BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY W. GRIFFIN, File No. 603461 Claimant, R E V I E W - vs. R E O P E N I N G EATON CORPORATION, D E C I S I O N Employer, F I L E D Self-Insured, Defendant. APR 20 1988 IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding in review-reopening brought by the claimant, Terry W. Griffin, against his self-insured employer, Eaton Corporation, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on February 19, 1979. This matter came on for hearing before the undersigned deputy industrial commissioner at Storm Lake, Iowa on November 10, 1987. A first report of injury was received on July 17, 1979 as was a memorandum of agreement. At hearing, the parties stipulated that claimant has been paid 100 weeks of permanent partial disability. The parties stipulated that claimant has received all temporary total or healing period disability benefits to which claimant is entitled. The record in this proceeding consists of the testimony of claimant, of Brenda Rae Griffin, of Ron Sanow and of Linda Maurer, R.N., as well as of claimant's exhibits A through Y and defendant's exhibits 1, 2 and 3. All objections to exhibits are overruled. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimant's rate of weekly compensation is $134.38; that claimant's medical expenses reflect fair and reasonable charges for reasonable and necessary medical treatment; and, that a causal relationship exists between claimant's injury and a permanent partially disabling condition. The issues remaining for resolution are: Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement, including the related question of whether claimant is an odd-lot worker under the Guyton doctrine and the question of the commencement date of any permanent partial disability due claimant; and, Whether claimant is entitled to payment of medical costs under section 85.27. As regards the latter issue, claimant requests that the employer be ordered to pay for myelogram under the direction of Thomas A. Carlstrom, M.D. REVIEW OF THE EVIDENCE Claimant is 30 years old and a high school graduate. He has no other formal training and has had no military service. Claimant worked as a tire changer and mechanic and in constructing steel storage sheds prior to beginning work at Eaton Corporation in August, 1978. Eaton is a manufacturer of hydraulic transmissions. Claimant initially worked as an LD transmission tester. He ran transmissions through a testing machine. Claimant lifted individual transmissions weighing from 25 to 35 pounds each onto the testing machine, approximately 100 per night. Claimant's starting pay at Eaton was approximately $5.60-$5.70 per hour. Claimant was earning $8.50 per hour in 1982 at Eaton. Claimant now earns $5.80 per hour working as a concrete and masonry assistant for his mother's cousin. Subsequent to his Eaton injury, claimant also worked for approximately four months as a temporary route truck driver for United Parcel Service. He earned $9.40 per hour in that position. Claimant reported that the United Parcel delivery job required lifting of not over 60 pounds with much lifting of under 10 pounds. He indicated that he was able to get along, but that the lifting he did do bothered him. Also, subsequent to his injury, claimant worked part-time driving livestock in a sale barn. His left leg easily tired in that work. Claimant worked briefly as a bottle sorter for a soft drink distributing company. Lifting empty cases bothered him some, but not a lot; he earned $3.60 per hour. Claimant has also been a part-time school bus driver, driving one hour to an hour and a half per day. Claimant could handle that position. Claimant has plowed, disced and cultivated on his parents' farm operation since his injury. Claimant works approximately 47-55 hours per week on his masonry construction job. Claimant stated that he is looking for work which is lighter than the masonry construction job, but has been unable to find such. Claimant draws unemployment compensation during the winter. He denied that he has made most of his job applications during that season, however. Claimant was injured on February 19, 1979 while moving parts with a forklift. He jumped off the forklift into an oil spill, caught himself, but injured his back. He was initially seen by A. C. Rice, M.D., who treated the condition as a muscle strain. Claimant reported a light-duty work return on the deburring bench until July 3, 1979 when William Follows, M.D., an orthopaedic surgeon, took him off work. On July 9, 1979, claimant saw Albert D. Blenderman, M.D., for a second opinion. Surgery was subsequently performed on August 27, 1979. Claimant returned to light-duty work on the deburring bench on November 15, 1979 and apparently worked there until a layoff in March or April, 1980. Claimant testified that Dr. Follows assigned him a 10% permanent partial impairment rating which Eaton paid as 10% permanent partial disability. Claimant was called back to Eaton in either August or October, 1980. He reported that, per Dr. Follows, he was unable to bend and could lift only from 35-45 pounds. He worked running an Allan drill on the day shift. Claimant testified that he had a resurgence of symptoms in fall, 1980 with leg numbness and quivering as well as numbness in the groin area. He reported that he bid for his injury date job of smoothing transmissions outside and inside. He received the job in late 1981 or early 1982. He could handle that job without increased difficulty. Claimant subsequently worked as a heavy duty end cover deburrer in 1982 prior to a second layoff. Claimant testified that this job bothered his back as it involved increased bending and heavier lifting. He reported severe low back pain and what felt like a pulled muscle in the right leg. Claimant continued in either the honing job or the deburring job until a July, 1982 Eaton layoff. Claimant has not worked for Eaton since that layoff. Claimant reported that, per Dr. Follows' direction, he saw Keith McLarnan, M.D., on August 2, 1982 and underwent a CT scan on August 9, 1982. Subsequent to interpretation of the CT scan, chymopapain injection was suggested. The Eaton Corporation did not allow the procedure. Claimant indicated that Dr. Follows then increased his permanent partial impairment rating "to 10 percent." Eaton subsequently paid claimant an additional ten percent permanent partial disability. Defendant's objections to hearsay testimony concerning conversations with the personnel manager are sustained. Claimant testified that, in 1983, Eaton was recalling people. Claimant reported that his number [as to seniority] was passed. Claimant reported that, after persons with lower [seniority] numbers were rehired, he contacted Eaton, but continued to be passed over. Claimant attributed the passover to a decision made by the previous personnel manager. Claimant denied that he had ever given up recall privileges at Eaton. Claimant stated that his present employer was aware of his "20 percent disability" and his inability to do heavy lifting when they hired him. Claimant reported that he has had increasing problems with numbness in the groin area in the past year. He reported sharp pain in the back of his right leg. Claimant reported that sweeping, lawn mowing, auto mechanic work and moving concrete produce problems for him. Claimant asserted that sitting produces groin area numbness and testicle pain. Claimant reported that, as a masonry assistant, he wheels and levels cement and must bend over at times. He must be on his hands and knees. He reported that the bending as well as being on his hands and knees creates right leg and groin numbness. Claimant indicated that he lifts by pushing himself up with one hand while lifting with the other. Claimant reported that he can move a 35-pound cement block from a table or can lift up to 50 pounds from table height throughout the day without problems. He opined that he could lift approximately 10 pounds from a bent-over position. Claimant testified that he has had increasing quivering in his legs, particularly the right leg, in the last several years. Claimant can drive approximately 100-150 miles before needing to stop and walk about. Claimant reported difficulty bending over the bathtub to wash his five-year-old child's hair. Claimant apparently has a 20-pound lifting restriction from Dr. Follows as well as restrictions on repetitive bending and stooping. Claimant agreed that he has lifted greater than 20 pounds in order to continue working. Claimant agreed that exhibits 2 and 3 are photos of claimant working at the Eaton plant in July, 1985 removing concrete. He agreed that, in exhibit 2, he is rolling a piece of concrete to a bobcat. Claimant opined that the weight of the concrete would be approximately 45-50 pounds and stated that exhibit 3 was a photo of some of the heaviest work he has done for his present employer. Claimant denied that he had twisted his back when he stepped in a hole in September, 1983 asserting he had twisted his ankle, but not his back at that time. Claimant agreed, however, that he has twisted his back a number of times since his employment with Eaton and stated he assumed he had gone to the chiropractor following such. Claimant reported that he had seen a Dr. Pringle, a chiropractor, the last two or three months for his.upper back, but claimant denied that Dr. Pringle had treated his lower back reporting that Dr. Pringle has refused to touch his low back since his surgery. Claimant agreed that he last saw Dr. Follows in 1982 and that he initially saw J. R. Peterson, D.O., in February, 1985. Claimant reported that he had seen L. F. Frink, M.D., in between treatment with Dr. Follows and Dr. Peterson. Claimant reported that he saw Thomas Carlstrom, M.D., on referral of Dr. Peterson. Dr. Carlstrom apparently suggested a CT scan and myelogram. Claimant had no health insurance and was unable to pay for such. Claimant could not recall whether Dr. Carlstrom had recommended an epidural steroid injection, but reported that he was willing to undergo any testing or surgical procedure that his doctors felt was appropriate. Brenda Rae Griffin, claimant's wife since 1976, substantiated claimant's testimony regarding his life activity restrictions and identified medical costs with Dr. Peterson in evidence as related to claimant's work injury. Ron Sanow, floor supervisor for Eaton Corporation, reported that he had observed claimant working outside the plant in July, 1985. Mr. Sanow reported that claimant was then carrying and rolling cement blocks weighing from 35 to 40 pounds. He reported that claimant performed the job for several days. Linda Maurer, occupational health nurse at Eaton Corporation since November, 1981, reported that, in November, 1982, per Dr. Follows, claimant was restricted to 20 pounds lifting with no repetitive bending or stooping. She testified that, in 1985, claimant's man number was reached for recall, but that no positions were then available within claimant's restrictions. She testified that this was the sole reason claimant was not returned to work. Ms. Maurer reported that, on July 25, 1985, the Eaton Corporation referred claimant to Robert R. Giebink, M.D., who assigned claimant a 20% body as a whole "disability" which she stated that Eaton had already paid in 1983. Maurer reported that she had observed claimant tearing up cement outside the plant on July 22, 1985. She reported that claimant was then lifting "way beyond" Dr. Follows' restrictions and was not using proper body mechanics. She reported that she has observed claimant working at home doing construction, lifting, bending, stooping and picking up chunks of cement which she believed exceeded Dr. Follows' restrictions. She reported having further observed claimant working on an eye clinic job, also lifting beyond 20 pounds. On December 8, 1986, Jeffrey R. Peterson, D.O., noted that, subjectively, claimant continued to have low back discomfort, constant in nature, but sometimes much worse. He stated that, with activity, claimant noticed progressive weakness, numbness and tingling in the right lower extremity, especially that fall after attempting to hunt pheasant. Claimant continued to be unable to lift any weight of more than 40 pounds on a repetitive basis Such lifting caused low back pain which felt like claimant had been beaten with a hammer. He had a sensation of swelling and pain in the right lower extremity with some intermittent left leg discomfort. Claimant continued to have numbness and tingling sensation about the groin and inner thighs, but denied any weakness sensation in the left lower extremity. Claimant was using Motrin on a PRN basis for the pain in the low back and the right lower extremity. When questioned regarding the condition of his back and leg at that point as compared to a year earlier, claimant stated that overall there had been no improvement and, in fact, his activity may have been more limited than before. Claimant stated that he could not get on his hands and knees and trowel cement and that he noticed discomfort when sitting during breaks at work. At those times, he would get severe back pain associated with numbness, tingling and pain in the right lower extremity. Claimant was having occasional electric-like pains down the right lower extremity as well. On physical examination, claimant had increased lordosis in the lumbar region with moderate lumbar paravertebral muscle spasms, right more than left. There was some obvious atrophy of the right hamstrings. Claimant was able to walk equally well on both toes. Claimant was markedly weak on the right heal with early fatigue. Claimant had only minimal restriction of flexion and full extension on range of motion testing of the lumbar spine with right and left lateral flexion limited by five to ten degrees in each direction. Rotational movements in the lumbar spine were limited by approximately 10 degrees both to the right and to the left. The right Achilles reflex was diminished at plus one-fourth dash four with the left plus one negative two slash four. There was no ankle clonus; plantar reflexes were normal. Straight leg raising was positive at 70 degrees on the right; negative to 80 degrees on the left. The diagnoses were of persistent right lower extremity and back discomfort following an L5-S1 laminectomy and probable recurrent herniated disc at L5-S1 on the right as well as persistent neurologic changes in the right lower extremity including sensory changes and motor weakness, especially the right hamstrings. On April 30, 1985, Dr. Peterson had opined that claimant then had a greater limitation of function and activity as well as fewer opportunities for gainful employment than he had had in 1982 when last evaluated for disability. The doctor cited numerous examples of a worsening of claimant's condition, including additional left-sided pain at all times. The doctor stated that claimant reported that his right side still bothered him as before, but he continued to have more problems in the left back. The doctor reported that, two years earlier , claimant was able to bale hay and scoop manure for extended periods of time, but currently  was unable to scoop manure, except for very short periods. Claimant was unable to sit for more than a few minutes as he had increased low back pain with prolonged sitting and he was no longer able to lift up to 40 pounds for more than a very short time without increased low back pain. Dr. Peterson then opined that, if claimant had had a 20% permanent partial "disability" in 1985, he should be reevaluated as, in the doctor's estimation, he had a 10-20 percent greater impairment in 1985 than he had had previously. In his deposition taken December 9, 1986, Dr. Peterson stated that he had not seen any records of left-sided pain or discomfort prior to his examination of claimant in February, 1985. The doctor again opined that claimant's subjective symptoms regarding back pain, left leg pain and right leg pain were getting worse in 1985 as compared to two or three years earlier, that is, at the time of Dr. Giebink's examination in 1983. The doctor related claimant's continuing subjective complaints and findings to his 1979 injury. He felt that claimant had developed new or additional symptoms which were an aggravation of his underlying problem. Dr. Peterson opined that he had referred claimant to Dr. Carlstrom as he felt claimant deserved further work-up and neurosurgical opinion for his low back problems. The doctor stated that claimant had had a CT scan which suggested recurrent ruptured disc and was having a difficult time finding satisfactory employment as well as continuing to have problems. He stated that, if something further could be done to better his situation, it should be pursued. Dr. Peterson characterized Dr. Carlstrom's letter as reporting that claimant needed a CT scan and a myelogram to define further definitive treatment. Dr. Peterson reported that there were some very minor differences between his findings on examination on December 8, 1986 and the findings of Dr. Giebink in September, 1983. He reported that claimant's range of motion testing was a little better when examined in 1986 than when examined by Dr. Giebink. Rotational movements were a little worse "at this time" than in June, 1985. The doctor did not recall any significant differences of opinion in sensory testing. Dr. Peterson opined that, if claimant did have a recurrent ruptured disc on the right at L5-S1, definite benefit would likely result from laminectomy or discectomy. On July 18, 1986, Dr. Follows opined that claimant had a permanent "disability" of 10%. He then opined that claimant should avoid heavy lifting as well as repeated lifting, bending or stooping. On November 29, 1982, Dr. Follows restricted claimant from lifting more than 20 pounds and from repetitive bending or stooping. On July 19, 1982, Dr. McLarnan recommended a CT scan at the L5 to S3 nerve root distribution and reported that there was some evidence at that time of an S2 and S3 sensory component. He was unable to explain why claimant's entire leg felt swollen or distended. On sensory exam, sharp sensation was diminished on the S2 distribution of the right posterior thigh. The S3 distribution on the buttocks was not diminished which was in the same dermatone as the penis. Earlier, Dr. McLarnan had noted that, originally in association with the swollen leg feeling, claimant had a sensation of numbness and tingling in the penis. At the time of examination, the leg or penile discomfort could be independent of each other. Claimant was having no difficulty with starting and stopping of the urinary stream and was having no problems with erections or ejaculations. On August 17, 1982, Dr. McLarnan opined that a CT scan performed August 11, 1982 suggested some residual disc material on the right side at L5-S1. He reported that views of the foraminal outlets taken because of claimant's S2 complaint revealed no encroachment in those regions. On August 30, 1982, Kenneth B. Heithoff, M.D., a board-certified radiologist, interpreted the August 11, 1982 CT scan as showing no evidence of significant epidural fibrosis following previous laminectomy at L5-S1 on the right side, but as having evidence of a mass effect anterior to the S1 nerve root on the right. He reported swelling of the S1 nerve root below this mass effect. Dr. Heithoff opined that the most likely diagnosis was of recurrent herniated disc at L5-S1 on the right. He suggested a Metrizamide enhanced CT scan which would identify the position of the S1 nerve root with certainty. On November 18, 1981, Dr. Follows had reported that, two or three times over the last year, claimant had gotten numbness into the left leg and groin, including his penis area, usually when sitting in a peculiar position like on a toilet stool or sitting cross-legged. On September 9, 1983, Dr. Follows opined that claimant had a "20 percent permanent disability" on the basis of his back problem. He reported that such represented a reaggravation and a continuation of his previous injury and not a new, entirely different injury. Dr. Giebink, an orthopaedic surgeon, examined claimant on June 25, 1985. He reported present complaints of pain in the lower back, cramping pain in the legs, and intermittent numbness involving both legs on the posterial lateral aspect of the calf with muscles seeming to quiver a lot. Claimant reported that it did not seem to make much difference whether he sat, stood, walked or worked. Walking and driving produced the most trouble; coughing and sneezing sometimes aggravated the condition. Claimant reported that his back felt pretty stiff in the morning, but limbered up as he got going. He reported getting through the day okay, but aching a lot in the evening. Claimant slept on a waterbed and reported that he slept "pretty good." On physical examination, motion of the lower back was mildly restricted with claimant able to reach about three inches from the floor with his knees extended. Claimant could forward flex to about 75 to 80 degrees; extension and side bending were restricted about five degrees with pain on bending to the right side. Rotation was also mildly restricted. The right thigh, five inches above the patella, measured one-half inch smaller in circumference than the left thigh. Right and left calf each measured about 17 inches in circumference. Patellar reflexes were brisk and equal. The right Achilles reflex was reported as present, but reduced. The right Achilles reflex being about one plus with the left Achilles reflex about two plus. Testing for strength on the left foot was normal with the right foot showing slight but definite weakness of the dorsiflexor muscles of the right foot, particularly the peroneal muscle group. Claimant had diminished sensation to pin prick over the lateral side of his right heel and foot, posterial lateral aspect of his right calf and the lateral aspect of his right thigh. Similar, but not nearly as marked findings were present on the left side. Straight leg raising was free on the left side, but limited to about 80 degrees with pain and pulling on the back on the right side. Lumbar lordosis was present. Dr. Giebink reported that claimant would not be able to return to heavy work and would always be restricted in lifting, stooping, shoveling and like activities. He reported the usual lifting limitation as about 25-30 pounds with occasional lifting of 50-60 pounds if using the back straight and if using the knees. The doctor opined that claimant could not return to the work he was doing at the time of his injury as that involved considerable heavy work. He reported he could return to work in a lighter capacity. He felt that claimant had a 20% impairment of function of his whole body as the result of the injury and subsequent disc surgery. On October 8, 1987, Dr. Carlstrom reported that he had seen claimant in his office on October 1, 1987. He reported that claimant had radicular symptoms on the right, relating principally to the S-1 nerve root and that it was conceivable that he may have a lesion in the low back which could be fixed with laminectomy. He felt claimant needed a myelogram for decent definition of the lesion. Dr. Carlstrom did not believe that a CT scan would be helpful. Dr. Carlstrom reported claimant's alternative to surgical intervention was simply "to live with it." He reported claimant had been doing fairly well for the last year or two and probably could do so into the future. Dr. Carlstrom opined that claimant's symptoms would be considerably reduced with activity restriction, particularly restrictions on heavy exertion and heavy lifting. The doctor thought that surgery was a reasonable approach and that claimant's symptoms may improve, but that more information was needed before pursuing that further. Dr. Carlstrom reported that he had "mentioned" epidural steroid injection to claimant. On January 22, 1986, Dr. Carlstrom felt that, while claimant could have recurrent radiculopathy and perhaps might benefit from a reoperation, he mostly likely had myofascial symptoms which should be treated conservatively. At various times, Dr. Peterson, Dr. McLarnan and Dr. Carlstrom recommended that claimant lose weight as a means of potentially improving his physical condition. Claimant's exhibit X is an unsigned agreement bearing a space for claimant's signature as well as that of S. E. Shepard and Linda Maurer stating that claimant agrees to give up recall privileges at Eaton Corporation's Spencer, Iowa plant effective on the date of the signed agreement. The agreement initially stated that, upon payment of 10% permanent partial disability settlement, claimant would release Eaton Corporation from all future liability regarding injuries sustained while employed at Eaton from August 21, 1978 through November 29, 1982. Claimant's exhibit Q is a typed listing of job applications made since 1983. Forty-one entries from 1983 through September, 1987 are listed. A number of entries represent reapplications with the same potential employer. Claimant's exhibit S is a series of charges with R. K. Peterson, D.O. It was agreed at hearing that a charge of $17.00 for an office call of February 27, 1987 was not related to claimant's injury. An office call of April 16, 1987 with a charge of $17.00 relates a first diagnosis of baker's cyst, right knee and a second diagnosis of right lumbar radiculopathy. Four charges for blood pressure and weight check at $5.00 each are also listed as are two telephone consultations for $3.00 each for pain medication prescriptions. Office calls of August 21, 1986, September 8, 1986 and September 21, 1987 relate to right sciatica, or probable recurrent ruptured disc at L5-S1 on the right. Each such office call carries a charge of $17.00. Claimant's exhibit T is a statement of Dr. Carlstrom for a neurological exam of January 16, 1986 for $65.00 and was apparently paid on March 10, 1986. An office call of October 1, 1987 with a charge of $40.00 remains outstanding. APPLICABLE LAW AND ANALYSIS A memorandum of agreement settles the question of employment relationship and the question of whether the injury arose out of and in the course of the employment. Claimant is not required to prove a change of condition after the filing of the memorandum of agreement, but is required to prove that increased disability for which no compensation has been paid was proximately caused by the injury. Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 675 (Iowa 1987). The claimant has the burden of proving by a preponderance of the evidence that the injury of February 19, 1979 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). No competent physician has opined that claimant's current condition does not relate back to his original injury. Indeed, Dr. Giebink and Dr. Peterson both have related claimant's more recent condition to the original injury. Claimant has testified that he has twisted his back on occasion since his original injury. No evidence of new back incident was present, however. One, therefore, assumes that whatever 'twisting' incidents occurred were simply symptomatic aggravations of claimant's underlying condition and were not new injuries. The medical evidence establishes that increased disability claimed is proximately caused by the original injury. We therefore consider the benefit entitlement question. Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 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. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later 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 disability 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. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden v. Big Ben Coal Co., supra. Claimant is a high school graduate. He has no other training. Claimant is 30 years old and his latest impairment rating suggests a 20% permanent partial impairment. Various doctors have issued various restrictions. Generally, however, claimant is restricted to lifting no more than 20 to 30 pounds and has restrictions on repetitive bending, stooping, lifting, shoveling and like activities. Claimant's prior work experience has all been in manual labor. He testified to a variety of jobs which he has held since his injury, some of which were apparently beyond his limitations. Claimant's employer has not recalled him. The employer stated they did not recall claimant because they did not have work within claimant's restrictions. Dr. Giebink has indicated claimant could not go back to his job at the time of injury, but could do lighter work. Claimant testified that, subsequent to his injury, he had been able to handle the transmission smoothing job he had been doing at the time of his original injury. The record does not suggest that the defendant has made a good faith effort to return claimant to work. Claimant is currently working for a relative who tolerates claimant's problems. All parties are in agreement that claimant, on occasion, has to work beyond his restrictions in that job. The defendant has made much ado concerning such. We do not believe, however, that Iowa's workers' compensation law requires an employee, after an injury, to take only those positions within medically imposed restrictions if his alternative to going outside of the restrictions is to secure no livelihood for himself and for his dependents. Claimant has sought work other than that in which he is now employed. The record does not establish that those efforts are not genuine and diligent. Claimant was earning $8.50 per hour at Eaton in 1982 and is now earning $5.80 per hour. While an actual reduction in earnings is not, per se, an indication of industrial disability, it is a factor to be considered with other factors in assessing industrial disability. Claimant appears well motivated and appears to have made serious efforts to mitigate the economic effects of his work related injury. Claimant, unfortunately, has only limited experience and training. He currently, as regards such, is best suited for the heavy manual labor which he should no longer perform. Claimant is a younger worker, however. He appeared to be of at least average intelligence and was well spoken. We suspect he would be a good candidate for vocational rehabilitation into lighter duty work, were that opportunity available to him. We note also that the employer made no attempt to assist claimant with vocational rehabilitation. All factors suggest that claimant has a loss of earning capacity of 45%. The defendant, pursuant to section 85.34(4), is entitled to credit for the 20% permanent partial disability already paid claimant. While claimant has raised the question of whether he is an odd-lot worker under the Guyton doctrine, the record does not show claimant is an odd-lot worker. As noted above, claimant is currently working, albeit outside of his restrictions. Claimant's restrictions are not so profound as to preclude him from obtaining employment in any well-known branch of the labor market. Nor can it reasonably be said that claimant is so totally disabled that the only services claimant can perform are so limited in quality, dependability or quantity as to be lacking a reasonably stable market. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). As regards the commencement date issue, the claim activity report of October 7, 1983 indicates that claimant's last payment of permanent partial disability was on October 5, 1983. Such apparently related to additional permanent partial disability payments voluntarily made following Dr. Follows' reassessment of permanent partial "disability" and his assignation of an additional 10% impairment. The record does not suggest that determination of industrial disability could not have been made at that time. Hence, additional permanent partial disability benefit payments should commence on October 6, 1983. We consider the medical care and medical expense payment issues. Section 85.27 requires the employer to furnish reasonable surgical, medical, osteopathic, chiropractic and other forms of medical care and supplies for injuries compensable under the Iowa Workers' Compensation Act. The employer has the right to choose the care. Treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. The employee may petition the commissioner for alternate care where, after communicating dissatisfaction with the care to the employer in writing, the employee and the employer cannot agree on alternate care reasonably suited to treat the injury. The evidence establishes that claimant's treatments with Dr. Peterson, at least in part, related to treatment of his original injury. Costs in evidence with Dr. Peterson are contained on Exhibit S. A number of charges on Exhibit S do not appear to be causally related to the injury, however. Charges for blood pressure and weight check are not sufficiently related to claimant's work situation. Office calls of August 21, 1986, September 8, 1986 and September 21, 1987 relating to right sciatica do relate to the work injury. The defendant is liable for a charge of $17.00 as regards each such call. An office call of April 16, 1987 with a charge of $17.00 carries both a diagnosis regarding a cyst on claimant's right knee and a diagnosis of right lumbar radiculopathy. The defendant is ordered to pay half of such cost, or a charge of $8.50. Dr. Peterson referred claimant to Dr. Carlstrom for an evaluation regarding his work-related back condition. Hence, charges with Dr. Carlstrom are also considered compensable. The defendant is ordered to reimburse claimant for the costs of a neurological exam of January 16, 1986 in the amount of $65.00 and to pay claimant costs of an office call of October 1, 1987 with a charge of $40.00 outstanding. We note that the employer did not apparently direct claimant to see Dr. Peterson or Dr. Carlstrom nor did the employer acquiesce in claimant seeking treatment from those physicians. The employer has consistently denied any further liability to claimant on account of his injury, however. Having taken the position that the employer has no further liability to claimant as well as the position that claimant's current conditions are not compensable as related to his 1979 work injury, the defendant has forfeited the right to choose claimant's medical care under section 85.27. See Barnhart v. MAQ, Incorporated, I Iowa Industrial Commissioner Report, 16 (1981). Claimant seeks alternate care by way of administration of myelographic studies by or under the direction of Dr. Carlstrom. On October 8, 1987, Dr. Carlstrom opined that a myelogram would give "more decent definition of the lesion" that he felt claimant conceivably had in the low back, which lesion potentially could be "fixed with laminectomy." The doctor indicated that more information was needed before further pursuing a surgical approach to claimant's problem. The defendant apparently last had claimant examined by a physician of their choice, namely, Dr. Giebink, in June, 1985. The defendant had taken no further steps to assist claimant in amelioration of his condition. Claimant has seen Dr. Carlstrom at the direction of Dr. Peterson, who has been claimant's treating physician in the interim. Dr. Carlstrom's October 8, 1987 report suggests that myelographic studies are needful in order to better evaluate claimant's continuing symptomology and arrive at appropriate diagnosis and treatment. Claimant has a satisfactory and established relationship with Dr. Carlstrom. Alternate care by way of myelographic examination by or under the direction of Dr. Carlstrom is warranted and granted. Further care as Dr. Carlstrom directs should also be construed as reasonable and necessary care compensable under the Workers' Compensation Act. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant sustained an injury in the course of his employment and arising out of his employment on February 19, 1979 when he jumped off a fork lift into an oil spill, caught himself and injured his back. Claimant has proximally a 20% permanent partial impairment as a result of his 1979 injury. Claimant has restrictions of 20 to 30 pounds on lifting as well as restrictions on repetitive bending, stooping, lifting, shoveling and like activities. Claimant is a high school graduate. Claimant has had no military experience and has no post high school training. Claimant's work experience is limited to heavy manual labor. Claimant is 30 years old. Claimant's employer did not recall claimant to work after a layoff in July, 1982. Claimant has sought a variety of jobs, but has been unable to find one within his restrictions. Claimant is currently working as a concrete and masonry assistant for his mother's cousin. Claimant's current employer is aware of and tolerates claimant's restrictions, but on occasion, claimant must perform activity beyond the restrictions imposed upon him. Claimant is well motivated. Claimant appears to be of average intelligence and would likely be a good candidate for vocational rehabilitation, if such were available. Claimant's employer has not attempted to assist claimant in vocational rehabilitation. Claimant is not incapable of obtaining employment in any well-known branch of the labor market. Services which claimant can perform for potential employers are not so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Claimant is not an odd-lot worker under Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). The defendant last paid claimant permanent partial disability payments on October 5, 1983. A finding as to claimant's extent of industrial disability could have been made at that time. Dr. Peterson referred claimant to Dr. Carlstrom. The defendant has denied liability for claimant's current medical condition and has not provided either medical care or medical examination since June, 1985. Costs with Dr. Carlstrom in the amount of $40.00 and in the amount of $65.00 relate to claimant's work injury. Costs of office visits with Dr. Peterson of August 21, 1986, September 8, 1986 and September 21, 1987 as well as part of April 16, 1987 relate to claimant's work injury condition. Myelographic studies are appropriate to assess claimant's low back condition and determine whether and what other treatment is appropriate. Claimant is comfortable with treatment with Dr. Carlstrom. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to additional permanent partial disability on account of his February 19, 1979 injury of 25%. Claimant is entitled to payment of medical costs with Dr. Peterson and with Dr. Carlstrom as set forth in the above applicable law and analysis. Claimant is entitled to alternate care by way of myelographic study by or under the direction of Dr. Carlstrom as well as other care as Dr. Carlstrom directs. ORDER THEREFORE, IT IS ORDERED: Defendant pay claimant an additional one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of one hundred thirty-four and 38/100 dollars ($134.38) with those benefits to commence on October 6, 1983. Defendant provide claimant with alternate care by way of myelographic study by Dr. Carlstrom or under the direction of Dr. Carlstrom as well as other care as Dr. Carlstrom directs. Defendant pay claimant medical costs with Dr. Peterson related to claimant's compensable injury as outlined in the above applicable law and analysis. Defendant pay claimant medical costs with Dr Carlstrom related to claimant's compensable injury as related in the above applicable law and analysis. Defendant pay accrued amounts in a lump sum. Defendant pay interest pursuant to Iowa Code section 85.30. Defendant pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendant file Claim Activity Reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 20th day of April, 1988. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David A. Scott Attorney at Law 407 Grand Avenue P.O. Box 3046 Spencer, Iowa 51301 Mr. Richard J. Barry Attorney at Law Professional Building Spencer, Iowa 51301 1803, 2501, 2700, 4100 Filed April 20, 1988 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY W. GRIFFIN, Claimant, File No. 603461 vs. R E V I E W - EATON CORPORATION, R E 0 P E N I N G Employer, D E C I S I 0 N Self-Insured, Defendant. 1803, 4100 An additional 25% permanent partial disability was awarded a 30-year-old male claimant with 10% to 20% permanent partial impairment, no post high school training and work experience as a manual laborer only. Defendant had not recalled claimant following his work injury. Claimant was not an odd-lot worker. 2501, 2700 Alternate medical care was allowed where the defendant had denied further liability to claimant on account of the work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBIN HOOTMAN, Claimant, File Nos. 604512 652333 vs. 700301 WEYERHAEUSER COMPANY, R E M A N D Employer, D E C I S I 0 N Self-Insured, and F I L E D SECOND INJURY OF IOWA, JUN 7 1989 Defendants. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding on remand that comes as a result of the following history. An arbitration and review-reopening decision dated December 31, 1984 concluded that claimant had injured both her wrists on October 13, 1980; that claimant had five percent impairment of each upper extremity; that claimant did not injure her wrists in November 1981 or January 1982; and that claimant was not entitled to any benefits from the second injury fund. Claimant appealed and the employer cross-appealed that decision to the commissioner, and in an appeal decision dated October 4, 1985 a deputy appointed by the commissioner concluded that claimant had failed to establish entitlement to second injury fund benefits. Claimant appealed the appeal decision to the district court in Linn County. In a ruling dated March 6,1986, the district court held that the injuries to the right and left hand occurred on separate occasions. The district court reversed the appeal decision as to the second injury fund and remanded the case to the industrial commissioner to determine an industrial disability percentage for the claimant's injuries. The second injury fund appealed the district court decision. The Iowa court of appeals in a decision dated March 31, 1987 affirmed the district court. The court of appeals' decision is an unpublished opinion as reported at 409 N.W.2d 715, 716.. The commissioner retained jurisdiction of the matter at the appeal level. The record on remand consists of the transcript of the hearing; claimant's exhibits 1 through 13 and 15 through 19; and defendants' exhibits A through D. ISSUE The issue on remand is the liability of the second injury fund. In order to determine the liability, it is necessary to determine the extent of claimant's industrial disability. REVIEW OF THE EVIDENCE The discussion of the review of evidence will be limited to facts relevant to claimant's industrial disability and determination of the second injury fund liability. Those findings of fact that were made by the courts on judicial review will be accepted as correct for purposes of this remand decision. The findings of fact of the prior appeal decision that were not reversed on judicial review and that are not inconsistent with findings herein are also accepted as correct. Claimant is married and was 34 years old at the time of the hearing. She has three children and has a GED with additional training as a key punch operator. She has a license to drive a tractor-trailer combination with six months' experience as a driver. In addition to work as a key punch operator and truck driver, she has worked as an assembler. Claimant testified that since November 1981 she has made and sold toys and dolls for children. She estimated she made about $15 a week on the sales. She also testified that she had applied for jobs as clerks in stores, in factories, and as a receptionist. She stated she wanted to work. Based upon the court of appeals' decision, claimant has an injury to the right hand and wrist as a result of a work injury on October 13, 1980 and an injury to her left hand as a result of a work injury in November 1981. Based upon the arbitration and review-reopening decision, claimant has permanent impairments of five percent of each upper extremity which translate to six percent of the body as a whole. Claimant said that when she first returned to work, she was not under restriction. When swelling developed limitations were placed. There was no work with defendant employer within her restrictions. Frederick Reed, an employee of defendant employer who has known claimant since she started to work for the company, testified that claimant was able to perform work before her injury in October 1980, but that she was "[n]ot too good" at her job after surgery in January of 1982. He thought claimant was a good worker who wanted to work. Claimant's spouse indicated that claimant goes out each week to look for work and that she has been unsuccessful in obtaining any. Loy Gibbs, production superintendent for defendant employer, believed claimant last worked July 15, 1982 and he could not account for notations on August 2 and 3. He stated that claimant remains an employee and has bumping rights when she returns to work, but he thought that jobs requiring lifting of less than 20 pounds would be filled by persons with more seniority than claimant. He thought claimant might be able to bump to a feeder or operator on a die cutter. Steven R. Jarrett, M.D., saw claimant on July 15, 1981 at which time she had pain on both the right and the left. The doctor wrote that claimant's pain would necessitate work restrictions. He proposed investigation of metabolic and rheumatological causes and electrodiagnostic studies which were normal. There was no evidence of metabolic causes for peripheral neuropathy or a systemic rheumatological process. Dr. Jarrett was unable to provide an impairment rating based solely on claimant's pain. Claimant was seen by William R. Blair, M.D. He seemingly reviewed claimant's restrictions on November 16, 1982 and determined the restrictions should remain in force until she became asymptomatic. On March 9, 1983, claimant was sent a letter from the employer based on a letter from Dr. Blair reversing her dismissal and telling her that she could return to full duty as soon as her light duty restriction was lifted. John R. Huey, M.D., orthopedic surgeon, first saw claimant on November 29, 1982. He had the impression that claimant was unable to do the work assigned by defendant employer, but that she could do other work within the plant. Dr. Huey's note of December 10, 1982 suggests light work under 15 pounds and not more than 20 repetitive motions a minute. Leland G. Hawkins, M.D., board certified orthopedic surgeon, first saw claimant in 1979. He examined claimant in January 1983. At the time of this examination claimant had no restriction of motion, but she did report pain with excessive activity. APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injuries of October 1980 and November 1981 are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. Agency interpretation of Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1979) has held that assessment of industrial disability to the employer at the time of the second injury is appropriate only when the second injury extends to the body as a whole as in the Mich Coal case. That interpretation has recently been affirmed. See Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). If the second injury is limited to a scheduled member then the employer's liability is limited to the schedule. Simbro v. Delany's Sportswear, 332 N.W.2d 886 (Iowa 1983). Accordingly, the second injury fund is charged with the excess industrial disability over the combined scheduled losses of the first and second injury. Second Injury Fund, 436 N.W.2d 355. Iowa Code section 85.36 provides in relevant parts: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: .... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. ANALYSIS The first question to be addressed is the extent of claimant's industrial disability. Claimant is 34 years of age and has a GED. Her work experience has been manual labor in which she used her hands to perform work. She has a five percent impairment of each of the upper extremities. Although Dr. Hawkins indicates that she has no restriction in her range of motion, Dr. Huey has placed restrictions on her of 15 pounds and not more than 20 repetitive motions a minute. Claimant experienced pain and swelling in her wrists when she attempted to perform tasks after her injuries. There does not appear to be any work available within claimant's restrictions at the defendant employer. Claimant has attempted to find other work and is motivated to do so. She.has not attempted retraining, but has the intellectual capacity to seek further formal training. Her physical impairment is six percent of the body as a whole. She is at an age that further education or retraining would limit her loss of earnings capacity. When all things are considered, claimant has an industrial disability of 40 percent. The next question to be decided is the second injury fund liability. The second injury fund is liable for the excess industrial disability over the combined scheduled losses of the first and second injury. Claimant's industrial disability is 40 percent or 200 weeks. The scheduled loss of the first injury is five percent of the right upper extremity or 12 1/2 weeks. The scheduled loss of the second injury is five percent of the left upper extremity or 12 1/2 weeks. The second injury fund is liable for 175 weeks of compensation. In order to determine the monetary liability of the second injury fund it is necessary to determine claimant's rate of compensation. Claimant's rate of compensation at the time of the first injury can be taken from the arbitration and review-reopening decision and the facts given. The rate of compensation for claimant's industrial disability and her second injury has not been previously determined. Determination of the rate is complicated by the facts that the parties did not stipulate to the rate; the settlement agreement between the employer and claimant has not been submitted for approval as directed in the appeal decision; and evidence on the rate at the time of the second injury is somewhat incomplete. The failure of the parties to file the settlement agreement has obviously caused problems in determining claimant's proper rate. Claimant's hourly wage applicable in November 1981 was $7.67. It appears from claimant's exhibit 10 that claimant worked 13 weeks prior to her November 1981 injury. It also appears from claimant's exhibit 10 that she usually worked 40 hours per week in 1979 and 1980. There is nothing in the record to indicate that she did not work 40 hours per week in the 13 weeks prior to her November 1981 injury. She apparently took a vacation the week of August 3, 1981. There was a holiday taken on September 7, 1981. There are some other notations on the absentee calendar for 1981 found in claimant's exhibit 10. However, it is impossible to tell from the information given how many hours more or less than the usual 40 hours claimant would have worked. While the record is not clear, it is reasonable to conclude that claimant worked 40 hours per week for 13 weeks prior to her injury at an hourly rate of $7.67. Claimant's gross weekly wages were $306.80. Claimant's rate for her industrial disability is $196.24. FINDINGS OF FACT 1. Claimant was 34 years of age at the time of the arbitration and review-reopening hearing and had a GED. 2. Claimant is married and has three dependent children. 3. As a result of a work injury on October 13, 1980, claimant suffered a five percent impairment of the right upper extremity. 4. As a result of a work injury in November 1981, claimant suffered a five percent impairment of the left upper extremity. 5. Claimant had a six percent impairment of the body as a whole as a result of the October 1980 and November 1981 injuries. 6. Claimant is restricted to lifting not more than 15 pounds and to not more than 20 repetitive motions a minute. 7. Claimant's work experience is manual labor. 8. Claimant is unable to do the same job she was doing when she was injured. 9. Claimant has the intellectual capacity to seek further education or retraining. 10. Claimant is motivated to be gainfully employed. 11. Claimant reached maximum recovery on February 23, 1982. 12. Claimant's rate of compensation at the time of the November 1981 injury is $196.24. CONCLUSIONS OF LAW Claimant has established she has an industrial disability of 40 percent as a result of the October 1980 and November 1981 work injuries. Claimant has established that she is entitled to benefits from the second injury fund. ORDER THEREFORE., it is ordered: That the second injury fund pay claimant permanent partial disability benefits for one hundred seventy-five (175) weeks [two hundred (200) weeks minus the sum of twelve point five (12.5) weeks and twelve point five (12.5) weeks] at the weekly rate of one hundred ninety-six and 24/100 dollars ($196.24). That the second injury fund payment of benefits commence on February 24, 1982. That credit be given for any benefits previously paid by the second injury fund. That accrued payments are to be paid in a lump sum. That the second injury fund pay all costs of this remand decision; the arbitration and review reopening; and the appeal. Signed and filed this 7th day of June, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies to: Mr. Benjamin W. Blackstock Attorney at Law 201 Cedar Plaza 385 Collins Rd NE Cedar Rapids, IA 52402 Mr. James E. Shipman Attorney at Law 1200 MNB Bldg Cedar Rapids, IA 52401 Mr. John R. Scott Assistant Attorney General Tort Claims Division Hoover Building Des Moines, IA 50319 3202 Filed June 7, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBIN HOOTMAN, Claimant, Files Nos. 604512 652333 vs. 700301 WEYERHAEUSER COMPANY, R E M A N D Employer, D E C I S I 0 N Self-Insured, and SECOND INJURY OF IOWA, Defendants. 3202 This remand decision was based in part on prior findings by courts on judicial review and the prior review-reopening arbitration and appeal decisions. The courts on review determined that claimant had suffered two injuries, one to each of the upper extremities. The prior agency decisions determined that claimant had five percent impairment to each of the upper extremities which translated to six percent impairment to body of the whole. In the remand decision claimant's industrial disability was determined to be 40 percent. The liability of the second injury fund was 175 weeks. i.e. 40 percent of 500 weeks minus the sum of 5 percent of 250 weeks and 5 percent of 250 weeks or [(.40 x 500) - (.05 x 250 + .05 x 250)]. The remand decision also determined the rate at the time of the second injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PATRICIA A. LARSON, : : Claimant, : : File No. 605093 vs. : : ST. JOSEPH MERCY HOSPITAL, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Patricia A. Larson, claimant, against St. Joseph Mercy Hospital, employer and self-insured defendant, for benefits as a result of an injury that occurred on September 8, 1979. A hearing was held in Davenport, Iowa, on August 2, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by David H. Sivright, Jr., and defendant was represented by James L. Pillars. The record consists of the testimony of Patricia A. Larson, claimant, claimant's Exhibits 1, 2 and 3, and defendant's Exhibits A through J minus F. stipulations 1. The parties stipulated to the following matters: 2. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. 3. That claimant sustained an injury on September 8, 1979 which arose out of and in the course of employment with employer. 4. That the injury was the cause of both temporary and permanent disability. 5. That the type of permanent disability if the injury is found to be a cause of permanent disability is industrial disability to the body as a whole. 6. That the commencement date for permanent disability benefits in the event such benefits are awarded is April 11, 1985. 7. That the rate of compensation in the event of an award of benefits is $118.94 per week. 8. That claimant's entitlement to medical expenses have all been or will be paid by defendant. Page 2 9. That defendant seeks no credit for employee nonoccupational group plan benefits paid to claimant prior to hearing. 10. That defendant paid claimant 25 weeks of permanent disability benefits at the rate of $118.94 per week prior to hearing. 11. That there are no bifurcated claims. 12. That causal connection and entitlement to temporary disability benefits are not disputed matters in this case at this time. preliminary matter The industrial commissioner's Form 2A, Supplemental Claim Activity Report, shows that claimant was paid temporary disability benefits for three different periods of time prior to hearing: (1) September 9, 1979 to January 25, 1980, (2) May 16, 1980 to June 8, 1980, and (3) September 17, 1982 to October 11, 1984. issues The parties submitted one issue for determination: Whether claimant is entitled to permanent disability benefits and, if so, the extent of benefits to which she is entitled. findings of fact Claimant, born on January 30, 1935, was 44 years old at the time of the injury and 55 years old at the time of the hearing. Claimant's disability at these ages is greater than it would be for a younger or older employee. McCoy v. Donaldson Company, Inc., file numbers 782670 and 805200 (Appeal Decision April 28, 1989); Walton v. B & H Tank Corp., II Iowa Ind. Comm'r Rep. 426 (Appeal Dec. 1981); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Rep., Iowa Indus. Comm'r 34 (Appeal Dec. 1979). Claimant completed the seventh grade and then quit school. She did not start or complete high school. Claimant received no additional education or training other than being qualified as a nurse's aide. The feasibility of retraining is one of the considerations considered in the determination of industrial disability. Conrad v. Marquette School, Inc., IV Iowa Ind. Comm'r Rep. 74, 89 (1984). There was no evidence of a GED. With a seventh grade education, no GED, and no additional formal education or training, at age 55 claimant is not a good candidate for retraining in a formal academic setting. Her opportunities for retraining would be limited to on-the-job training. These factors tend to increase claimant's industrial disability or loss of earning capacity. Claimant was married at age 18 and started to work at age 22 for employer as a nurse's aide in approximately 1957. She devoted the major portion of her adult working life to employer as a nurse's aide for 25 years until she was involuntarily terminated in 1982. She did learn to be a Page 3 nurse's aide while employed by employer and did obtain a certificate as a nurse's aide during her work for employer. On September 8, 1979, claimant injured her low back and left hip and thigh while lifting a comatose patient with a licensed practical nurse. At that time, she felt pain in her left lower back and down her left hip and thigh. She testified that the pain in her left hip and thigh has been there ever since. She was treated and hospitalized by her personal physician, J. P. Cahill, M.D. He diagnosed a herniated intervertebral disc with diminution of pinprick sensation of the buttock on the left and the left lateral thigh proximately. She was hospitalized from September 14 until September 22, 1979 (Claimant's Exhibit 2, pages 1 through 4). Claimant was later seen by R. L. Kreiter, M.D., an orthopedic surgeon, in Davenport, Iowa, and several physicians at the University of Iowa Hospitals and Clinics. An EMG/NCV test at the University on October 12, 1981 was normal. On the same date, Doctors McAndrews and Lehmann, (full names unknown) at the University concluded: The patient was seen and examined with Dr. Lehmann and we feel that she has a very small herniated disc at L5-S1. We would like to withhold final diagnosis until we are able to review the CAT scan ourselves. On the basis of the information, at the present time, we give the patient a 10% total body impairment rating, but will withhold final rating until we have had an opportunity to review the CAT scan. (Defendant's Exhibit G, page 2) The 10 percent impairment rating was never revoked, withdrawn, qualified or modified in the record. The CT scan of October 12, 1981 showed a small soft tissue density posterior to the disc space of S1-L5, suggesting a small disc centrally. The thecal sac appeared to be somewhat indented by this small disc (Def. Ex. G, p. 6). A further interpretation of this CT scan says there is a central grade II L5-S1 herniated nucleus pulposis. It says the disc was herniated, a grade II herniation of the nucleus pulposis (Def. Ex. G, p. 9). Claimant was seen at the University on December 3, 1982 by Doctors Salomon and Lehmann (full names unknown). They recommended against surgery and that claimant should continue to work (Def. Ex. G, p. 3). Her condition remained unchanged on March 7, 1983. On August 10, 1984, a physical therapist reported that claimant was unable to perform most of the exercises and standard positions; she seemed somewhat resistant to exercising and weight control (Def. Ex. G, pp. 9,10). She was seen in the pain clinic on the same date and Gail Vandewalker, M.D., and V. Kumar, M.D., reported a diagnosis of meralgia parasthetica. This is defined in the new American Medical Dictionary and Health Manual, by Robert E. Rothberg, M.D., F.A.C.S., as "numbness and lack of sensation on the outer aspect of the thigh caused by failure Page 4 of function of the nerve (lateral cutaneous) to that area." These doctors noted that claimant refused a local injection which they said may or may not help the pain permanently or temporarily. Claimant refused an injection of any type and the doctors advised her not to return to the pain clinic (Def. Ex. G, p. 10). Claimant testified that several friends told her that they had been worse after receiving these injections and, furthermore, the doctors could not give her any assurance that they would actually relieve her pain or help her in any way. Claimant testified that in September of 1982 the employer was laying off certain nurse's aides. Claimant testified two or three times that she was told by an employer representative that she was being paid her PTO (paid time off) and that she was instructed to apply for unemployment compensation. Claimant further testified that certain other nurse's aides were retained for employment in other capacities in the hospital such as the snack bar, general supply, housekeeping, and the kitchen. However, claimant vehemently denied that she was notified by employer that these positions were available or that they appeared on the bulletin board. She was told that she was to receive the PTO check and to go and apply for unemployment compensation benefits, which she did. Claimant regretted being laid off by employer because it was the best job she ever had. It paid the most money, had the best employee fringe benefits, and was the most enjoyable working experience. She wished that she could return to work for employer. She had made an application about three months prior to the hearing but she had not heard anything in return from employer. Defendant called no live witnesses. Claimant's testimony was not controverted, contradicted, rebutted or refuted. At the time claimant was terminated she was earning approximately $8.00 per hour. Subsequently, she has been employed at the West Wing Care Center and the Alverno Care Center. These nursing home employments have paid approximately $4.00 per hour. Thus, claimant has sustained an actual wage loss of approximately 50 percent of her former earnings. Lorene A. Blazek, night registered nurse at the Alverno Care Center, testified that claimant performs the duties of nurse's aide without complaints. She asks for help if she needs it for heavier residents. (Def. Ex. I, pp. 21-25) Pauline L. Kaufmann, director of nursing at Alverno Care Center, testified claimant has worked there since December 29, 1987 and performs her job as nurse's aide without any difficulty being called to her attention. Claimant has complained of pain in her back but has performed her duties as nurse's aide. (Cl. Ex. 2) Employer's inability to find any employment for claimant when she was laid off indicates the possibility of a rather substantial disability. Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (Appea security disability. Dr. Mericle was critical that claimant was 62 inches tall and weighed 250 1/4 pounds. He felt her pain reaction was excessive to the amount of his palpitation. He felt the solution to her back pain problem, whether real or not, was to get down to her marital weight of 130 pounds (Def. Ex. D, pp. 1-3). Claimant was denied social security benefits. Claimant saw David S. Field, M.D., on May 1, 1984 for an evaluation of back pain. He determined that she had a history compatible with sciatica but there is a considerable amount of functional overlay and excessive pain reaction when examined. He recommended pain management with biofeedback. He concluded: "Overall at this time she appears generally disabled from her back and leg pain, but does have a considerable amount of functional overlay and pain reaction secondary to her problem." (Def. Ex. E, p. 2) Dr. Field examined claimant a year later on May 1, 1985 and found little change in her condition between these two examinations. He found a history compatible with chronic type of left sides sciatica, with no evidence of neurological deficit with a large functional component present. He did not feel that her pain response would be altered based on the length of time it had been present. He concluded: "This would merit approximately a five percent whole body impairment based on the present examination and studies at this time." (Cl. Ex. 1, p. 2) In summary, then, with respect to impairment ratings, Doctors McAndrews and Lehmann assessed a 10 percent total body impairment rating on October 12, 1981 (Def. Ex. G, p. 2) and Dr. Field gave a 5 percent whole body impairment rating on May 9, 1985 (Cl. Ex. 1, p. 2). Page 6 There are a number of other medical reports from other doctors on a variety of physical, mental and emotional problems that claimant has been treated for, however, claimant's counsel stated that claimant was not asking for any benefits based upon these other conditions which were unrelated to the low back and left hip pain. Claimant requested an industrial disability determination based upon her low back and left hip injury which occurred on September 8, 1979. Wherefore, (1) based upon the evidence presented, (2) based on all the factors used to determine industrial disability, Christensenn v. Hagen, Inc., I Iowa Ind. Comm'r Rep. 529 (Appeal Dec. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., I Iowa Ind. Comm'r Dec. 654, 658 (Appeal Dec. February 28, 1985); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963), (3) applying agency expertise, Iowa Administrative Procedure Act 17A.14(5), (4) considering that claimant was disabled at ages 44 and 55 in her peak period of earning, (5) that she only has a seventh grade education and nurse's aide training with no evidence of a GED and is not a good candidate for retraining, (6) that she has sustained an approximate 50 percent loss of actual earnings, (7) that she has sustained a herniated intervertebral disc at L5-S1 for which surgery has not been recommended and no permanent restrictions imposed, (8) that she has impairment ratings of 5 percent and 10 percent of the whole person, (9) that claimant has been able to perform duties as a nurse's aide with the use of prescription medications and obtaining assistance before doing heavy lifting, (10) that employer could find absolutely no work for claimant and terminated claimant but could find employment for other nurse's aides, and (11) that claimant's disability contains a certain amount of functional overlay component, it is determined that claimant has sustained a 20 percent industrial disability to the body as a whole. Page 7 conclusions of law Wherefore, based upon the evidence presented and the foregoing and following principles of law, it is determined as a matter of law that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. order THEREFORE, it is ordered: That defendant pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of one hundred eighteen and 94/100 dollars ($118.94) per week in the total amount of eleven thousand eight hundred ninety-four dollars ($11,894) commencing on April 11, 1985, as stipulated to by the parties. That defendants are entitled to a credit for twenty-five (25) weeks of permanent partial disability benefits paid to claimant at the rate of one hundred eighteen and 94/100 dollars ($118.94) per week prior to hearing in the total amount of two thousand nine hundred seventy-three and 50/100 dollars ($2,973.50). That these benefits are to paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30, except for the period of a continuance which was requested by claimant, which the parties said they would be able to work out between themselves. That the costs of this action are charged to defendant. That defendant is specifically ordered to pay to claimant forty-six and 84/100 dollars ($46.84) for the transcription fees for the depositions of Lorene A. Blazek, and Pauline L. Kauffman, which were introduced at the hearing. The bill is attached to the prehearing report by claimant. Defendant is not obligated to pay claimant ninety-six and 90/100 dollars ($96.90) for the transcription fee of the deposition of Patricia Larson, claimant, for the reason that the transcript was not introduced into evidence at the hearing nor should it have been since claimant was present to testify and to be cross-examined. Such an item is normally considered to be a trial preparation expense. It is not normally construed to be "transcription costs when appropriate" as mentioned in Division of Industrial Services Rule 343-4.33(2). That defendant file claim activity reports as requested by this agency, pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this _____ day of August, 1990. Page 8 ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr David Sivright, Jr Attorney at Law 408 S 2nd St Clinton IA 52732 Mr James L Pillers Attorney at Law 1127 N Second St Clinton IA 52732 Page 9 postscripts walt - say something in the way of summarization of the depositions of Lorene Blazek and Pauline Kauffman. Back under the stipulations state that causal connection and entitlement to temporary disability benefits were not disputed matters in this case at this time. I also want to edit that point that official notice is taken of the form 2A in the industrial commissioner's file prepared on November 14, 1986 which shows that claimant was paid ttd benefits for 3 different periods of time - 9-9-79 to 1-25-80; 5-16-80 to 6-8-80; 9-17-82 to 10-11-84. In the itemization of my reasons for the industrial disability award I need to add another reason - that employer could find no work for claimant after the injury and found it necessary to terminate the employee. That it was not demonstrated that any doctor imposed any permanent restrictions on claimnt's working activities. Another industrial factor is that two doctors stated that claimant's disability has a certain amount of functional component involved in it. When claimant applied for work at West Wing and Alverno nursing care centers, she did not answer the questions on the application relative to prior back injuries. 51803 Filed: August 10, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : PATRICIA A. LARSON, : : Claimant, : : File No. 605093 vs. : : ST. JOSEPH MERCY HOSPITAL, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ 51803 This decision is a nonprecedential determination of industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MICHAEL W. PORTER, : : Claimant, : : File No. 612800 vs. : : R E V I E W - P & M STONE COMPANY, INC., : : R E O P E N I N G Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in review-reopening upon claimant's petition filed March 14, 1989. Claimant sustained a work injury on August 7, 1979 when a large piece of equipment fell on him in the course of his duties with P & M Stone Company, Inc., defendant employer. Claimant, his employer and its insurance carrier, The Travelers, entered into an agreement for settlement approved by a deputy industrial commissioner on March 2, 1981. The agreement for settlement pointed out that claimant had received appropriate treatment for various injuries, including surgical correction for a blow-out fracture of the right orbit, and determined that in addition to healing period and medical benefits, claimant was entitled to compensation for a 30 percent industrial disability to the body as a whole. The deputy at the same time approved an application for partial commutation in which the first 50 weeks of claimant's 150-week industrial disability entitlement was commuted, leaving the last 100 weeks of benefits remaining. Claimant subsequently filed a petition in review-reopening which was heard by a deputy industrial commissioner on February 12, 1987. A decision was filed on December 14, 1987, finding, in pertinent part, that claimant did not sustain a hearing loss as a result of the work injury and that he had not undergone any change of condition with respect to his diagnosis of diplopia or in any other respect. Claimant filed another petition for review-reopening on March 14, 1989. Hearing was had in Fort Dodge, Iowa, on June 15, 1990. The record consists of claimant's testimony, claimant's exhibits 1 through 15 and defendants' exhibits A through E. Official notice was taken of the entire Page 2 litigation file, including exhibits introduced during the previous review-reopening proceeding. issues Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury arising out of and in the course of his employment on August 7, 1979; that the injury caused temporary and permanent disability; that the appropriate rate of weekly compensation is $205.61. Issues presented for resolution include: the extent of claimant's entitlement to additional compensation for temporary and permanent disability and the nature and commencement date of the latter; the extent of claimant's entitlement to medical benefits (the parties stipulate that the expenses and fees charged for medical services and supplies are fair and reasonable and incurred for reasonable and necessary treatment, but it is disputed whether those expenses are causally connected to the work injury or authorized by defendants); whether defendants have a valid affirmative defense of limitations under Iowa Code section 85.26; whether a penalty should be imposed under Iowa Code section 86.13. In his post-hearing brief, claimant conceded that under current Iowa law, any claim for additional permanency benefits is barred by limitations. However, he contends that the limitations bar does not apply to additional periods of temporary total disability or medical benefits. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: The agreement for settlement and commutation approved by this office on March 2, 1981, noted that healing period ended January 5, 1981. One hundred fifty weeks of permanent partial disability benefits were approved (although the first 50 were commuted), or almost three years. There is no indication in the record that defendants delayed payment under the agreement for settlement. Accordingly, it would appear that the last payment of weekly benefits was made shortly before January 1, 1984. Since the previous review-reopening decision awarded no additional benefits, the record does not show any weekly payments made subsequent to January 1, 1984. Tom E. Smith, Jr., M.D., treated claimant shortly after the work injury. Care included a surgical right orbital exploration with repair of blow-out fracture and closed reduction of nasal fracture on August 17, 1979. There is no indication in the record that defendants have subsequently withdrawn Dr. Smith's authorization as a treating physician. Upon diagnoses of traumatic nasal deformity, nasal airway obstruction and osteomeatal unit stenosis with early chronic ethmoid sinusitis, Dr. Smith performed further Page 3 surgery on December 16, 1988 described as a septorhinoplasty, partial resection inferior and middle turbinates, bilateral anterior and posterior ethmoidectomy, bilateral maxillary antrostomy. Operative notes point out that claimant had previously undergone a major nasal fracture (obviously the work injury) with fracture deformity of the nose causing both a cosmetic debility to the nose and also causing a high grade nasal airway compromise as well as fracture into the anterior ethmoids bilaterally with mucoperiosteal thickening throughout the anterior and posterior ethmoid air cells. Dr. Smith's discharge summary and office notes point to his opinion that this surgical procedure was causally related to the work injury. No contrary evidence exists of record. Dr. Smith performed further surgery on August 4, 1989 described as left maxillary antrectomy. Dr. Smith's office notes, and particularly his letter to defendants' attorney dated July 20, 1989, reflect his opinion that this surgery was also directly related to the original work injury. Once again, no contrary evidence exists of record. Claimant's medical expenses relating to these procedures are set forth in exhibit 5. Including mileage at $.21 per mile, these expenses total $11,229.90. conclusions of law Iowa Code section 85.26(2) provides: An award for payments or an agreement for settlement provided by section 86.13 for benefits under this chapter or chapter 85A or 85B, where the amount has not been commuted, may be reviewed upon commencement of reopening proceedings by the employer or the employee within three years from the date of the last payment of weekly benefits made under the award or agreement. If an award for payments or agreement for settlement as provided by section 86.13 for benefits under this chapter or chapter 85A or 85B has been made and the amount has not been commuted, or if a denial of liability is not filed with the industrial commissioner and notice of the denial is not mailed to the employee, on forms prescribed by the commissioner, within six months of the commencement of weekly compensation benefits, the commissioner may at any time upon proper application make a determination and appropriate order concerning the entitlement of an employee to benefits provided for in section 85.27. The failure to file a denial of liability does not constitute an admission of liability under this chapter or chapter 85B, 85B, or 86. The last payment of weekly benefits made under the agreement for settlement approved by the agency was made prior to January 1, 1984. The petition in this case in review-reopening was filed on March 14, 1989. Accordingly, the agreement for settlement is not subject to Page 4 review-reopening, either as to temporary total or permanent partial disability benefits. Claimant takes the position that his claim for additional temporary total disability benefits should be treated separately, but the statute makes no such distinction. However, the statute specifically provides that the commissioner may "at any time" determine entitlement to medical benefits under section 85.27. For injuries occurring between July 1, 1973 and July 1, 1982, there is no statute of limitations applying to claims for medical benefits where there has been an agreement for settlement filed. Beier Glass Co. v. Brundige, 329 N.W.2d 280 (Iowa 1983). Defendants dispute whether the 1988 and 1989 surgical procedures are causally related to the original work injury. The claimant has the burden of proving by a preponderance of the evidence that the injury of August 7, 1979 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The record shows that the treating physician has opined that both surgical procedures are causally related to the work injury. No contrary expert opinion appears of record. Claimant has met his burden of proof on this issue. Defendants also assert in their post-trial brief that the agreement for settlement indicates claimant's agreement that there was no claim for injury to his eye and that the first review-reopening decision found no causal relationship between the injury and loss of vision. Both assertions misstate the record. The agreement for settlement specifically pointed out that claimant had undergone surgical correction for a blow-out fracture of the right orbit and the review-reopening decision of December 14, 1987 merely found there had been no change in claimant's condition. Page 5 Defendants also assert as a defense that they did not authorize medical treatment by Dr. Smith. However, Dr. Smith was one of the original treating physicians and there is no indication that authorization was withdrawn (much less that defendants would have been justified in withdrawing authorization for subsequent necessary surgical treatment). This defense fails. Claimant shall be awarded medical benefits and transportation expenses totalling $11,229.90 pursuant to the stipulation between the parties and claimant's exhibit 5. Claimant also asserts entitlement to penalty benefits and interest. However, this relief is not available with respect to an award of medical benefits. Klein v. Furnas Electric Company, 384 N.W.2d 370 (Iowa 1986). Page 6 order THEREFORE, IT IS ORDERED: Defendants shall pay unto medical providers set forth in claimant's exhibit 5 (or to claimant to the extent he has personally made those payments) medical expenses totalling ten thousand nine hundred fourteen and 90/100 dollars ($10,914.90) and, to claimant directly, mileage expenses of three hundred fifteen and 00/100 dollars ($315.00). The costs of this action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Tito Trevino Attorney at Law 503 Snell Building P.O. Box 1680 Fort Dodge, Iowa 50501 Office of M. Gene Blackburn 142 North 9th Street P.O. Box 817 Fort Dodge, Iowa 50501 P & M Stone Company, Inc. P.O. Box 569 Humboldt, Iowa 50548 CERTIFIED MAIL Travelers Insurance Company P.O. Box 9191 Des Moines, Iowa 50306 CERTIFIED MAIL 2403; 3800; 4000.2 Filed February 4, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : MICHAEL W. PORTER, : : Claimant, : : File No. 612800 vs. : : R E V I E W - P & M STONE COMPANY, INC., : : R E O P E N I N G Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 2403 Petition in review-reopening was filed more than three years after last payment of weekly benefits pursuant to agreement for settlement and partial commutation. Claims for additional temporary total and permanent partial disability (claimant underwent two late surgical procedures) were barred under 85.26, but medical expenses were awarded. 3800; 4000.2 Interest and penalty not awarded with respect to medical benefits under Klein v. Furnas Electric Company. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DENNIS K. SIMONS, FILE NO. 614314 Claimant, R E V I E W VS. R E 0 P E N I N G CATERPILLAR TRACTOR COMPANY, Employer, Self-Insured, _________________________________________________________________ _ INTRODUCTION This is a proceeding in review-reopening brought by Dennis K. Simons against Caterpillar Tractor Company, his self-insured employer. Claimant seeks further benefits as a result of an injury which occurred October 11, 1979. ISSUES The issues presented by the parties at the time of hearing are determination of claimant's entitlement to compensation for permanent partial disability. It was stipulated that claimant's healing period has been fully compensated and ended on January 18, 1984. It was further stipulated that in the event any permanent partial disability compensation is awarded the defendant is entitled to credit for 11 4/7 weeks based upon the payments shown on the Form 2A in the agency file. The parties agreed that the payments shown on the Form 2A have actually been paid but that the characterization of the payments as healing period or permanent partial disability was not precisely correct. Claimant seeks payment under the provision of section 85.39 for an examination conducted by Jerome G. Bashara, M.D. Claimant also seeks an award for mileage for travel in obtaining medical care and assessment of costs incurred in the prosecution of this proceeding. The case was heard at Davenport, Iowa on May 28, 1986 and was fully submitted on conclusion of the hearing. The record consists of testimony from claimant, Joan Simons, and Michael E. Hengel, Sr. Exhibits 1 through 13 were received into evidence. REVIEW OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at hearing was considered when deciding this case. Dennis K. Simons is a 35 year old married man with two children. At the time of hearing he stood five feet eight inches tall and weighed 200 pounds according to his testimony. Simons was formerly employed at the Caterpillar Tractor Company plant in Mt. Joy, Iowa where he worked as a machinist. on October 11, 1979 a tub slipped while it was being lifted by a chain hoist. Simons tried to push it away and in doing so fell backward into a tub injuring his back. Simons testified that he continued to work although he was experiencing increasing discomfort. The following morning Simons was examined by James C. Donahue, M.D., the plant physician where he was diagnosed as having a muscle strain, prescribed medication and instructed to perform sit down work which involved no bending (Exhibit 2). Claimant continued to work but his condition did not resolve. He was referred to Byron W. Rovine, M.D. On October 26, 1979, Dr. Rovine examined claimant and found him to have a height of five feet six and three-fourths inches and to weigh 230 pounds. Claimant exhibited symptoms which led Dr. Rovine to conclude that he was affected either by an aggravated lumbosacral strain or a mid-line disc extrusion. Dr. Rovine felt that if the condition were a strain it would take a prolonged period of bedrest and weight reduction to get claimant back into condition (Ex. 3, page 2). Dr. Rovine attempted to perform a myelogram on October 30, 1979 but was unsuccessful. He subsequently examined claimant on November 7, 1979 and found improved back movement with no reflex, motor or sensory abnormalities. Treatment in the nature of rest, heat and medications was continued (Ex.3, p.4). Dr. Rovine subsequently released claimant to return to light duty work effective December 10, 1979 with restrictions against pushing, pulling, working in stooped positions or climbing on ladders and with a 30 pound lifting limit (Ex.3, p. 9). Claimant testified that he took a medical downgrade to perform a lower paying position as a tool crib attendant on the second shift. As shown in exhibit 2 claimant made frequent visits to the company medical department with complaints of pain and received treatment in the nature of heat and medication. On September 25, 1980, claimant made a complaint to the medical department of exceeding his restrictions. He was then off work and remained off work until July 13, 1981 (Ex. 2, p. 11, Ex. 4, pp. 3-8). During that absence from work claimant was evaluated by Thomas Lehman, M.D., at the University of Iowa Hospitals and Clinics at Iowa City, Iowa. Dr. Lehman felt that claimant had an instability problem at the L5-Sl level and recommended that a chair back brace be obtained (Ex. 6). The brace was obtained and claimant reported that wearing it made him feel better (Ex.2,p.12) After claimant's return to work on July 13, 1981, he continued to make frequent visits to the medical department for heat treatment and medication. on August 28, 1981, he reported that he caught his heel in the bottom brace of a stool as he was getting off it and twisted as he fell forward. He reported that he injured his back in the incident (Ex. 2, p. 15). Claimant was taken off work until September 9, 1981. He was treated by John K. Meyer, D.O., who diagnosed claimant's condition as a lumbosacral sprain/strain and treated him with medication and rest (Ex. 8). Claimant testified that following the return to work his back was in the same condition as it had been previously and that he continued to work until laid off just prior to a strike in 1981 or 1982. Claimant's brief urges that the layoff occurred on April 5, 1982. Claimant has not returned to work SIMONS V. CATERPILLAR TRACTOR COMPANY Page 3 with Caterpillar. Claimant was also treated by Samuel W. Williams, D.O., in 1980 who in turn referred him to Sarah S. Werner, M.D., a neurologist. Dr. Williams had initially felt that claimant had a possible disc injury but then concurred with Dr. Werner's assessment of the case as one which was limited to a muscular injury (Ex. 10, pp. 7 & 8). Dr. Williams rated claimant as having a 10 percent permanent partial disability of the body as a whole as a result of the injury. Drs. Werner and Williams also concurred in their opinions that claimant's condition of being overweight contributed to his symptoms (Ex. 10, pp. 15 & 19, Deposition Ex. 1). Claimant had been reevaluated by Dr. Rovine on September 8, 1980 at which time Dr. Rovine confirmed his diagnoses of a lumbosacral strain. He found no neurological abnormalities, recommended that claimant continue on light duty work and further recommended that claimant lose weight (Ex. 3, p. 12). Following claimant's layoff he received unemployment compensation and searched for work unsuccessfully. He testified that he continued to experience discomfort in his back and the continuing symptoms of which he has complained. He entered a conditioning program under the direction of William H. Ash, M.D. The program consisted primarily of exercise and dieting. Dr. Ash's report of January 18, 1984 showed claimant to be free from acute symptoms and to have reduced his weight to 209 1/2 pounds. Dr. Ash felt that claimant had probably stabilized at that time as far as his back was concerned and that he was physically able to resume employment (Ex. 12, p. 3). During the time claimant was in the program he made significant progress with regard to weight loss and physical conditioning (Ex. 12). Claimant continued to voice complaints and under the direction of J.C. Donahue, M.D., underwent diagnostic testing in early 1983. A CT scan was performed which was interpreted by A. E. Berkow, M.D., as showing a possible conjoined nerve root or herniated disc. A myelogram performed approximately one month later was interpreted by Dr. Berkow as showing a herniated disc at the L5-Sl level rather than a conjoined nerve root (Ex. 11). Claimant was examined by Jerome G. Bashara, D.O., on February 15, 1983 and again on May 21, 1985. Dr. Bashara, after evaluating the myelogram and CT scan, concluded that claimant had a bulging disc at the L5-Sl level (Ex. 9, p. 17). He felt that claimant's overall condition presented a 10 percent permanent,partial physical impairment of his body as a whole related to the 1979 injury (Ex. 9, p. 12). Dr. Bashara found no neurological abnormalities (Ex. 9, p. 21). When he examined claimant in May, 1985 he found claimant's height to be five feet six and one-half inches and his weight to be 236 pounds. He stated that claimant was overweight and that the increased weight increases the symptoms of claimant's back condition. He also recommended that claimant lose weight (Ex. 9, pp. 32 & 33). SIMONS V. CATERPILLAR TRACTOR COMPANY Page 4 Claimant was evaluated by John E. Sinning, Jr., M.D., on February 22, 1984. Dr. Sinning was of the opinion that claimant's complaints of pain where apparently not related to his injury. He found no evidence of permanent physical impairment of function or instability. He felt that the abnormalities shown on the CT scan and myelogram indicated a conjoined nerve root and not disc herniation (Ex. 13). Claimant testified that his unemployment ran out in 1984 and that he increased his efforts at job hunting but continued to be unsuccessful. He was notified that his employee status with Caterpillar had been terminated due to the length of his layoff. He estimated that 80 percent of the places that he sought work were not hiring but that jobs were available and his back was a problem for some of them. Claimant reported that during the time he was laid off and searching for work someplaces he applied would not hire him due to his back problems and he felt that he would have been unemployed for a shorter amount of time if the back problem had not existed. Claimant agreed, however, that the local economy was a limiting factor in his ability to obtain employment. Claimant stated that his job searching included Dubuque, Clinton and the Quad Cities area. He stated that he was registered with the Department of Job Service. Claimant testified that he was unemployed until July 28, 1985 when he obtained a position with Huff Products in Maquoketa, Iowa where he currently works as a tool maker and maintenance person. Claimant related that he runs a surface grinder, drill grinder, lathe and cincinnati mill. He described it as a fairly standard line of machines. He stated that he is working in his trade as a tool and die maker. He stated that his job provides him with a desk where he can sit when he needs to and that his back is not generally a problem except for the times he operates a machine. His duties at Huff include showing salesman through the plant in order to obtain contracts. He stated that he can work at bench level. Claimant reported that he takes Valium on damp days and Duradine approximately three times a week for headaches. Claimant reported that he currently earns $5.72 per hour and works a 48 hour week. He reported that he has advanced as far as he can without entering management. He reported that he has no fringe benefits except vacation. He declined to accept a position as the second shift foreman because he likes his current job and also because the pay raise would have been of minimal significance. Claimant is a high school graduate who has completed one quarter of schooling at the Kirkwood Community College in mechanical drafting and metal hardening. He stated that it was a two year course but could not afford to complete it. He reported that he had good average grades. After attending Kirkwood he worked in a sign shop making custom signs and Christmas decorations. He then held a job where he built and designed machines that packaged products. In doing so he read prints and SIMONS V. CATERPILLAR TRACTOR COMPANY Page 5 built the machines from scratch. He testified that from the time he left Kirkwood until he became employed with Caterpillar he was not laid off and changed jobs only to obtain more money and better benefits. He felt that he was capable of performing the two jobs he had held prior to being employed by Caterpillar and that he also could perform the tool crib position but that he would not be able to perform the other jobs he had performed for Caterpillar. Claimant reported that he was earning in excess of $9.00 per hour and working 40 hours per week or more at the time he was injured. Claimant stated that presently his back gets tight and tense, especially in wet, cold weather. He experiences migraine headaches. He stated that the muscles in the small of his back spasm and twitch. He reported that if he does not sit when this occurs his knees can give way and he falls to the floor. He stated that the problems have existed since three weeks following the 1979 accident and have changed little since. Claimant reported an inability to walk on uneven ground for more than two hours or to lift more than 25 pounds. He reported that standing for extended periods is a problem. Claimant stated that he can bend forward if he bends his knees and goes slowly and that he can bend to the sides and back to some degree. He stated that he avoids activities such as mowing the lawn, overhead work and heavy maintenance around the house. Claimant acknowledged that he had been advised by his physicians to lose weight. He stated that he lost the weight that they had requested but saw no difference in the condition of his back due to weight changes. He stated that his weight had been in the range of 180 to 200 pounds during his adult life and then increased when he was injured. He stated that he has weighed 200 pounds for four or five years. Claimant denied having any back problems or injuries prior to the one in 1979 which is the bases for this case. Claimant testified that he has no disabilities other than those related to his back. He stated that since starting to work at Huff he has been examined and had medications but has engaged in no other medical treatment. Joan Simons, claimant's wife, confirmed claimant's testimony that he had no back problems prior to 1979 and that she has observed changes since then. She stated that he cannot bend, has trouble sleeping and is limited in his ability to do yard work and work on an automobile. She stated that if he turns too quickly, he hesitates. She reported that she has assumed most of the responsibility for mowing the lawn, shoveling the snow and moving things at their home. She also reported that claimant's attitude sometimes exhibits depression and aggravation over his discomfort and over the difficulty he had when he was unemployed. She stated that it was a source of stress between them. She stated that the stress has been reduced since claimant obtained his current employment. Michael E. Hengel, Sr., testified that he is the benefit representative for the United Auto Workers for Caterpillar SIMONS V. CATERPILLAR TRACTOR COMPANY Page 6 employees. Hengel testified that Caterpillar employees have a number of fringe benefits, as do employees of most large companies, but small employers generally offer less in the way of benefits and wages. Hengel testified that the Quad Cities area has a very depressed labor market and that of approximately 1200 Caterpillar workers who were laid off, only 485 still have recall rights. He related that other employers in the Quad Cities area also have many workers who are laid off. Hengel confirmed that most large employers have a long list of laid off employees who have recall rights and preference for hiring. He also confirmed that claimant's layoff and termination were due only to seniority. Hengel agreed that there are several hundred former Caterpillar employees who are still laid off and without employment and that the majority of them are physically able to work and available for work. Hengel testified that many large employers customarily have extended pre-employment physical examinations and will not hire anyone who has a history of back problems. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on October 11, 1979 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman V. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The evidence shows the injury to have occurred on October 11, 1979 even though a different date of injury appears in the petition and other filings in the case. A difference in the injury dates is found to not be prejudicial to defendant. The memorandum of agreement conclusively establishes that claimant sustained an injury which arose out of and in the course of his employment but does not establish the nature or extent of disability. Freeman v. Luppes Transport Company, Inc., 227 N.W.2d 143 (Iowa 1975). It is not necessary for claimant to show a change of condition in order to review the payment voluntarily made by the employer. Mejorado v. Caterpillar Tractor Company, 1-1 State of Iowa - Industrial Commissioner Decisions 168 (1984). Claimant's testimony regarding the fall into the tub at work is corroborated by the medical reports made at the time of the incident and his description of those events is found to be true and correct. The parties stipulated to the extent that all of the healing period has been compensated. There remain no unpaid section 85.27 benefits, other than the claimed travel expenses. The rate of compensation has been stipulated to be $219.12 per week even though some prior agency filings reflect a different rate. The stipulated rate is accepted as being the correct one. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 11, 1979 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl SIMONS V. CATERPILLAR TRACTOR COMPANY Page 7 v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). All physicians who appear in the record of this case who have expressed an opinion regarding the cause of claimant's complaint, with the exception of Dr. Sinning, relate his complaints to the injury of October 11, 1979. A causal connection is therefore found to exist between the injury and any disability which currently exists. Several physicians, namely Drs. Bashara and Williams have rated claimant as having a 10 percent permanent partial physical impairment. Dr. Sinning, however, found no permanent physical impairment. Drs. Bashara and Williams are accepted as being correct in this regard. A number of physicians have diagnosed claimant as having a medically determinable condition. Claimant has continuing complaints which have endured for a substantial period of time. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain SIMONS V. CATERPILLAR TRACTOR COMPANY Page 8 that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). It appears that claimant is now appropriately employed. He does, nevertheless, have significant restrictions upon his physical activities. These restrictions have, in all likelihood, limited his abilities to obtain employment. They limit his access to some of the jobs within his field of work as a tool and die maker or machinist. One troubling part of this case is the fact that the physicians have uniformly indicated that claimant's weight is detrimental to him as it relates to the symptoms he experiences regarding his back. They have consistently recommended that he lose weight. The lengths to which a person will go in order to obtain relief of their symptoms is a factor to be considered when the severity of the symptoms is being evaluated. It appears from the record that claimant's weight was 230 pounds when he was first seen by Dr. Rovine a few days following the injury. It dropped as low as 209 pounds when he was in the program directed by Dr. Ash but it was 236 pounds when he was seen approximately a year later by Dr. Bashara. He appeared to be significantly overweight at time of hearing. The record does not reflect that claimant has ever, since the date of injury, reduced his weight to the point that he would be considered not overweight. His statement that the weight loss that he did achieve produced no noticeable improvement in his condition is somewhat inconsistent with the improvement that was noted by Dr. Ash. It is found that claimant's symptoms and complaints of discomfort are of a degree of severity that he is able to manage and endure. When all applicable factors of industrial disability are considered, it is found that the injury of October 11, 1979 produced a 15 percent permanent partial disability of the body as a whole when it is evaluated industrially. The issue of a section 85.39 examination was litigated by consent of the parties without objection. The record does not show claimant to have received a section 85.39 examination other than the one which he seeks from Dr. Bashara. The record reflects that claimant had been evaluated for permanent disability by Dr. Sinning prior to Dr. Basharals evaluation which was made in 1985. It is found that claimant is entitled to an examination at the employer's expense under the provision of section 85.39. The reasonable cost of such an examination is found to be $300.00 as claimed. SIMONS V. CATERPILLAR TRACTOR COMPANY Page 9 Claimant seeks mileage expenses as shown in the attachment to the prehearing report for 1,219 miles. When computed at $.24 per mile the entitlement is $292.56. Claimant also seeks taxation of costs as set forth in attachment D to the prehearing report. The items claimed are proper elements of costs under Rule 500-4.33 and the amounts claimed are also proper except that the expert witness fee for Dr. Bashara should be limited to $150.00 in accordance with code section 622.72. The total is therefore $433.10. FINDINGS OF FACT 1. Claimant was injured on October 11, 1979 when he fell backward into a tub at the Caterpillar Tractor Company plant in Mt. Joy, Iowa. 2. Claimant is married, 35 years of age and has two children. 3. Claimant earned an excess of $9.00 per hour at the time of injury but now earns $5.72 per hour. He has substantially less in the way of fringe benefits at his current employment than what he had with Caterpillar. 4. Claimant presently experiences discomfort due to a chronic lumbosacral strain of his back and has a possible herniated or bulging intervertebral disc at the L5-Sl level. He is limited in his ability to bend, reach, lift, stoop, walk on uneven ground or stand for extended periods of time. He has a permanent functional impairment in the range of 10 percent of the body as a whole. 5. Claimant has a high school education and has completed one,quarter at the Kirkwood Community College in the field of mechanical drawing and metals. 6. Claimant has worked building signs and also building packaging machines which he constructed them from blueprints. Claimant is a qualified machinist and tool and die maker. 7. Claimant is of at least average intelligence, emotionally stable and motivated to be employed. 8. Claimant's inability to find work following his layoff from Caterpillar was in part due to the back injury but the primary factor was the depressed local economy and the unavailability of jobs for machinists. 9. The fall of October 11, 1979 is a substantial factor in producing the permanent partial disability with which claimant is currently afflicted. That disability is 15 percent permanent partial disability of the body as a whole when evaluated industrially. 10. In obtaining treatment claimant traveled a total of 1,219 miles, of which 720 miles is related to a section 85.39 examination. SIMONS V. CATERPILLAR TRACTOR COMPANY Page 10 11. Dr. Sinning, an employer retained physician, had evaluated claimant's disability and claimant felt that the rating was too low. 12. It was reasonable for claimant to obtain an independent medical examination from Dr. Bashara. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury claimant sustained to his back on October 11, 1979 arose out of and in the course of his employment with Caterpillar Tractor Company. 3. Claimant has a 15 percent permanent partial disability of the body as a whole for which he is entitled to receive 75 weeks of compensation payable at the rate of $219.12 per week commencing January 19, 1984. Defendant is entitled to a credit of 11 4/7 weeks against that award with the remainder being a net amount due of 63 3/7 weeks. 4. Claimant is entitled to travel expenses under section 85.27 in the amount of $292.56. 5. Claimant is entitled to recover the cost of an independent medical examination under the provisions of section 85.39 in the amount of $300.00. 6. Claimant is entitled to recover the costs of this proceeding in the amount of $433.10. ORDER IT IS THEREFORE ORDERED that defendant pay claimant sixty-three and three-sevenths (63 3/7) weeks of compensation for permanent partial disability at the rate of two hundred nineteen and 12/100 dollars ($219.12) per week commencing March 9, 1984 after allowing defendant eleven and four-sevenths (11 4/1) weeks of credit for benefits previously paid. IT IS FURTHER ORDERED that defendant pay claimant two hundred ninety-two and 56/100 dollars ($292.56) representing travel expenses. IT IS FURTHER ORDERED that defendant pay claimant three hundred and no/100 dollars ($300.00) representing the cost of an independent medical examination under section 85.39. IT IS FURTHER ORDERED that defendant pay the costs of this action pursuant to Rule 500-4.33 in the amount of four hundred thirty-three and 10/100 dollars ($433.10). IT IS FURTHER ORDERED that defendant file a claim activity report as requested by this agency pursuant to Rule 500-3.1. SIMONS V. CATERPILLAR TRACTOR COMPANY Page 11 Signed and filed this 17 day of September, 1986. MICHEAL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Arthur C. Hedberg, Jr. Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801-1550 1402.40; 1803 Filed September 17, 1986 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DENNIS K. SIMONS, FILE NO. 614314 Claimant, R E V I E W VS. R E 0 P E N I N G CATERPILLAR TRACTOR COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 1402.40; 1803 Claimant, a 35 year old machinist and tool and die maker, who suffered a lumbosacral strain in a fall at work, which strain became chronic, was awarded 15 percent permanent partial disability. The claimant had been advised uniformly by the physicians who had seen him to lose weight but did not do so. Such was held to be an indication that his complaints and symptoms were of a degree he was capable of tolerating and that they did not produce an extreme degree of discomfort. Claimant was from the Quad Cities area and the difficulty he experienced in finding employment within his trade was found to be attributable more to the local economy than to the condition of his back. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUANITA MANN, File No. 615959 Claimant, R E V I E W - vs. R E O P E N I N G ARMOUR-DIAL, INC., D E C I S I O N Employer, F I L E D Self-Insured, Defendant. MAY 30 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding brought by Juanita Mann against Armour-Dial, Inc., her former employer, wherein she seeks section 85.27 benefits. The employer responded to her claim with a counter-claim seeking to reduce the extent of permanent partial disability which was previously awarded by this agency. The case was heard and fully submitted at Burlington, Iowa on September 28, 1988. The record in the proceeding consists of claimant's exhibits 1 through 11 and defendant's exhibits A, B and C. The record also contains the testimony of Juanita Mann, Andrew Edgar and Richard Adkins. Official notice was taken of the prior appeal and review-reopening decisions entered in this case. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. The appeal decision entered in this case on July 25, 1983 determined that Juanita Mann injured her left arm and shoulder while at work for Armour-Dial in September, 1979 and that she subsequently injured her low back at work for the employer on October 10, 1979. It was determined that she had permanent partial impairment of her neck and left shoulder. It was determined that as a result of the injuries, claimant had a permanent partial disability to the body as a whole of 30%. Claimant testified that she had problems with her medical expenses. She stated that Dr. Mackenzie in Fort Madison had been the authorized treating physician for her condition and that she attempted to see him but that he declined and told her that he could not treat her without approval from Armour-Dial. Claimant testified that she phoned Martha Lutenegger at Armour-Dial on four occasions in February or March of 1984 and was told that Martin Graber, the personnel manager, had decided that claimant did not need additional medical treatment or medications and that none would be authorized. Claimant testified that she then sought treatment from her own personal physician and was provided medications for which she paid part of the cost. Claimant testified that for all the medical treatment that she has received, part has been paid by the Armour-Dial group medical insurance and that she has paid the difference. Mann stated that all bills contained in claimant's exhibit 1 were incurred in obtaining treatment for the injuries which are the basis of this claim. Claimant testified that exhibit 2 was incurred for tests arranged by Dr. Worrell at Iowa City and that the Armour-Dial group insurance had paid Dr. Worrell. Claimant related that James Smith is a physical therapist whose services were arranged by Dr. Worrell for treatment of the injuries that claimant had sustained in this case. Claimant stated that initially after the injury occurred, she went to Dr. Schrier, the company physician, who referred her to Koert Smith, M.D., who in turn referred her to Dr. Worrell. Claimant stated that Martha Lutenegger at Armour-Dial had directed her to seek treatment from Dr. Mackenzie. Claimant testified that the medications for which she seeks reimbursement are used in treating pain in her low back and that they are effective at stopping the pain. Claimant stated that the medications were initially prescribed by the company physicians in the past and had been prescribed only for purposes of the injury which is the basis of this case. Claimant stated that she has continued to incur expenses for medication as shown in exhibit 6. Claimant testified that Dr. Mackenzie has moved out of state and is no longer available. She related that she formerly received her prescription medications at Keasling Drug in Keokuk, Iowa, but that she has been informed that Armour-Dial informed Keasling Drug it should not charge her prescriptions to Armour-Dial. Mann testified that when this case was originally tried, she expected to return to work and was merely on layoff. She stated that she returned to work and had difficulties and eventually quit in 1984 while she was in a layoff status. Claimant subsequently obtained employment with Sheller Globe in April, 1984. She was initially paid $7.44 per hour, but has had pay increases to her current earning rate of $10.55 per hour. Claimant stated that the jobs she has performed at Sheller Globe place less strain on the injured parts of her body. Claimant stated that since the original hearing and decision in this case, her pain has increased and the strength of the pain medication which she takes has also increased. Claimant stated that almost any activity causes pain to her back and that the strain on her back increases in proportion to the amount of weight she handles. Claimant described her job as a production worker at Armour-Dial and also the job she has at Sheller Globe. Claimant related that all of the jobs she has held at Sheller Globe are more strenuous than the job of inspecting Vienna sausages which she had held at Armour-Dial. Claimant stated that she has had to be taken off some jobs at Sheller Globe due to her condition. Claimant related that she was injured at Sheller Globe in 1987, but that the injury healed and she returned to the same condition as had existed prior to that injury. Andrew Edgar, the environment services manager for Sheller Globe, related that claimant had injured her back, shoulder and neck in late 1987. Edgar testified that claimant now is employed as a finish operator where she handles rubber weatherstrips weighing approximately one-half of one pound and that the only heavier lifting she would perform would be to obtain a pallet. Edgar stated that claimant moved to her current job due to her own request. The previous job involved handling auto ashboards and operating a welding machine. Edgar stated that the weatherstripping job is considered to be more desirable than welding. Richard Adkins, the current Armour-Dial employment relations manager, was employed at Sheller Globe when claimant was interviewed and hired. Adkins stated that when claimant was hired, she admitted no disability. Adkins stated that claimant's work as a finish mold operator is much more strenuous than the inspector job at Armour-Dial. Adkins stated that claimant was earning $10.69 per hour when she left Armour-Dial, but that subsequently there was a general wage rate reduction and that in October, 1986, claimant would have been earning $10.50 per hour if she had remained with Armour-Dial. Adkins testified that James Kannenberg, M.D., is now the company physician and that he is who claimant should contact if she needs treatment for this injury. Adkins further stated that in order to obtain payment for prescription medications, claimant should contact him as he is the person in the office to contact in order to obtain payment of medical bills. It was stipulated by the parties at the commencement of the hearing that the last payment of weekly compensation was paid to claimant on April 22, 1986. The file discloses that claimant's petition for review-reopening was filed June 21, 1984. Employer's exhibit C indicates that claimant was told that the company physician did not believe her complaints which were made in September, 1983 were related to her,injury of 1979, so she should see her personal physician for her shoulder complaints. The exhibit further indicates that claimant left work early on September 7, 1983 due to pain in her shoulder and back and was thereafter seen at the Keokuk Area Hospital and taken off work due to her complaints. E. A. Dykstra, M.D., an orthopaedic surgeon who treated claimant and whose deposition was received into evidence at the prior hearing in this case, stated in that deposition: I think for the long term good of her shoulder she would be better off in a job that did not require a continuing repetitive motion. Once this -- Once the cycle is started, she's bound to have repeated and repeated flares. Occasionally these will result in the need for surgical intervention with a partial resection of the bursa and/or in her case a repair of a cuff. The medical expenses for which claimant seeks payment are included in claimant's exhibits 1 through 7. After reviewing the same and eliminating duplications, the amounts which claimant seeks to recover are as follows: Keokuk Area Hospital $ 128.04 (balance paid by Armour-Dial group insurance) Mercy Hospital 537.65 James B. Smith, L.P.T. 35.00 Osco Drug 729.69 Total expenses claimed $1,430.38 APPLICABLE LAW AND ANALYSIS A party seeking review-reopening of an award must demonstrate by a preponderance of the evidence that a change of condition occurred subsequent to the original award. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940). A change in the claimant's condition which was not contemplated at the time of the initial award will justify review-reopening. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957); Fischer v. W. F. Priebe & Co., 178 Iowa 611, 118 N.W.2d 570 (1962). A change of condition may be a change of physical condition or a change of economic circumstances which affects the employee's earning capacity. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980), Blacksmith v. All-American.Inc., 290 N.W.2d 348 (Iowa 1980). Since claimant's last payment of compensation was paid on April 22, 1986, the employer's attempt to have the amount of industrial disability reduced is not barred by the provisions of Code section 85.26. The primary evidence upon which the employee seeks to reduce claimant's industrial disability award is that she now handles weights at Sheller Globe which are heavier than the weights which she handled when she was employed at Armour-Dial. The weights claimant has handled at Sheller Globe are still in the range of what would be considered light exertion. It is within the range of activity that the medical practitioners felt claimant was capable of performing. The change is not substantial. No physician has identified any particular change in claimant's physical condition. While claimant was unemployed at the time of the initial hearing, it is apparent that it was expected she would gain employment. If it had been anticipated that she would not be able to gain employment, she would have been categorized as totally disabled. In order to obtain other employment, claimant experienced a reduction in wages. She was off work for a time. The evidence fails to show that there has been anything that occurred with regard to claimant's economic circumstances which would not have been within the contemplation of the deputy industrial commissioner that originally heard the case or of the deputy industrial commissioner who issued the appeal decision. Defendant's request to reduce the industrial disability award is therefore denied. Since the entire award has been previously paid, the issue is, in all likelihood, moot, but the ruling herein is made on the merits in the event that any further litigation should arise in this case. Claimant's claim for an increased industrial disability award is likewise denied due to the lack of a showing of any substantial change in circumstances that would not have been within the contemplation of the hearing or appeal deputy commissioner. Claimant seeks to recover the medical expenses previously set forth. The record of this case contains no direct medical evidence regarding whether or not the medical treatment and expenses are causally connected to the original work injury. While proximate cause is often within the realm of expert medical testimony, it is not necessarily so under all circumstances or in every case. In some matters, the chain of causation is so clear that the causal connection is apparent even to individuals without medical training. In a workers' compensation case tried to a deputy industrial commissioner, agency expertise and experience may be relied upon when deciding the case. Iowa Code section 17A.14(5). The charges with Mercy Hospital and James Smith, L.P.T., were all incurred prior to December 13, 1982, the date of the original hearing in this case. Such charges might have been susceptible to a defense in the nature of res judicata or preclusion since they apparently existed but were not raised at the time of the prior hearing. Nevertheless, preclusion is an affirmative defense and it was not raised in this case. It is determined that the charges were incurred for treatment of the injuries which are the basis for this claim. The charges are therefore the responsibility of the employer. The charges claimant incurred at the Keokuk Area Hospital were incurred during the time that she continued to be employed by Armour-Dial. There is no evidence whatsoever that anything other than either the original injury or some aggravation of that injury which was produced by her continued employment activities at Armour-Dial produced the necessity for medical treatment. In view of the fact that permanent impairment was determined to have resulted from the injuries and in particular the statements from Dr. Dykstra regarding the future prognosis, it is certainly to be expected that a need for further medical treatment could quite possibly arise. It is noted that in employer's exhibit C, the employer specifically confirms that it directed claimant to see her own personal physician for her shoulder complaints. Accordingly, any lack of authorization defense must fail. Armour-Dial is therefore responsible for all of claimant's charges at the Keokuk Area Hospital. After deducting the group insurance payments for which the employer is entitled to credit under Code section 85.38(2), the balance of $128.04 must be paid by Armour-Dial. Code section 85.27 gives an employer the legal authority to select the providers of medical care when an employee sustains an injury which arises out of and in the course of employment. The statute also, however, gives the employer the duty to provide prompt, reasonable treatment. The evidence presented in this case is that when claimant sought to return to Dr. Mackenzie who had been a duly-authorized employer-selected physician, she was informed by the doctor that Armour-Dial would not authorize further treatment. At the time of claimant's injury, Dr. Schrier was the authorized company physician. At some point in time which does not appear in the record, the company physician apparently changed to Dr. Kannenberg. There is no evidence in the record from the employer which indicates that claimant was ever advised that treatment for her condition should be sought from Dr. Kannenberg. If an employer chooses to exercise its right to select medical care, it must somehow communicate its choice to the employee. Where an employer simply refuses to provide treatment, the employee is free to seek treatment of the employee's choice. The only limits upon the employer's liability under those circumstances are the limits that the care must have been reasonable, necessary and causally related to the employment injury. All those elements are present in this case. The prescription medications are shown by the evidence to have been the same medications which had been previously prescribed for the same condition by the authorized treating physicians. The fact that they are prescribed by a physician chosen by the claimant, after the employer has refused to provide treatment, does not give grounds for a lack of authorization defense. The nature of the medications and claimant's complaints are adequate evidence that since the complaints are essentially the same and the medications are essentially the same, the medications were prescribed for treating the same symptoms and complaints, just as had been previously done prior to the hearing that was held in 1982. The prescription medications were obtained at a time, however, when claimant was employed by Sheller Globe. There is evidence in the record that claimant sustained an injury with Sheller Globe in December of 1987. However, all the prescriptions were issued in the time span commencing with July 25, 1986 and running through July 27, 1987. It can be reasonably urged that claimant's work at Sheller Globe may have aggravated the condition which was originally caused by the Armour-Dial injury. Even if such were true, however, the fact remains that for a cause to be proximate, it must be a substantial factor in producing the result. It need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Accordingly, Armour-Dial is responsible for payment of claimant's expenses with Osco Drug in the amount of $729.69. Claimant seeks a penalty under the provisions of the fourth unnumbered paragraph of Code section 86.13. There is certainly sufficient evidence in the case to conclude that the failure to pay the expenses with Keokuk Area Hospital, Mercy Hospital and James Smith was unreasonable. The Iowa Supreme Court, however, has ruled that the penalty provisions of Code section 86.13 do not apply to medical expenses covered under Code section 85.27. Klein v. Furnas Electric Co., 384 N.W.2d 370 (Iowa 1986). Despite the fact that the Code uses the word "benefits" rather than "weekly compensation," the Iowa Supreme Court concluded that the penalty applies only to weekly compensation. The court recently held that the term "compensation" when used in section 85.22 includes benefits payable under section 85.27. Johnson v. Harlan Community School Dist., 427 N.W.2d 460 (Iowa 1988). It is possible that a bad faith failure to settle tort could be pursued under the theory of Dolan v. Aid Insurance Co., 431 N.W.2d 790 (Iowa 1988) since the workers' compensation statute has been declared to not provide a remedy for bad faith claims adjustment practices regarding medical expenses. It is not impossible that the court might allow the claim to be litigated in the tort forum since the claim arises from claim handling practices, rather than directly from the injury itself. If faced with the issue, the court could also reverse Klein and hold that 86.13 does apply to section 85.27 benefits. This would retain the workers' compensation statutes as the exclusive remedy even for the claims arising from claim handling practices. The undersigned is, however, bound by the existing precedents and is not free to overrule Klein. Accordingly, claimant's claim for a penalty under Code section 86.13 must be denied. FINDINGS OF FACT 1. There has not been any substantial change in claimant's physical or economic condition which was not within the contemplation of the deputy who originally heard this case or of the deputy who issued the appeal decision in order to permit reopening of the award for permanent partial disability. 2. The medical expenses claimant incurred with Keokuk Area Hospital, Mercy Hospital and James Smith, L.P.T., were incurred for medical expenses used to treat the injury that claimant sustained on September 28, 1979. 3. The expenses which claimant incurred with the Keokuk Area Hospital, Mercy Hospital and James Smith, L.P.T., were expressly or implied authorized by the employer. 4. The expenses claimant incurred with Osco Drug were incurred at a time when the employer refused to provide medical treatment for the claimant. 5. The expenses claimant incurred with Osco Drug were reasonable treatment for the injuries she sustained on September 28, 1979. 6. The injury claimant sustained on September 28, 1979 has been previously been determined to have caused permanent disability which had the potential for requiring future medical treatment and that injury is a substantial factor in producing the need for the prescription medications which claimant obtained from Osco Drug. 7. The expenses incurred with Osco Drug are reasonable. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. There has been no change of condition which would warrant review of the permanent partial disability award which was previously made in this case. 3. Defendant is responsible for payment of the following medical expenses incurred by claimant: Keokuk Area Hospital $ 128.04 Mercy Hospital 537.65 James B. Smith, L.P.T. 35.00 Osco Drug 729.69 Total expenses claimed $1,430.38 ORDER IT IS THEREFORE ORDERED that defendant pay the following of claimant's medical expenses: Keokuk Area Hospital $ 128.04 Mercy Hospital 537.65 James B. Smith, L.P.T. 35.00 Osco Drug 729.69 Total expenses claimed $1,430.38 IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 3Oth day of May, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. Gregory J. Humphrey Attorney at Law' 627 Avenue G Fort Madison, Iowa 52627 1403.30, 2501, 2905 Filed May 30, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUANITA MANN, Claimant, File No. 615959 vs. R E V I E W ARMOUR-DIAL, INC., R E 0 P E N I N G Employer, D E C I S I 0 N Self-Insured, Defendant. 2905 A small increase in the exertion level of claimant's employment was held to be an insufficient change to warrant review of the prior award. 1403.30, 2501 Where employer refused to authorize any treatment, claimant was free to select her own care and the employer's defense of lack of authorization failed. Employer's belated offer of care at the time of hearing was too late to remedy its prior denial of care and treatment. Where an injury produced permanent disability and the claimant subsequently obtained employment with a new employer, the fact that the employment with the new employer may have aggravated the condition did not relieve the original employer from liability since the original injury remained a substantial factor and the underlying factor in the need for the additional medical care and the prescription medications.