcript of the hearing held on October 301 1980. Claimant stated on page 19: Q. Explain to the Hearing Officer the type of activity that causes you pain? A. I don't have to have any particular activity. I've got constant pain regardless of whether I do anything or not. But there is many times that I might get up in the morning and I'm always under aggravation when I get up for an hour or two. I might get up, get in the car, and go two blocks to the post office. And by the time I get back, I'm so miserable, I can't do nothing. Q. Is your back sore now? A. Absolutely sore. Q. Can you walk without pain? A. No. Q. Can you stand without pain? A. Nope, I can't, not any length of time. I'm not talking about any length of time. I'm talking about five, ten minutes. That's it. I enjoy talking to people, but if I can't stand, I've got to lay down. I just can't do it. Q. Can you stand to sit for a long period of time? A. No, I don't sit for over, probably, half an the most. So I get up and move around. On page 20, the following testimony by claimant appears: Q. Let me rephrase the question. You have indicated how you felt when you told the Hearing Officer about the day or CROSSON V. FORMAN FORD AND COMPANY Page 6 two after you tried to get out of bed in April of 1977. Do you recall that testimony? A. Yes. Q. Has your physical condition--how you felt--improved since that day? A. No. I would say, if anything, it would have deteriorated because I went back to the doctors several times. And I had either physical therapy done on me to try to get rid of the soreness and the pain or I've had other medications prescribed to me. If anything, I would say it deteriorated. On page 22, the following testimony by claimant appears: Q. Are you able to do any of that and have you been able to do any of that since April 26, 1977? A. I haven't been able to do it. I can't hunt. I can't fish, which I enjoyed very much because I can't get around. I've done some bowling--not a whole lot--but I can't do that because I can't get around to do it. On page 24, claimant stated he could not return to glazier work, the type of work he was doing on April 26, 1977. On page 25, claimant stated in part regarding shopping for groceries "It kills me." On page 64, Betty Crosson stated: Q. After the injury, what has he been able to do? A. Very little. Well, such as when it comes to winter weather, if either one of the boys aren't around, it's me that does the snow removal and so forth. APPLICABLE LAW AND ANALYSIS Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 20-2, page 158 (1984), reads as follows with the footnotes omitted: The operative phrase in a review-reopening proceeding is change of condition.* The employee bringing the review-reopening has the burden of establishing by a preponderance of the evidence that the increased incapacity on which he bases his claim is a result of the original injury.* The basis of a decision in a review-reopening is the employee's condition subsequent to the time being reviewed. The change may be from temporary total disability to permanent partial disability.* It may also be a change in degree of disability.* A redetermination of the condition of the claimant as it was adjudicated by a prior award is inappropriate.* A difference in expert opinion regarding degree of impairment stemming from the original injury is not sufficient justification for a different determination by the commissioner.* However, if there is "substantial evidence of a worsening of condition not CROSSON V. FORMAN FORD AND COMPANY Page 7 contemplated at the time of the first award" a review-reopening is justified.* (Emphasis added.) Claimant herein has clearly failed to establish a physical change of condition by a preponderance of the evidence. In fact, the exhibits that claimant introduced at hearing on January 14, 1987 document that there has been no physical change of condition between October 30, 1980 and January 14, 1987. It would unduly prolong this decision to repeat the medical evidence set out in the "summary of the evidence" portion of this decision. In sum, there is no persuasive medical evidence of record to establish the requisite change of condition and, therefore, it is unnecessary to address the causal connection question set out at the beginning of this decision. It is also unnecessary to reach the nature and extent of disability issue, which includes the question of whether the odd-lot doctrine applies in this proceeding. Given the evidence of record, it is also concluded that claimant should pay all the costs of this proceeding. The change of condition issue is not a close one. In effect, claimant in this proceeding is merely collaterally attacking to the prior award of 35 percent, or asking this hearing deputy to exercise appellate jurisdiction to modify or reverse the prior award of 35 percent industrial disability. The applicable statutes do not authorize this deputy, given the record in this case, to award CROSSON V. FORMAN FORD AND COMPANY Page 8 more permanency benefits than the 175 weeks previously awarded as a physical change of condition has not been shown. FINDINGS OF FACT 1. Claimant injured his back on April 26, 1977 while working for Forman Ford and Company. 2. Claimant had back surgery in September 1977 performed by Dr. Bakody. 3. Claimant had another back surgery in December 1978 performed by Dr. Bakody. 4. Claimant was not physically able to do glazier work on October 30, 1980. 5. Claimant was not physically able to do glazier work on January 14, 1987. 6. On October 30, 1980, claimant was experiencing pain because of his low back condition. 7. on January 14, 1987, claimant was experiencing pain because of his low back condition. 8. On October 30, 1980, claimant had considerable difficulty engaging in any physical activity because of the condition of his back. 9. On January 14, 1987, claimant had considerable difficulty engaging in any physical activity because of the condition of his back. 10. Claimant's physical condition was the same on October 30, 1980 as compared with January 14, 1987. CONCLUSION OF LAW Claimant failed to establish the requisite change of condition by a preponderance of the evidence. ORDER IT IS THEREFORE ORDERED: That claimant take nothing from this proceeding. That claimant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. Signed and filed this 26th day of February, 1987. CROSSON V. FORMAN FORD AND COMPANY Page 9 T. J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harold Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. Dennis Hanssen Mr. E. J. Kelly Attorneys at Law 1040 Fifth Ave Des Moines, Iowa 50314 2905 File 2-26-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER LANE L. CROSSON, Claimant, File No. 470570 VS. R E V I E W - FORMAN FORD AND COMPANY, R E O P E N I N G Employer, D E C I S I O N and IOWA NATIONAL MUTUAL INSURANCE COMPANY and IOWA INSURANCE GUARANTY ASSOCIATION, Insurance Carrier, Defendants. 2905 Held in review-reopening that claimant failed to show change of condition by a preponderance of the evidence. Claimant injured his back on April 26, 1977. A hearing was held on October 30, 1980 and a determination of 35 percent industrial disability was made by the hearing deputy. A hearing on claimant's review-reopening petition was held on January 14, 1987 and it was determined that claimant failed to establish a physical change of condition. Claimant's only theory at hearing on January 14, 1987 was a physical change of condition.