BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN A. ALBRIGHT, Claimant, VS. File Nos. 696983/682771 WILSON FOODS CORP., A P P E A L Employer, Self-Insured, D E C I S I 0 N and THE SECOND INJURY FUND OF IOWA, Defendants. STATEMENT OF THE CASE Defendant-Wilson Foods Corp. (hereinafter Wilson), appeals from a consolidated review-reopening decision in which claimant was awarded permanent partial disability benefits for 30 percent industrial disability. The deputy found that the second injury fund was liable for three weeks of claimant's entitlement to permanent partial disability benefits. Claimant cross-appeals. The record on appeal consists of the transcript of the hearing and the joint exhibits A through F together with the briefs and filings of all parties on appeal. Pursuant to agreement of the parties the following answers to interrogatories were reviewed: 1) Claimant's answers to interrogatories propounded by Wilson filed November 29, 1984; 2) Claimant's answers to interrogatories propounded by The Second Injury Fund of Iowa, filed December 28, 1984 (the fund propounded 23 interrogatories, claimant answered 2, 4, 7, 8, 9, 10, 19, 20, and 24); and 3) claimant's amended answers to interrogatories filed February 12, 1985. On pages 50-51 of his deposition of March 20, 1985 claimant, through his attorney, refined or modified some of his answers to interrogatories. ISSUES The defendant-Wilson states the following issues on appeal: 1. Whether the evidence supports the finding of present industrial disability. 2. Whether a finding of industrial disability attributable solely to a second compensable injury is required or appropriate in this case. 3. If industrial disability relating to the second injury only must be determined, whether the record supports the finding relating to the second injury. On cross-appeal claimant suggests two additional findings of ALBRIGHT V. WILSON FOODS CORP. Page 2 fact be made. The first of these findings is that there has been no physical effect outside the legs from either,of these two injuries. The second is that the overall industrial disability which has been found is a result of a combination of the two injuries and is not solely attributable to the second injury. REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Briefly stated, claimant sustained an injury to his right knee while Ochanging grates" at work on September 9, 1981. He subsequently underwent an arthroscopy and arthrotomy with medial meniscectomy of the right knee, which was performed by Martin F. Roach, M.D. Claimant returned to work on December 1, 1981 with no work restrictions, although he did experience some difficulties which required further physical therapy. Claimant's job upon his return was boiler room maintenance person which was the same job he was doing at the time of the September 9, 1981 injury. Claimant sustained a second injury on February 9, 1982 which was to his left knee. Again, this injury occurred while claimant was "changing grates.O Subsequently, claimant underwent an arthrotomy with removal of the meniscus, on the left knee on March 15, 1982. This surgery was performed by L.C. Strathman, M.D. Dr. Strathman released claimant for light duty on May 3, 1982 and for regular duty on May 19, 1982. However, the job to which claimant returned, boiler room utility man, involves less climbing, no changing grates, and he is able to sit down when his knees bother him. The boiler room utility job pays fifteen cents an hour less than the boiler room maintenance job, but the boiler room utility job rotates between shifts which allows claimant to earn a shift premium which actually improves the amount of claimant's total wages. Dr. Strathman opines that claimant has functional impairment of ten percent for each leg related to the loss of meniscus in each knee. Claimant is 47 years old and a high school graduate with a work history involving manual labor. Claimant has worked for Wilson (now Farmstead Foods) since he was discharged from the navy in 1961. Claimant is subject to being bumped from his current job by a Wilson employee with more seniority. He continues to complain of pain in his knees when standing on concrete floors for over 45 minutes or when the weather is cold or damp. APPLICABLE LAW AND ANALYSIS Assessment of industrial disability sustained as a result of a second injury is appropriate only when the second injury extends to the body as a whole. Fulton v. Jimmy Dean Meat Company, Appeal Decision, July 28, 1986. Fulton represents the current agency interpretation of Second Injury Fund v. Mich Coal ALBRIGHT V. WILSON FOODS CORP. Page 3 Company, 274 N.W.2d 300 (1970). Applying the holding in Fulton to the record, it is found that the employer's liability is limited to the functional impairment of each scheduled member as there is no evidence presented that the second knee injury that claimant sustained extends to his body as a whole. Accordingly, the second injury fund is liable for any industrial disability which claimant has sustained over the combined scheduled losses. Therefore, a determination of the extent of claimant's industrial disability must be made. When the record as a whole is considered it is found that claimant has sustained industrial disability of 30 percent. Thus, the second injury fund would be liable for 106 weeks of permanent partial disability benefits. FINDINGS OF FACT 1. Claimant is 47 years old. 2. Claimant is a high school graduate with a work history of solely manual labor. 3. Claimant was discharged from the U.S. Navy on July 7, 1961. 4. After discharge from the navy, claimant started work for Wilson (now Farmstead Foods) in Cedar Rapids; he has worked for Wilson for more than 24 years. 5. Claimant worked in Wilson's beef boning department for about 17 years. 6. After the beef boning department closed, claimant worked at other manual labor jobs at Wilson. 7. On September 9, 1981, claimant injured his right knee while working as a boiler room maintenance person at Wilson; this job is also referred to as boiler room mechanic. 8. Claimant had surgery on his right knee and was off work for about ten weeks. 9. Claimant returned to work without medically imposed restrictions because of his right knee, but experienced pain in his right knee on the job. 10. On February 9, 1982, claimant injured his left knee while working as a boiler room maintenance person at Wilson. 11. Claimant had surgery on his left knee and was off work for about seven weeks. 12. Claimant currently works for Wilson as a boiler room utility person, because in this capacity he is allowed to sit when he physically needs to do so. 13. Most of the approximately 1500 jobs at Wilson are not the type of jobs that would allow a person to sit at will. ALBRIGHT V. WILSON FOODS CORP. Page 4 14. Claimant could be bumped from his current job by a Wilson employee with more seniority. 15. Claimant sustained ten percent permanent partial impairment to each of his knees as a result of the injuries on September 9, 1981 (right knee) and February 9, 1982 (left knee). 16. The disability from the second injury claimant sustained does not extend into the body as a whole. 17. Claimant has difficulty climbing, lifting, stooping, crawling, and working on his knees, and this is a result of his work-related injuries to his knees. 18. Claimant's industrial disability as it relates to the body as a whole because of the combined effects of his two knee injuries is 30 percent. 19. Pursuant to stipulation, the rate for the injury of February 9, 1982 is $300.46 and the date for commencing payment of permanent disability benefits is May 3, 1982. The rate for the injury of September 9, 1981 is $280.45 and the date for commencing payment of permanent disability benefits is December 1, 1981. 20. The two injuries in this case are separate and distinct. CONCLUSIONS OF LAW The compensable value of the permanent injury to the right leg is 22 weeks. The compensable value of the permanent injury to the left leg is 22 weeks. The overall industrial disability as a result of the combined effects of both permanent injuries is equal to 150 weeks. The obligation of the second injury fund is 106 weeks of permanent partial disability benefits. The obligation of the second injury fund commences October 4, 1982 and ends October 14, 1984. WHEREFORE, the decision of the deputy is modified. ORDER THEREFORE, it is ordered: That Wilson Foods Corp. pay claimant twenty-two (22) weeks of permanent partial disability benefits commencing May 3, 1982 ALBRIGHT V. WILSON FOODS CORP. Page 5 through October 3, 1982 at the weekly rate of three hundred and 46/100 dollars ($300.46). That the Second Injury Fund of Iowa pay claimant one hundred six (106) weeks of permanent partial disability benefits commencing October 4, 1982 through October 14, 1984 at the weekly rate of three hundred and 46/100 dollars ($300.46). That Wilson Foods Corp. pay claimant twenty-two (22) weeks of permanent partial disability benefits commencing December 1, 1981 through May 4, 1982 at the weekly rate of two hundred eighty and 45/100 dollars ($280.45). That Wilson Foods Corp. be given credit for benefits already paid. That accrued benefits are to be paid in a lump sum together with interest pursuant to section 85.30, The Code. That Wilson Foods Corp. and Second Injury Fund each pay one-half of the costs of this action in accordance with Division of Industrial Services Rule 343-4.33. That defendants shall file claim activity reports, pursuant to Rule 343-3.1(2), as requested by the agency. Signed and filed this 27th day of April, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. Phillip Vonderhaar Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. John M. Bickel Attorney at Law P.O. Box 2107 Cedar Rapids, Iowa 52406 Mr. Charles Lavorato Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 3201 Filed April 27, 1987 ROBERT C. LANDESS BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN A. ALBRIGHT, Claimant, VS. File Nos. 696983/682771 WILSON FOODS CORP., A P P E A L Employer, Self-Insured, D E C I S I 0 N and THE SECOND INJURY FUND OF IOWA, Defendants. 3201 Assessment of industrial disability sustained as a result of a second injury is appropriate only when the second injury extends to the body as a whole. Fulton v. Jimmy Dean Meat Company, Appeal Decision, July 28, 1986. Applying the holding in Fulton to the record, it is found that the employer's liability is limited to the functional impairment of each scheduled member as there is no evidence presented that the second knee injury that claimant sustained extends to his body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MICHAEL PETERS, Claimant, File No. 697708 VS. A P P E A L SWIFT INDEPENDENT PACKING COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ STATEMENT OF THE CASE Claimant appeals from a review-reopening decision denying all compensation because he.failed to establish a causal connection between his work injury and the disability on which he bases his claim. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits 1 and 2. Both parties filed briefs on appeal. ISSUES Claimant states the following issues on appeal: 1. Did the issue of causation from the March 11, 1982, injury become moot by the prior 2% permanent disability payment by the Defendants in this Review-Reopening? 2. Is not the principal issue in the Review-Reopening whether the Claimant has sustained as of this time more than the 2% industrial disability earlier paid by Defendant? 3. Alternatively, whether the Claimant met his burden of proof of showing permanent disability arising from the March 11, 1982, accident. 4. Alternatively, whether the Claimant has sustained greater than a 2% industrial disability from the March 11, 1982, accident. REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately PETERS V. SWIFT INDEPENDENT PACKING COMPANY Page 2 reflects the pertinent evidence and it will not be fully reiterated herein. On March 11, 1982 claimant sustained a work-related injury to his back when a jowl chute fell on his head knocking him to the floor so that his middle back struck a metal stand. Claimant was off work for a period of time before returning to the meat trimming job he was doing before the injury. Claimant states that he bid into a night sanitation job so he could avoid the lifting required in the meat trimming job. Claimant's testimony further indicates that he performed jobs after the work injury which involved long periods of standing, constant repetition, and some lifting (see Tr., pp. 40-46). Claimant had suffered prior back problems in 1975 and 1980. Claimant was symptomatic from 1980 onward and under the care of John P. McCarthy, D.C. Dr. McCarthy treated claimant after the March 11, 1982 work injury. His diagnoses prior to the work injury and after the work injury are similar. John J. Dougherty, M.D., and R. I. Sprague, D.C., also examined claimant. Dr. Dougherty opines that in view of claimant's continuing back problems it is difficult to tell how much of those problems are the result of claimant's injury or just an aggravation of his preexisting problems. Dr. Sprague assigns a functional impairment rating to claimant's back but does not comment on the cause of claimant's back condition. Claimant now works as a rod man for a surveying company in Texas since the defendant-employer's plant closing in August 1985. This job requires claimant to walk and bend more than he had anticipated. Claimant describes his back condition as a dull, constant ache in the low back with sharp pain on lifting. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and evidence. ANALYSIS In his brief claimant argues that causal connection was not an issue at the time of hearing. A review of the prehearing order, prehearing report and order approving same, and the trial transcript reveal that both parties understood that whether there was a causal relation between the alleged injury and the disability was in dispute. Claimant, in bringing this action for review-reopening, is seeking additional benefits. It is claimant's burden to show such an entitlement. Claimant failed to prove that any permanent impairment resulted from the injury on March 11, 1982. The fact that a person has a serious injury does not mean that permanent impairment results. Many serious injuries only result in a temporary condition or a temporary aggravation of a preexisting condition. The deputy analyzed the medical evidence and came to the conclusion that claimant failed to meet his burden in proving a causal connection between his injury on March 11, 1982 and any PETERS V. SWIFT INDEPENDENT PACKING COMPANY Page 3 further benefits. After review of the record, the undersigned comes to the same conclusion. Contrary to claimant's assertions, the greater weight of medical evidence would indicate that any permanent problems which claimant may be experiencing preexisted the March 11, 1982 injury. Such a conclusion is supported by the testimony of Dr. McCarthy, whose testimony is given the greatest weight because of the period of time over which he treated claimant. As indicated by the deputy, the diagnosis of claimant's condition in 1980 and 1984 are remarkably similar. Dr. Dougherty's statement regarding claimant's prior problems lends further support to that determination. Claimant's failure to causally connect his injury with the disability upon which he is basing this claim makes it unnecessary to comment on the question of disability. FINDINGS OF FACT 1. Claimant received an injury arising out of and in the course of his employment on March 11, 1982 when a chute hit him on the head, knocked him to the floor, and hit him on his back. 2. Claimant had had prior back problems in 1975 and 1980. 3. Claimant had been symptomatic and under Dr. McCarthy's care from 1980 onward. 4. Dr. McCarthy's diagnoses for claimant in 1980 and 1984 were remarkably similar. 5. Claimant's injury of March 11, 1982 resulted in no permanent impairment. CONCLUSIONS OF LAW Claimant has failed to established a causal relationship between his March 11, 1982 injury and the disability on which he bases his claim. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing further from this proceeding. That claimant pay the cost of the review-reopening proceeding along with the costs of the appeal. Signed and filed this 22nd day of July, 1987. PETERS V. SWIFT INDEPENDENT PACKING COMPANY Page 4 DAVID E. LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 SiOux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 1108.5-1302.1-1402.50 1803-2905 Filed July 22, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MICHAEL PETERS, Claimant, File No. 697708 VS. A P P E A L SWIFT INDEPENDENT PACKING COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 1108.5 - 1302.1 - 1402.50 - 1803 - 2905 Claimant failed to establish causal connection between injury and claimed disability. Prior back problems. Work after injury no less strenuous. Affirmed. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MICHAEL E. McDANEL, Claimant, VS. File No. 698042 CHEMPLEX COMPANY, A P P E A L Employer, D E C I S I 0 N and THE CONTINENTAL INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding temporary total disability benefits. Defendants have cross appealed. The record on appeal consists of the transcript of the arbitration proceeding; and joint exhibits 1 through 25. Both parties filed briefs on appeal, and claimant has filed a reply brief. ISSUES The parties state the following issues on appeal: 1. Whether claimant's claim was barred by Iowa Code section 85.26. 2. Whether claimant's present disability is causally related to his injury of December 14, 1981. 3. The extent of claimant's disability. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Briefly stated, claimant was 32 years old at the time of the hearing and was employed by defendant Chemplex as a mechanical maintenance worker. While using a wrench at shoulder height on December 14, 1981, claimant felt a pain and a burning sensation in his left shoulder. Claimant testified that he experienced additional pain on March 7, 1982. He was examined on March 17, 1982 by L. H. Barnes, an orthopedic specialist, and found to have left bicipital tendonitis. On that date, Dr. Barnes signed a note stating claimant should not return to work for two.weeks,'and the employer's workers' compensation insurance carrier was notified. An employee manual for Chemplex provides in part: If an injury should occur at work, you are covered by the Workmen's Compensation Law of Iowa which provides for medical and hospital care as well as weekly benefits. In addition, Chemplex will supplement these benefits so that you will receive the same benefits as provided in the Income Protection Plan. (Joint Exhibit 20) Defendant employer filed a first report of injury December 15, 1981. On March 22, 1982, defendant employer filed a revised report indicating claimant had sustained a lost time injury. Claimant testified he left work pursuant to Dr. Barnes' orders. Ronald Reiser, safety manager for Chemplex, testified that at that time Chemplex was involved in a safety program wherein the company was trying to achieve 1,000,000 man hours without a lost time injury. He stated that the company was "very interested" in achieving this goal, and posted a sign by the front gate showing the number of hours achieved. Ronald Reiser also testified that a representative of the company spoke with Dr. Barnes about the safety program, and as a result of that conversation Dr. Barnes revised his statement to allow claimant to return to restricted work. Claimant testified that after six days absence he was requested to return to work and did so. Claimant was paid full salary while off work and testified he was told his medical bills would be paid under workers' compensation. The company achieved its safety goal, and a celebratory dinner was held for the employees, which claimant attended. Claimant continued to experience pain in his shoulder, and this was reported to Dr. Barnes in various appointments occurring on March 17, March 31, April 19, and May 3, 1982. Martin F. Roach, M.D., examined claimant on April 7, 1982 and concluded: Examination of the shoulder reveals he has just about full range of motion, lacks about 5 o full forward flexion. Internal rotation is uncomfortable for him but he does not appear to be in any acute pain .... X-Rays taken in January of this year on Mr. McDanel do not show any significant abnormalities of the glenohumeral joint ... Essentially, these x-rays are unremarkable... X-rays of his shoulder including axillary view are normal. It is my impression that he probably had a rotator cuff strain, maybe has some mild residual tendonitis on the left side. I think a lot of this is functional. McDANEL V. CHEMPLEX COMPANY Page 3 Would send him back to work and tell him that with tincture of time this should improve. Do not anticipate any disability. (Jt. Ex. 9a) Claimant was next examined by John R. McKee, M. D., on April 8, 1982, who stated, in part: "[T]he symptoms are not suggestive of a condition needing surgical repair at the present time but more a matter of rest, physical therapy as needed, and largely a matter of time." (Ex. 10) A report from Doctors Welch and Pontarelli, dated August 30, 1982, concluded: It was explained to the patient that treatment to this point has been proper and complete and that there was nothing else that we could add. It was explained that it was difficult to determine the extent of disability the patient may have in relation to range of motion but stated that whatever residual he had at one year post injury would probably be the full extent of his recovery. (Jt. Ex. 12) Claimant had normal results on both a bone scan and arthrogram in 1982. Claimant had no medical examinations from August 30, 1982 until October 7, 1984. Claimant experienced increased shoulder pain in September 1984. Richard Kreiter, M.D., performed surgery on claimant's shoulder on November 30, 1984. Dr. Kreiter continued to see claimant over the next several months. On November 25, 1985, Dr. Kreiter gave the following opinion: Historically Michael had no disability or problem with his shoulder until the event at work as mentioned in the history. I would feel the progressive problem in the shoulder was there related to the injury. In regard to a disability rating, resection of the distal end of a clavicle gives one a 5% permanent physical impairment, loss of physical function to the whole arm as a result of that surgery. This rating is taken from the Manual for Orthopaedic Surgeons in Evaluating Permanent Physical Impairment as published by the American Academy of Orthopaedic Surgeons. (Jt. Ex. 16) Claimant testified he had no shoulder pain or problem prior to the injury. He also testified he knew of no other incident, work-related or non-work-related, that may have caused his disability. Claimant also testified that his weight lifting and volleyball were in part therapy recommended by Dr. Kreiter, and that none of the doctors recommended he cease those activities. McDANEL V. CHEMPLEX COMPANY Page 4 The parties stipulated that claimant's rate was $267.57. APPLICABLE LAW The arbitration decision cites law appropriate to the issues therein. ANALYSIS Claimant's injury occurred December 14, 1981. Prior to July 1, 1982, an employer's failure to file a memorandum of agreement within thirty days of commencing weekly benefits tolled the statute of limitations under section 85.26(1). The benefits paid to claimant in 1982 were perceived by him to be in lieu of workers' compensation benefits. The employer filed a first report of injury that treated the injury as a lost time injury. The claimant was told his medical bills would be paid by workers' compensation. The company's employee manual provided for full salary payments in the event of a workers' compensation injury. Although the company's policy was to request the signing over to the company of workers' compensation benefits checks when full salary was paid, there is no evidence this was done. This may very well be because the company desired not to record the salary payments as workers' compensation benefits in order to maintain its safety record. Indeed, the company went to the length of requesting Dr. Barnes to change his recommendation on claimant's work status to mask the true nature of claimant's absence from work. Based on what was communicated to him and what the employee manual stated, claimant reasonably perceived his continued salary as workers-I compensation payments. The company's efforts to disguise the nature of those payments in order to maintain a safety record do not change their nature. Claimant was off work for six days in March 1982 and received full salary therefore. These were in the nature of workers' compensation benefits paid. No memorandum of agreement was filed. As this tolls the statute of limitations, his action is not barred. Claimant has the burden of showing that his disability on which he bases his claim is causally connected to his injury of December 14, 1981. Claimant was treated by Dr. Barnes, who referred him to other specialists such as Dr. Roach, Dr. McKee, Dr. Welch and Dr. Pontarelli. Their general consensus was that claimant had suffered a rotator cuff tear and tendonitis on April 17, 1982. Dr. Roach opined that claimant's condition would improve, and that he did not anticipate any disability. Claimant also had a normal arthrogram and a normal bone scan in 1982. He did not visit any of his doctors from August 30, 1982 until October 1984. There are also references in the record to claimant's recreational or nonemployment activities, such as chopping wood, playing softball and volleyball, and weight lifting subsequent to his injury. Dr. Kreiter offered the opinion that claimant's disability was caused by his December 14, 1981 injury. However, Dr. Kreiter's opinion is based on his examinations of claimant McDANEL V. CHEMPLEX COMPANY Page 5 beginning in October of 1984, nearly three years after his injury. Dr. Kreiter's opinion was based on the history provided to him by claimant. Although his opinion refers to claimant's condition as "progressive," the record, in fact, discloses that claimant's condition improved following the injury for a substantial period of time from August 30, 1982 to September or October 1984. Claimant had no need to seek medical attention. During this time, he was engaged in activities that could very well have caused his present disability, such as upper body and overhead weight lifting, and playing sports that involved the exertion of his arm and shoulder muscles, such as volleyball and softball. Significantly, the opinion of Dr. Roach in April of 1982 was that claimant would not suffer any disability as a result of his injury. Dr. Roach's opinion was rendered less than four months after claimant's injury, as opposed to the opinion of Dr. Kreiter, which was given after an intervening period of nearly three years. The opinion of Dr. Roach is therefore entitled to the greater weight. Claimant's normal arthrogram and EMG in 1982 also support the conclusion that he suffered no continuing disability from his injury in December of 1981. Claimant has failed to carry his burden of proving by a preponderance of the evidence that his disability was causally related to his injury of December 14, 1981. FINDINGS OF FACT 1. On December 14, 1981 claimant injured his left shoulder while working for defendant employer. 2. Claimant was off work for six days in March of 1982 as a result of that injury but was able to return to his work. 3. Claimant was paid full salary while off work. 4. Defendant employer had a policy of paying full salary to workers entitled to workers' compensation benefits. 5. Claimant reasonably believed his salary was paid in lieu of workers' compensation benefits. 6. Defendant employer did not file a memorandum of agreement. 7. Claimant was diagnosed as suffering from a possible rotator cuff tear and tendonitis. 8. Claimant had a normal arthrogram and a normal bone scan in 1982. 9. Claimant engaged in weight lifting, volleyball and softball subsequent to his injury. 10. Claimant experienced increased symptoms in August or September 1984. 11. Claimant did not see a doctor in regard to his shoulder from August 30, 1982 until October 1984. 12. Claimant underwent shoulder surgery in November 1984. McDANEL V. CHEMPLEX COMPANY Page 6 13. Claimant's surgery in November 1984 was not causally connected to his injury of December 14, 1981. 14. Claimant's rate of compensation is $257.57. CONCLUSIONS OF LAW 1. Claimant's action for workers' compensation benefits is not barred by Iowa Code section 85.26. 2. Claimant has failed to establish that the injury of December 14, 1981 is causally connected to the permanent disability on which he bases his claim. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants are to pay claimant temporary total disability benefits for point eight five seven (.857) weeks at the rate of two hundred sixty-seven and 57/100 dollars ($267.57). Defendants shall receive credit for benefits paid under its income protection plan. That defendants shall file claim activity reports pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by the agency. That the costs of the arbitration proceeding are charged to defendants and the costs of appeal including the cost of the transcription of the proceeding is to be shared equally by defendants and claimant. Signed and filed this 22nd day of December, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. J. Drew Chambers Attorney at Law P.O. Box 3055 Clinton, Iowa 52732 Mr. Craig A. Levien Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801-1550 2402 - 1108.50 Filed December 22, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MICHAEL E. McDANEL, Claimant, File No. 698042 VS. CHEMPLEX COMPANY, A P P E A L Employer, D E C I S I 0 N and THE CONTINENTAL INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ 2402 Defendants paid claimant full salary while off work for a work-related injury under a company policy providing for full salary as a supplement to workers' compensation benefits. Defendants' subjective classification of such benefits as not being in lieu of workers' compensation, in order to maintain a safety record, did not change their nature. The statute of limitations was therefore tolled. 1108.50 Claimant failed to carry his burden to show his disability was causally connected to his shoulder injury where his first doctor expected his injury to improve and not result in disability, nearly two years elapsed without the need for medical attention, claimant had intervening normal arthrogram and EMG, medical expert testimony as to causal connection was rendered nearly three years after injury and claimant engaged in sports and weight-lifting activities that could have caused his current disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER OSCAR L. MULDER, File No. 698080 Claimant, R E V I E W - vs. R E O P E N I N G GILBERTVILLE MILLING COMPANY, D E C I S I O N Employer, F I L E D and FEB 06 1989 HAWKEYE-SECURITY INSURANCE CO., INDUSTRIAL SERVICES Insurance Company, Defendants. INTRODUCTION This is a proceeding in review-reopening brought by Oscar L. Mulder, claimant, against Gilbertville Milling Company, employer, and Hawkeye-Security Insurance,Company, insurance carrier, defendants, for benefits as a result of an injury that occurred on March 18, 1982. An agreement for settlement under Iowa Code section 86.13 was approved on April 18, 1984 under which claimant was paid $10,393.69 in healing period benefits and $14,199.83 in permanent partial disability benefits and all of claimant's medical expenses were paid as of that date. A hearing was held in Waterloo, Iowa on December 14 and 15, 1987 and the case was fully submitted at the close of the hearing, with one exception. Nancy Meany was present to testify on December 14, 1987, but did not testify on that date. Due to bad weather, Nancy Meany was unable to return to the hearing on December 15, 1987. The industrial commissioner, David E. Linquist, gave permission for Nancy Meany to testify by deposition after the hearing. The record consists of the testimony of Oscar L. Mulder, claimant, Nils R. Varney, Ph.D., clinical neuropsychologist, Brad S. Mulder, claimant's son, Kayla J. Mulder, claimant's wife, Laurence Falk, claimant's neighbor, Chris Ann Marie Boleyn, defendants' daughter, Gerald C. Delagardelle, defendant, and Victor Laughlin, private investigator, joint exhibits 1 through 54, and the Nancy Meany deposition which was taken on December 21, 1987 is marked as joint exhibit 55. Joint exhibit 40, two photographs taken by Nancy Meany were borrowed by defendants' counsel at the time of the hearing to use in the deposition of Nancy Meany. These two photographs were not returned to the record with the deposition and defendants' counsel said that he was unable to find them. Therefore, joint exhibit 40, two photographs, are missing from the record. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the.time of the injury; That claimant sustained an injury on March 18, 1982 which arose out of and in the course of his employment with employer; That the rate of compensation in the event of an award is $146.39 per week; That defendants claim no credits for benefits paid under an employee nonoccupational group health plan or workers' compensation benefits paid after the settlement on April 18, 1984 and before the hearing on December 14, 1987; and, That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained a change of condition after the settlement agreement on April 18, 1984; Whether the injury was the cause of any additional temporary disability; Whether the injury was the cause of any additional permanent disability; Whether claimant is entitled to any additional temporary disability benefits and if so, the nature and extent of benefits; Whether claimant is entitled to any additional permanent disability benefits and if so, the nature and extent of benefits; Whether claimant is entitled to scheduled member benefits or industrial disability benefits, in the event claimant is entitled to additional benefits. Whether claimant is an odd-lot employee; Whether claimant is entitled to additional medical benefits; and, Whether claimant unreasonably refused to accept medical treatment and if so, the effect of that refusal on his entitlement to benefits. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant was 45 years old at the time of the injury and 51 years old at the time of the hearing. He is married and has two adult children. He is a high school graduate and served in the United States Army for one and one-half or two years in Korea At the hearing, claimant testified that he had memory and concentration problems. Therefore, most of the following employment and health information came from his wife's testimony. Prior to this employment, claimant worked for Titus Manufacturing Company for 11 years from approximately April of 1964 until 1975. He began as a laborer. A year later he became a foreman. When the plant closed he was the assistant plant manager and was secretary of the management club. Claimant then worked for Insul-Sound for approximately two years as a foreman and later as office manager. Claimant was unemployed for a period of time and then began work for employer in approximately 1979 or 1980 as a truck driver. In addition to these employments, claimant has farmed his own small home farm of 50 acres of which 35 acres is tillable. Claimant also farmed the land owned by his wife's parents for them. Claimant's wife denied that he had any health problems prior to the injury of March 18, 1982 except: (1) he suffered a severe cut to the right hand while working for Titus Manufacturing Company and lost one-fourth of the grip in the right hand; (2) in 1968 while working for Titus Manufacturing Company, he was taken to Allen Hospital for violent headaches. Claimant's wife testified that it was determined that claimant had high cholesterol and needed glasses, but the main reason for the headaches was an allergic reaction to chocolate. Claimant's wife testified that prior to this injury claimant danced, fished, hunted, camped, snowmobiled and played basketball regularly. On March 18, 1982, claimant was unloading bulk feed into a customer's bin when the power shaft broke and flew out and struck him in the left leg. Claimant's wife testified that she saw him in intensive care and that claimant said he hurt his leg and his head. She saw that his leg was red above and below the knee and she observed swelling on his temple on the right side of his head. She testified that claimant was conscious, but incoherent, confused and had to be restrained. She said claimant did not recall going to the hospital. Claimant's wife related that when he came home from the hospital, he was unusually confused, quiet and moody. He complained a great deal about his leg and received no more treatment for his head. Claimant testified that he remembers leg pain and severe headache pain in the hospital. He testified that he does not remember coming home from the hospital. Claimant testified that when the pain in his head went away, his memory went away too. Claimant's wife testified that his leg got progressively worse up until the time of the settlement, but that he had no headache or right temple pain. The settlement was approved on April 18, 1984. Claimant testified that he remembers the conference when he settled his case. He and his wife were there. When it was or what attorney represented them, he does not remember. Claimant averred that he gets upset easily with people. Claimant's wife testified that he has grown more quiet, tried to work around the farm with the hogs and the garden, but never returned to work for employer and has not sought any other employment. It was asserted that all claimant can do now is to feed the chickens and gather the eggs. He tries to help his son mow the yard. In the house, all he can do without direction from his wife is to do the dishes. He tries to help in the garden but just sits on his hands and knees and pulls grass. He has no memory for dates, names and places. His wife gives him written lists of what he is supposed to do and puts appointments on a large calendar for him. Claimant drives short distances to town and back, but gets confused on long trips. Claimant and his wife did take a long vacation trip to Canada after the settlement. Claimant used to know how much seed and fertilizer to order, but now he cannot remember. He used to manage the family finances and write the checks, but now his wife has to do it. He used to be able to work on the equipment, but now he cannot figure it out. He cannot remember how much oil to put in the vehicles on an oil change anymore. He has to be reminded to bathe. He cannot smell anything since the accident and has lost the sense of taste. Claimant's son lives at home and has to help him with anything that requires thinking. Most of claimant's responses to questions on direct examination and cross-examination were "I don't know," "I don't recall," and "I don't remember." Claimant's wife testified that after the settlement he became less active, quieter, talked less, avoided making decision and stayed in the house more, close to her. He forgot things and blamed her. He refused to handle the finances. He became ill-tempered and they had disagreements. He would lose his temper, have mood swings, then forget his bad conduct. Claimant's wife said that he has had vision changes, changed his glasses twice and has to change them again soon. Claimant's wife said that he did not renew the lease on her parents' farm and he did not even want to talk about it. He loses things, like the planter book. He forgot her birthday. He gets mad and loses patience with other drivers when he tries to drive on a long trip. He cannot find his way without directions and help from her. He is very dependent upon.her. He got his clothing caught in the PTO once and had a very close call which only scraped his right knee. Claimant's wife testified that she works with brain-damaged, learning disabled children and she sees the same things in her husband that she sees in them. His attention span is about twenty minutes. When he stands up, he puts out his right leg first, then guards the left one from pain when he walks. He is not able to bend or stoop. When their son required brain surgery in 1980 after a motorcycle accident, she had to sign the papers because claimant went to pieces. Claimant testified that he could not operate his red International tractor with a left foot clutch due to the condition of his left leg. The John Deere tractor has a hand clutch and he can operate it. Claimant testified that he can stand only about three minutes without a cane. He said he can stand 10-15 minutes with a cane. Claimant said that he falls down a lot due to his left leg. He said he can walk only 100 feet with a cane. He cannot run at all. He said that he has mowed with the John Deere tractor, but not for very long. Claimant denied any back problems, head problems or left leg problems prior to this injury on March 18, 1982. Claimant testified that he takes four pain pills now, but that he does not take any nerve medication. Claimant admitted that he did take a nerve medication after his daughter left home and he admitted that he was very upset at that time. Claimant admitted that he has not had.any medical treatment for his leg since 1983 and for his head since 1982, except for pills prescribed by his personal physician, R. N. Bremner, M.D., for headache. Claimant testified that he called employer once about returning to work, but he does not remember what employer told him. Other than that, he has not applied for a job any place. He has not looked in the newspaper and he did not go to Job Service looking for a job. He did apply for Social Security disability. Claimant's wife testified that claimant is unable to work. Their son, Brad, does work. They hire custom work. They rent a house to Laurence Falk even though this does not appear on their 1986 income tax return. Claimant gave a deposition on July 13, 1987. In this deposition and at the hearing, he said that he had to walk with a cane to keep from falling down (exhibit 37, page 40). He said that he cannot lift more than 20 pounds, can walk only 100 feet and can drive for only about two hours (exhibit 37, pages 11-15). He can no longer play basketball, hunt, fish like he used to, dance, go to sales or auctions, play horseshoes, ride horseback or sit through a movie. He cannot drive a car, truck or tractor that requires a clutch and he cannot do field work (exhibit 37, pages 15-20). He said he cannot smell or taste. He has difficulty speaking or thinking. He said that he is no longer able to buy or sell or to handle financial matters. He cannot figure out how much fertilizer or herbicides to apply to the fields. He is forgetful. He is losing his hearing and his vision. He has changed his glasses twice in one year (exhibit 37, pages 20-25). He said that he involuntarily kicks his left leg in his sleep. Social gatherings make him nervous. He is irritable and cries easily. He worries a lot and is anxious (exhibit 37, pages 25-30). Claimant did not tell his doctor about his memory and thinking problems when his leg was being treated because they did not bother him then. Claimant testified that these problems started two years ago (exhibit 37, pages 32 and 33). Two years prior to the deposition date would be July of 1985. Claimant said that the nurse discovered a big bump on the side of his head when his leg was treated (exhibit 37, pages 33 and 34). Claimant stated that he was taking no medication for his head injury (exhibit 37, page 39). Claimant testified that the only work he can do now is to feed the chickens and to work in the garden (exhibit 37, pages 40 and 41). He admitted that he had not made any job applications since March of 1982, he had not looked in the classified advertisements and he had not contacted Job Service (exhibit 37, page 42). He said that employer had never contacted him about returning to work (exhibit 37, page 47). Claimant's wife also gave a deposition prior to hearing on July 13, 1987 in which she generally corroborated claimant's testimony. She said that claimant's loss of smell became more pronounced three or four years ago (exhibit 36, page 13). Three years ago would be July of 1984 and four years ago would be July of 1983. She said that claimant's eyesight is getting worse, he suffers headaches, loses patience, sleeps restlessly and turns and kicks a lot in his sleep. She said that his family physician prescribed Xanax for his nerves after their daughter ran away from home on Labor Day in 1983, but he never took all of that prescription and has not taken any of these pills since then (exhibit 36, pages 16-18). Claimant's wife testified that the personality change occurred in the last two years. Two years prior to the deposition would be July of 1985. She said the loss of memory and lack of decision-making occurred back in 1982 (exhibit 36, page 24). Bradley S. Mulder, claimant's son, testified that he is age 24 and lives at home with his parents. He was last employed on October 1, 1987. He terminated that employment in order to help out at home because his dad could not handle the farm. He testified that he has worked with claimant a lot before he was injured and previously they have hunted and fished together. He saw his dad in the hospital. There was no visible head injury and he had no head pain. When he came home from the hospital, he had leg pain, trouble sleeping and had to walk with a cane. Since his father settled the workers' compensation case, his condition is the same except for his memory loss, which he noticed a short time later. The witness testified that, on mechanical matters, claimant could not remember what part went where or how to change oil in the tractor. The son said that he has done the farming of the home place for the last couple of years. He stated that his dad watches, or runs errands, but does not get involved. He added that claimant only does things that do not require thinking. He said that claimant changes his mind often and forgets things. The witness said that he is responsible for the chickens, but that claimant feeds and waters them. Claimant's son testified that he is responsible for the garden and runs the roto-tiller. His dad gardens on his hands and knees, tries to help, but loses his concentration. The witness said that claimant is around in the summer, but cannot do much because his leg tires in 20 minutes and he has to sit down. In the winter he stays in the house and comes out only occasionally to feed the horse. He said that this past March, claimant got on the John Deere tractor and started it up one or two times to warm it up, but he does not drive it. He said that he plans to stay at home and continue to help out because he believes that some day it will be his place, however, he might also leave at some future time. Chris Ann Marie Boleyn testified that she is the daughter of Gerald Delagardelle, the defendant in this case. In recent years, she has-worked at three business establishments that claimant has patronized and that she has had the opportunity to observe him on a number of occasions. When she worked at the Gilbertville Mini-Mart from October of 1980 to June of 1984, she saw claimant come in and buy gas. Boleyn testified that claimant did not use a cane and claimant did not limp. It was her opinion that he did limp after he saw her and identified her. She testified that she worked at the Family Mart from June of 1984 to July of 1986, but she did not recall seeing claimant while she was employed there. However, she did see claimant outside of her job driving his truck on the road. She stated that she worked at Bradfields Jack and Jill Store beginning in September of 1986. She stated that she saw claimant there once with his wife in October of 1987. She stated that claimant walked without a cane at that time. On cross-examination, she admitted that she had not seen claimant much in the last couple of years. Gerald C. Delagardelle testified that he is age 62 and employed by Gilbertville Milling Company, Inc. Claimant never asked to be reemployed by employer. He understood claimant could not work at all after the injury, but he observed him shingling the roof of his house and he photographed him on the roof with two other men on October 18, 1983. Also, on June 14, 1984, he photographed claimant driving his tractor hauling a load of grain to town (exhibit 39). He testified that claimant was driving the red International 556 tractor with the left foot clutch. Delagardelle also testified that he has observed claimant several times driving his tractor or his pickup truck alone in 1985 and in 1986. The witness stated that he lives near the claimant's home, that claimant has to drive past his house and that he saw claimant four or five times in 1983 and 1984 hauling grain with the red International tractor which requires the left foot clutch. Delagardelle said that, in 1983, prior to the settlement, he saw claimant plowing a field that claimant rents from nonrelatives. Delagardelle's son-in-law reported to him that he saw claimant roto-till his garden a year ago in 1985. Delagardelle said that his wife reported to him that she saw claimant repairing a door on his rental house and that she saw him run across the yard and back in 1987. Delagardelle testified that claimant had a concussion in 1981. He reported it on workers' compensation, but claimant was probably not off work long enough to be paid. Delagardelle testified that he has seen claimant driving frequently. He also saw him carrying his grandchild across the bank parking lot without a limp and without a cane, but he does not recall when that was. Delagardelle acknowledged on cross-examination that he saw claimant standing on his roof, but he did not see him shingling. He saw a ladder at the front of the house, but he does not know how claimant got up on the roof. He stated that he did not terminate claimant's employment. Claimant just did not come back to work. Delagardelle granted that no vocational rehabilitation was offered, but that he had no control over that as the insurance company was the one who would handle that. He admitted that he did not try to reemploy claimant. Laurence Falk, who rents a house on claimant's property, has been a neighbor for approximately one and one-half years and he shares the same driveway with claimant. He testified that claimant's ability to farm is limited. He testified that claimant's son, Brad, does the work. Claimant basically feeds the chickens, waters the horse and mows the lawn and that takes him all day. Claimant cannot do much physically. He limps and lacks mobility. Witness has had to help him on and off his horse. He testified that claimant is forgetful, changes his mind often, gets angry easily and is becoming increasingly more aggressive. He does walk without a cane sometimes to the barn and to the chicken house. Victor Laughlin testified that he has been a private investigator since 1978. It was stipulated that he is a qualified private investigator and also a professional photographer. He understands that he is to report what he sees and not give his opinions. He carried out surveillance on claimant in August of 1986 on three separate dates and took photographs. Exhibit 38 contains 56 photographs and exhibit 54 contains three photographs taken by Laughlin. Laughlin testified that, at 9:00 a.m. on August 4, 1986, he approached claimant's farm by way of a wooded area, a swamp and some tall trees. At approximately 10:00 a.m., he observed claimant get on a tractor, start it up and mow a very large field which was approximately 150 yards long and 150 yards wide (exhibit 54). Laughlin testified that claimant mowed this field for approximately two and one-half hours from approximately 10:00 a.m. to approximately 12:30 p.m. He stated that claimant drove the John Deere tractor with the hand clutch. Laughlin said that claimant then moved to another area, mostly out of sight, at the top of a hill and mowed up there. Laughlin also stated that claimant cleaned up some junk and debris like some old tires, a roll of fence wire and some boards on the ground near the garage and near the house. Laughlin stated that claimant bent over, picked these items up, lifted them up and placed them over the fence onto the other side without apparent difficulty so that he could mow that area. The private investigator also took several photographs of claimant working in the garden with his wife for approximately 30 minutes. In the photographs, claimant is bending over, stooping down on his right knee, kneeling and carrying buckets of produce. He threw vegetables out of the garden. He carried pails in the garden and picked tomatoes. He picked up pails full of corn and carried the pails for approximately 100 yards. He got down on all fours and was digging in the garden (exhibit 38). Laughlin testified that, during all of these activities, claimant did not limp or need a cane or any supports of any kind to stand or walk. Laughlin testified that claimant walked up and down the steps to his house without any difficulty at all. He said claimant had no balance problems. He said claimant did not have to grab his knee. He testified that claimant did not appear to be in any pain. Laughlin testified that claimant walked like a normal person. Laughlin added that claimant did not appear to be mentally handicapped in any manner. The witness stated that he returned to claimant's farm on August 7, 1987, but did not observe claimant on that date. The witness then returned to claimant's farm on August 11, 1987 and was setting up to take pictures when he was attacked by claimant's dog. Laughlin told claimant's son that he was a member of the Audubon.Society and that he was there to photograph woodpeckers. The detective testified that he called his wife on his two-way radio to,pick him up. Claimant and his son then chased Laughlin's wife in her van. Laughlin's wife reported to him that claimant tried to run her off the road and pointed what.appeared to be a gun at her. This was the end of the surveillance. On rebuttal, claimant testified that he first got a cane in the winter after the injury because he needed it for balance, security and support; but sometimes he walked without a cane or left it in the car or at home. Claimant's wife testified that she called Dr. Bremner and asked for a cane for claimant after the summer of 1985, when claimant fell after he sawed tree limbs. She testified that she felt he would need it for better footing in the winter. She paid for it because workers' compensation would not pay for it since she did not have a doctor's prescription for the cane. The medical records show that Philip E. Rohrbaugh, M.D., reported that claimant got hit in the left side with a metal object, fell down and in the process, hit his head against a truck. He was admitted to the CCU unit at St. Francis Hospital on March 18, 1982 for three days for a contusion of the left knee, sprain of the left thigh, injury to the left leg with nerve injury and head trauma (exhibit 1). On June 10, 1982, Ashok Nakhasi, M.D., a board-certified neurologist, reported that he saw claimant on April 9, 1982. He said claimant was injured on March 18, 1982 at which time claimant reported pain over the left eye, pain in the left lower quadrant of the abdomen and left thigh tenderness. Extensive x-rays were normal. He saw claimant again on May 7, 1982. Dr. Nakhasi said that claimant's neurological examination was normal except for decreased strength of the dorsiflexors of the left ankle. Motor strength, DTR and plantar reflexes were normal. He said claimant did have sensory symptoms and numbness of the plantar aspect of the left foot, however, there was no objective abnormality and no further investigation was advised (exhibit 3, page 1). The St. Francis Hospital clinical history dated March 18, 1982, states that there is a past history of one episode of loss of consciousness. Claimant was hospitalized and the initial workup was negative. He had not had any further episodes after that (exhibit 3, page 2; exhibit 41, page 2). Dr. Nakhasi reported again on June 24, 1982 that claimant complained of tingling in the distal plantar aspect of the left foot and pain in the left knee when standing from sitting. Physical examination revealed that strength in all muscle groups in both upper and lower extremities was within normal limits. Reflexes were normal. Sensory exam to position, vibration and pin were within normal limits. Dr. Nakhasi said that claimant's minimal sensory symptoms were not disabling and said that claimant could return to normal work (exhibit 4). Claimant was sent to the University of Iowa Hospitals and Clinics on August 5, 1986 for severe pain and weakness in the left leg which prevented claimant from working since the date of the accident on March 18, 1982. Heat medication, and TENS had not helped. E. Peter Bosch, M.D., of the department of neurology examined and evaluated claimant. He said that nerve conduction studies of the peroneal, tibial and sural nerves were normal. Needle EMGs revealed no denervation. Orthopaedic consultation found no cause for patient's pain. Dr. Bosch concluded that it was his impression that claimant did not have a neurologic injury. Claimant declined to be seen at the pain clinic (exhibit 5, pages 1 and 2; exhibit 47, pages 14 and 15). Claimant was examined by Michael Z. Piburn, Jr., M.D., of Psychological Medicine Associates who said on September 8, 1982 that claimant reported numbness and diffuse weakness in his left leg that prevented him from working because he could not operate a clutch to drive a truck. Claimant also complained of insomnia and left leg thrashing at night and also left leg restlessness during the day. Dr. Piburn said that claimant had a legitimate pain syndrome related to the accident of March 18, 1982 (exhibit 6). Dr. Piburn reported on September 13, 1982 that he felt claimant may have causalgia from the severe blow even though his neurological examination was normal (exhibit 7). Dr. Piburn reported on three different occasions that claimant was opposed to a sympathetic nerve block. He said that unless claimant has some treatment with a sympathetic nerve block, he would not be able to tell how reversible his pain is (exhibit 9). On December 6, 1982, Dr. Piburn said that, unless claimant improves, he will be limited in walking and standing ability and will not be able to use his left leg to use a clutch or brake on a motor vehicle. He said that claimant should not lift more than 20-25 pounds or do anything to cause him to squat or kneel. Dr. Piburn said that, if claimant undergoes sympathetic nerve blocks, he may improve more. If claimant does not undergo sympathetic nerve blocks, then he has reached maximum medical improvement. Dr. Piburn added that the idea of sympathetic nerve blocks frightens claimant so badly that he did not know if he could undergo them (exhibit 10). On January 11, 1983, Dr. Piburn rated claimant with a 30% functional loss of the entire lower left leg which he said would correspond to 15% of the total body (exhibit 11). Dr. Rohrbaugh, claimant's personal physician and family physician who practices with Dr. Bremner, succinctly summarized his care of claimant for this injury from April 2, 1982 for several visits to September 7, 1982. At that time, his opinion was resolving contusion of the left lower extremity with persistent pain, paresthesias and painful limb syndrome. He said he referred claimant to Dr. Piburn for pain control as recommended by the University of Iowa (exhibit 12). Claimant was examined for defendants by Arnold E. Delbridge, M.D., an orthopaedic surgeon, on February 9, 1983. He diagnosed pain in the left lower extremity. He said claimant had a 13% impairment of the total man (exhibit 13; exhibit 46). On September 19, 1983, Dr."Delbridge told claimant's counsel that appropriate treatment, other than mild exercise, has never been attempted because this gentlemen would not consent to it. Therefore, in his opinion this mitigates against a very high impairment rating. He noted that claimant was initially examined for head injury and abdominal injury from which he had a good recovery (exhibit 14). Claimant settled this claim for the injury on April 18, 1984 pursuant to Iowa Code section 86.13 and was paid for 71 weeks of healing period benefits in the amount of $10,363.69 and for 97 weeks of permanent partial disability benefits in the amount of $14,199.83 based upon an industrial disability of 19.4% and a rate of $146.39 per week. Defendants also paid all reasonable and necessary medical expenses at that time. The settlement was approved on April 18, 1984 (exhibits 15 and 16). Claimant then filed this original notice and petition for review-reopening on July 19, 1985. The next event was that claimant saw Nils R. Varney, Ph.D., a board-certified neuropsychologist on August 3, 1985. He administered several psychological tests. He reported that claimant had problems with language, concentration and memory retention. He also noted depressive symptoms which include dysphoria, insomnia, anergia, irritability, crying spells, suicidal ideation, diminished sex drive and indifference to previously preferred activities. Dr. Varney reported: Mrs. Mulder reports a full array of psychosocial symptoms of a type typical in patients with orbital frontal damage. These include absentmindedness, indecisiveness, poor planning and anticipation, an inability to carry through tasks once they are initiated, non-spontaneity, perplexity responses, irritability, poor impulse control, limited insight and empathy, over-reaction to pressure, and impolitic social behaviors. (Exhibit 17) Dr. Varney's impression was: (1) language diminution, (2) psychological defects typical with frontal orbital damage, and (3) organic affective disorder. Dr. Varney indicated that medication could possibly improve his depression. He concluded by saying that claimant was totally disabled (exhibit 17). The next event was that claimant saw Lawrence Rinder, M.A., on April 1, 1986 for a psychological evaluation requested by the Social Security Determination Services. Mr. Rinder performed many of the same tests that Dr. Varney performed. Claimant reported to Mr. Rinder that muscles and nerves in his leg give out when he walks, he lost the sense of smell and hearing, he has trouble with his eyesight, his memory is gone, he has headaches and does not sleep well at night. Mr. Rinder concluded as follows: There is a possibility of some brain damage, but certainly this man is having problems with both immediate and remote memory. He is an anxious, depressed individual which may be effecting [sic] his memory. His judgment is fair. He has problems in organizing his thoughts and planning for the future. He operates primarily on a trial and error basis, although it is possible that in the past he was better organized than he is now. (Exhibit 18) Claimant then saw N. S. Pangilinan, M.D., a psychiatrist, on April 7, 1986 relative to the Social Security disability determination. Dr. Pangilinan said that the psychological testing available for his perusal, Mr. Rinder and Dr. Varney, did indicate organicity or brain damage, indication of intellectual decline and cognitive impairment of this man. He said that this man claims memory and concentration problems, his wife has to make decisions for him, loss of sense of smell, persistent blurriness of vision and difficulty hearing. Dr. Pangilinan concluded as follows: DIAGNOSIS: Dysthymic disorder or chronic reactive depression. Organic brain syndrome due to head injury. Causalgia. IMPRESSIONS AND RECOMMENDATIONS: From a psychiatric point of view, I believe that he does have a severe impairment in the form of an organic brain syndrome which has effected [sic] his intellectual functioning, cognitive and concentration abilities. Also, I do think that this man continues to be situationally depressed (secondary depression), because of continuing realistic stresses (chronic pain, loss of self-esteem due to unemployment, financial or economic stresses, etc.). Further, it appears that he, in fact, is suffering from a great deal of discomfort due to continuing discomfort in his left lower extremity (causalgia). If awarded benefits I feel that he is capable" enough to manage the benefit payment son (sic) his own behalf. (Exhibit 19) Claimant was awarded Social Security disability benefits and was examined again for a review of his disability status by Dr. Pangilinan on September 4, 1987. The.doctor said that claimant's problems started with an accident in March of 1982. Claimant reported that his leg, memory and concentration problems persisted and were getting worse and since the last examination, he had developed more persistent low back pain. Claimant asserted that he continued to have nervousness, depression, no sense of smell, blurriness of vision and a poor sense of taste. Claimant demonstrated to Dr. Pangilinan a list of analgesic, anti-inflammatory and anti-infection medications that he was taking. The list also showed Xanax which is an anti-anxiety agent. Dr. Pangilinan finished his report as follows: My diagnostic impression continues as Dysthymic disorder or Chronic reactive depression and organic brain syndrome probably due to head injury. Also, causalgia and low back pain. It is my opinion that he continues to be impaired physically and psychiatrically as far as the issue of return to work. If his benefits continue, I feel that he is capable of managing the benefit payments on his own behalf. (Exhibit 20) Dr. Varney gave a deposition on January 21, 1986 that supports his earlier written report (exhibit 21). In this deposition, he stated that he had testified on legal claims so many times that he had lost count. He estimated it at 75-100 times. He said that he testified for claimants as opposed to defendants at least 4-1 times (exhibit 21, page 90). Roger Marquardt, a private vocational rehabilitation consultant, testified by deposition on December 7, 1987 that he saw claimant on September 11, 1985 for his Social Security disability claim. He said that he saw claimant again on December 7, 1987. Claimant told him that his ability to concentrate had gotten worse, his vision was worse (he was changing glasses twice per year), his leg was worse, his hearing had decreased, his headaches had increased, arthritis was setting in and causing him low back pains, his motivation was gone, he expressed daily loss of memory (exhibit 24, pages 11-14). Marquardt opined that, due to the condition of physical and psychological impairments, claimant could not return to his past work, could not use past skills in alternative work and could not perform simple, routine, repetitive unskilled work. He stated claimant was not competent. He is actively unemployable (exhibit 24, pages 15-16, 20-22 and 33-36). Claimant first filed an application for Social Security benefits on December 8, 1983 even prior to the settlement on April 18, 1984. This claim was denied and claimant did not pursue his appellate rights. Claimant filed a second application for Social Security disability benefits on January 21, 1985. This claim was denied, defendant appealed, the opinion of Dr. Pangilinan was then requested and claimant was granted Social Security disability benefits on June 12, 1986. This determination considered all of claimant's health factors and also entitled claimant to Medicare coverage for medical expenses. Claimant saw Michael J. Taylor, M.D., a board-certified psychiatrist in Des Moines, at the request of defendants on September 11, 1986. Dr. Taylor noted that claimant was severely depressed, but that he had received no treatment for his depression and that he would quite clearly benefit from treatment. Dr. Taylor proposed a course of treatment in the hospital for approximately 21 days where claimant could be observed and treated with antidepressant and possibly Tegretol which Dr. Taylor believed could best be accomplished ideally and most quickly at his hospital, Iowa Lutheran Hospital in Des Moines. He added that this man's ability to make decisions is greatly influenced by his depression. He said that he was concerned that, left to his own devices, claimant would continue life as it is because of his hopelessness (exhibit 50). Claimant refused this treatment (exhibits 25 and 26),. Claimant stated that his reason for refusing Dr. Taylor's treatment was as follows: Q. Is there any particular reason you didn't want Dr. Taylor to treat you? A. Yeah. If my records were good enough -- good enough for him to read and diagnose me from the doctors I saw up here, then the doctors up here ought to be good enough to treat me. (Exhibit 37, page 36) Dr. Taylor gave a deposition on August 13, 1987. He stated he is board-certified in psychiatry and has practiced in Des Moines since 1976 at Mercy, Methodist and Lutheran Hospitals. He previously taught for two years at the University of Iowa and currently gives lectures at several hospitals. Dr. Taylor stated that he examined a large volume of medical information on claimant before he examined him on September 11, 1986. This data included medical reports from Dr. Piburn, Dr. Varney, Mr. Rinder, Dr. Pangilinan, and Mr. Marquardt. He said that claimant and his wife were very bitter and frustrated. Claimant himself was very hopeless about his situation and his hopelessness seemed to greatly influence his decision-making process as far as getting any treatment for what he was experiencing.. Dr. Taylor took a history from claimant, questioned claimant about different psychiatric signs and symptoms that claimant had experienced, and then gathered information from claimant's wife which confirmed the information supplied by claimant. He did not perform tests because he had the test results available to him done by Dr. Varney and Mr. Rinder. Dr. Taylor related that he thought claimant was so depressed and so hopeless at the time he saw him that it would be a waste of money to perform any more tests at that point in time, given the severity of his depression and attitude (exhibit 27, pages 1-10). Dr. Taylor diagnosed a major depressive disorder. There were some indications of organic brain syndrome, but the testing was not thorough enough and it was so clouded by depression that it was not possible to rule in or rule out the existence of brain damage at that point (exhibit 27, page 11). Dr. Taylor thought that the first step was to remove the depression and to give claimant some hope for a better life through antidepressant medications that can be monitored most effectively during hospitalization. Then, if there were residual symptoms of head injury, Tegretol could be administered for organicity. Dr. Taylor also suggested a 24-hour EEG. This psychiatrist stated that, without this treatment, it was not possible to determine the extent to which claimant is impaired by any organic brain damage or to determine his employability (exhibit 27, page 11-16). Dr. Taylor generally agreed with Dr. Varney's diagnosis, but he disagreed with Dr. Varney's prognosis because there was not nearly enough information to make a prognosis. Claimant and his wife told Dr. Taylor that these difficulties began two or three years ago. Since claimant was examined on September 11, 1986, that would mean these difficulties began in September of 1983 or September of 1984 (exhibit 27, pages 11-17, 30). Dr. Taylor testified that he and the psychologists that he worked with disagreed with Dr. Varney's testing methods. Dr. Taylor said that he and other psychologists he has worked with have found Dr. Varney's methods disconcerting. They seem to be relatively haphazard using portions of tests. Therefore, he did not have a great deal of confidence in the conclusions arrived at by Dr. Varney based upon his testing (exhibit 27, pages 16, 23-24). Dr. varney did admit that he skipped portions of tests in his procedures (exhibit 21, page 20). Dr. Taylor agreed that loss of sense of smell was a symptom of a closed head injury (exhibit 27, page 24). He also admitted that loss of sense of smell indicates there is some organic brain damage, assuming that there is in fact a loss of the sense of smell (exhibit 27, page 29). Dr. Taylor testified that the depression was caused by the injury (exhibit 27, pages 29 and 30). Dr. Taylor agreed with claimant's earlier doctors about the left leg injury. The EMG was normal, muscle strength was normal, there was no neurologic impairment, and they hypothesized that his problem was causalgia (exhibit 27, pages 30 and 31). This psychiatrist agreed that claimant might be paranoid about treating with defendants' doctor after he discovered the surveillance that defendants had done at his home (exhibit 27, page 33). Dr. Taylor testified that he is convinced that claimant can get significantly better with treatment. He agreed that Dr. Hines at Ottumwa or Dr. Nieman at Iowa City would be acceptable physicians (exhibit 27, pages 34 and 35). Dr. Taylor also agreed that it is possible that claimant had an organic situation, and if he did it is possible that it springs from this accident. Dr. Taylor replied "Yes. That's my best guess." (exhibit 27, page 35). He also agreed that claimant was not capable of working at -the time he saw him (exhibit 27, page 35). Dr. Taylor said that he disagreed with Dr. Varney's tendency to jump to the conclusion that, if there is a loss of sense of smell, then there must be extensive neuropsychological damage (exhibit 27, page 37). He said that all of claimant's symptoms, except the loss of sense of smell, could be explained by either depression or by head injury (exhibit 27, page 38). Claimant, and it appears his attorney also, refused to treat with Dr. Taylor (exhibit 29), but they did agree to take the same treatment from Dr. Pangilinan (exhibit 30) or Dr. Verduyn, a head injury specialist at Waterloo (exhibit 31). Claimant's attorney said that he would make an appointment with Dr. Verduyn at the Head Injury Clinic in Waterloo on April 7, 1987 and that claimant will be treated there (exhibits 32 and 33). There is no record that such treatment was arranged or that it ever occurred. Dr. Varney did send claimant to Marc E. Hines, M.D., a neurologist at Ottumwa on September 24, 1987 for 24-hour EEG which was normal and disclosed no abnormalities (exhibit 34, pages 1-4). Gene Yagla, an attorney who defended claimant's employer, Gerald Delagardelle, on a third party action brought by claimant for gross negligence arising out of this accident, testified that he observed claimant at a deposition and also at a later time in a restaurant. At the deposition, claimant was in pain, complained of leg discomfort and had to stand and sit down from time to time. He later observed claimant in a restaurant with his family and friends. In the restaurant, claimant walked about without a limp and without using his cane. Yagla said that after claimant recognized him, he began to limp and he began to use his cane (exhibit 43). Claimant was hospitalized from July 19, 1968 to July 23, 1968 due to severe pain in the neck. He was walking across the floor and suddenly felt a sharp blow in the back of his neck. His vision became blurred, he lost strength in his right hand, and had headaches. Several tests were performed, but no definite diagnosis was made. An aneurysm was suspected. Claimant was advised to have further studies done (exhibit 47, page 51; exhibit 53, pages 1-6). Delagardelle testified that claimant also had a concussion head injury in 1981 at work. He lost only three days from work, however, and therefore no workers' compensation benefits were paid. Nancy Meany testified that she is the daughter of Delagardelle. She has observed claimant several times running his tractor. She identified two photographs of claimant which she took which showed him plowing a field (exhibit 40). Attorney for defendants took these two photographs to use when taking Meany's deposition, but they were not returned to the file when the deposition was sent to the industrial commissioner's office. Defendants' attorney wrote a letter on January 29, 1989 that, after a diligent search with all possible sources, he has not been able to locate these two photographs. Dr. Varney testified at the hearing that frontal lobe injuries cause memory troubles, depression and partial complex seizures. They can also cause loss of sense of smell and taste and diminished spontaneous thinking which results in fewer decisions made and fewer activities accomplished. These patients become frustrated, irritable and paranoid. Their spouses feel abandoned as the patient becomes more and more dependent. Dr. Varney said that it was ordinary for the gradual onset of symptoms to not become fully manifested for as long as two years (transcript, page 17 ). Dr. Varney testified that claimant was totally disabled as a result of his neuropsychological symptomatology and deficits (transcript, page 21). Dr. Varney agreed with Dr. Taylor that claimant was very depressed. Dr. Varney disagreed with treating claimant with antidepressant medication. He thought that Dr. Taylor's recommendation to treat the depression first with antidepressant medications would be dangerous. He stated that claimant had a frontal lobe injury and still would not employable even if he did not have the seizures which he said claimant was having. Dr. Varney said that the injury of March 18, 1982 was the cause of claimant's head injury (transcript, pages 22-26). APPLICABLE LAW AND ANALYSIS Iowa Code section 86.14(2) provides for a review-reopening when the condition of the employee warrants an end to, diminishment of, or increase of compensation subsequent to a prior award or settlement. The operative phrase in review-reopening is "change of condition." Lawyer and Higgs, Iowa Workers' Compensation Law and Practice, section 20.2. The proponent must sustain the burden of proof by a preponderance of the evidence of a change of condition as a result of the original injury. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959) The employee must prove, by a preponderance of the evidence, that the increase in incapacity on which he bases his claim is the result of the original injury. Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 993-994, 119 N.W.2d 751, 753 (1963); Henderson v. Iles, 250 Iowa 787, 793-794, 96 N.W.2d 321, 34 (1959). If there is substantial evidence of a worsening of condition not contemplated at the first award, then a review-reopening is justified. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A change of condition may be something other than a physical or a medical one. A change in earning capacity, subsequent to the initial award, caused by the original injury can also constitute a change of condition. Blacksmith v. All-American,Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). A redetermination of the condition of claimant as it was adjudicated by a prior award is inappropriate. Stice, 228 Iowa 1031, 1038, 291 N.W. 452, 456; Sheriff v. Inter-City Express, 34th Biennial Report of the Industrial Commissioner, 302 (App. Decn. 1978) (District court affirmed). Claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained a change of condition with respect to his left leg injury. There is no new medical treatment, no new medications, no surgery, no increase in impairment, no change in claimant's economic condition, no new medical reports or medical evidence concerning the left leg after the settlement of April 18, 1984. Claimant did not describe a worsening of his condition of the left leg, but rather his complaints about the left leg were generally the same as before the settlement. In conclusion, claimant did not prove either a medical or a nonmedical change of condition with respect to his left leg injury after the settlement on April 18, 1984. Claimant did sustain the burden of proof by a preponderance of the evidence of a change of condition in that he suffered a major depression caused by an injury to his head which occurred in the accident of March 18, 1982. The first psychiatrist to see claimant, Dr. Pangilinan, found on two occasions, April 7, 1986 and again on September 4, 1987, that claimant had chronic reactive depression. Dr. Pangilinan did not specifically state that this condition was caused by the accident that occurred on March 18, 1982; but that is the history he used, he proceeds on that basis and no other cause is suggested in his reports (exhibits 19 and 20). The second psychiatrist, Dr. Taylor, also diagnosed a major depressive disorder (exhibit 27, page 11). He said that claimant's depression was caused by this injury (exhibit 27, pages 29 and 30). Dr. Taylor said that Dr. Varney's testing was some indication of organic brain syndrome, but that the testing was not thorough enough and that claimant's condition was so clouded by his depression that it was,not possible to, rule in or rule out the existence of brain damage at that point (exhibit 27, page 11). Dr. Pangilinan, who examined claimant twice, was careful not to specifically find brain damage, organicity, organic brain injury, frontal lobe injury or partial complex seizures. Dr. Pangilinan instead preferred to limit his diagnosis to simply the general statement of organic brain syndrome on both occasions that he examined claimant (exhibits 19 and 20). Dr. Taylor said that claimant would have organic brain damage, assuming the loss of the sense of smell (exhibit 27, page 29), but no tests were performed to objectively prove that claimant had actually lost the sense of smell or that it was caused by this injury. Dr. Pangilinan and Dr. Taylor are both medical doctors and practicing psychiatrists. Dr. Varney is a board-certified neuropsychologist. Dr. Varney has demonstrated a great deal of knowledge about head injuries and he demonstrated that he is brilliant and articulate. Nevertheless, the testimony of the two psychiatrists is preferred over the testimony of the neuropsychologist. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). A doctor's expertise and board certification may accord his testimony greater weight. Dr. Taylor is a board-certified psychiatrist. Reiland v. Palco, Inc., 32nd Biennial Report of the Industrial Commissioner, 56 (1975); Dickey v. ITT Continental Baking Co., 34th Biennial Report of the Industrial Commissioner, 89 (1979). Claimant has sustained the burden of proof by a preponderance of the evidence that he has sustained a major depressive disorder as a result of the injury of March 18, 1982. Claimant did not sustain the burden of proof by a preponderance of the evidence that his symptoms of loss of hearing, loss of vision, loss of sense of smell, loss of sense of taste, loss of memory, loss of concentration and loss of sexual drive were caused by this injury. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 18, 1982 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). The time of the onset of claimant's alleged head injury symptoms was not definitively established. Statements of claimant and claimant's wife indicate that the various head injury symptoms started variously in 1982, 1983, 1984 and 1985. Therefore, it is not certain when the alleged head injury symptoms actually began based on their testimony. A head injury was mentioned at the time of the settlement on April 18, 1984, but none of these current head injury symptoms were mentioned at that time. Actually the head injury was noted, but it was never really treated other than to rule out neurologic deficits which was done by Dr. Nakhasi and the University of Iowa. The first definitive written evidence of these so-called head injury symptoms is when claimant saw Dr. Varney on August 3, 1985. This was one year after the settlement on April 18, 1984 and over three years after the original injury on March 18, 1982. Claimant was not seen again by a doctor for these complaints for another year after that when he saw Dr. Pangilinan on April 7, 1986. This was two years after the settlement and four years after the injury. There was no explanation why claimant first consulted a forensic psychologist for evaluation of total disability rather than a practicing medical doctor for actual treatment of such dire threatening symptoms. There is no explanation why Dr. Varney said that medication could result in some improvement of claimant's depression, but did not refer him to a medical doctor for treatment of the depression and these terrible symptoms claimant was experiencing, including suicide ideation. It is unusual that a whole year passed before claimant saw the next medical practitioner which was Dr. Pangilinan on April 7, 1986 for these very serious symptoms and complaints. It is unusual that this evaluation was requested by the Social Security Disability Determination Services rather than by claimant or by his family and that claimant was still not seeking professional treatment and care,for these.alarming symptoms and complaints. It is unusual that Dr. Pangilinan could describe such awesome complaints and diagnoses and still find that claimant is capable enough to manage the benefit payment on his own behalf on two different occasions (exhibits 19 and 20). Dr. Taylor quite perceptively and accurately detected that claimant had received absolutely no treatment for his very grave condition that was making his life almost unbearable. He stated that claimant would significantly benefit from treatment (exhibit 50). He stated that there were indications of organic brain syndrome, as did Dr. Pangilinan, but that the previous testing was not thorough enough and that claimant's condition was so clouded by depression that it was not possible to rule in or rule out the existence of brain damage (exhibit 27, page 10). Claimant refused treatment from Dr. Taylor. Claimant and his attorney proposed treatment by Dr. Verduyn in Waterloo or Dr. Hines in Ottumwa, but these doctors apparently were not acceptable to defendants. The parties had agreed on the University of Iowa prior to the hearing, but this examination or treatment or whatever it was intended to be did not take place prior to the hearing. The point is, however, that claimant never at any time sought any medical treatment for these terribly debilitating and oppressive symptoms. There is no evidence that claimant sought any medical treatment of any kind for either his leg or his head after the settlement on April 18, 1984. At the same time, there is evidence that, prior to this injury, claimant was treated for a number of medical conditions which included headache, backache, heart condition, stress, anxiety and other problems and injuries. He experienced a mysterious severe pain in the back of his neck in 1968 which caused him to be hospitalized and was diagnosed as a possible aneurysm. It was recommended that further studies be done, but there is no evidence that any studies were done. Claimant also sustained a concussion in 1981. There is no indication that these prior injuries and health problems are connected to the current injury, but they do tend to controvert the testimony of claimant's wife that he was in good health and had no problems prior to this injury. Claimant did not seek any work of any kind after the injury on March 18, 1982. Nor did he seek any work after the settlement on April 18, 1984. The only diagnosis for claimant's leg complaints, which seemed to allude a diagnosis by means of objective and clinical testing was causalgia. Causalgia is a burning sensation on the palms of the hands or the soles of the feet. Normally, causalgia would not cause a person to be totally unemployable. Yet claimant testified that he never attempted to work or to find work after this injury. He did not apply for work with employer; nor did employer offer him a job. Claimant said that he did not check the want ads for employment; he did not make an application for a job at the Job Service office. He did not look for employment. He made no job applications. Claimant declined both to receive sympathetic nerve blocks or to go to the pain center in Iowa City as suggested by Dr. Piburn. Claimant has never sought treatment for depression or head injury. Therefore, since claimant has never attempted to work again, although it would appear that it was possible for him to do so in 1984 and 1985 and possibly at other times, it is not possible to determine what claimant can or cannot do within the boundaries of his disability, or how much of his disability is self-imposed. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report, 334, 336 (1981). For the same reason, it cannot be said that claimant is an odd-lot employee. Since claimant has not demonstrated a bona fide effort to attempt to return to gainful employment in the area of his residence, he has failed to make a prima facie case of permanent total disability under the odd-lot doctrine. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985); Emshoff v. Petroleum Transportation Services, Inc., file number 753723, (App. Decn. March 31, 1987). Claimant indicated in his testimony which was corroborated by his wife and his son that all he was able to do was to feed the chickens, water the horse and pull grass in the garden. At the same time, Nancy Meany, Delagardelle's daughter, testified that she saw claimant doing field work on a tractor, driving his pickup truck and performing other kinds of work. Likewise, Delagardelle testified that he observed claimant on his roof replacing the shingles and photographed him up there. He also photographed claimant driving the red International tractor which required him to operate the clutch with his left foot which claimant said he was unable to do (exhibit 39). Delagardelle testified that he saw claimant four or five times in 1985 and 1986 hauling grain driving the red International tractor. He said he saw claimant a number of other times driving his pickup truck and his tractor. Delagardelle said he saw claimant plowing a field in 1983. Delagardelle said that his son-in-law reported to him that he saw claimant roto-tilling his garden. Delagardelle's wife reported to him that she saw claimant replace a door on claimant's rental house. She also reported to Delagardelle that claimant ran across the yard and back again. Delagardelle testified that he had seen claimant work and carry his grandchild without his cane and without a limp. Delagardelle explained that he never asked claimant to return to work because he was told that claimant was unable to work. Chris Ann Marie Boleyn, Delagardelle's daughter, testified that she saw claimant at places where she was employed and that he walked without a cane and without a limp. Yagla observed claimant walk without a cane and without a limp. They both testified that, when claimant identified them, he began to limp and sought his cane. Laughlin, the private detective, photographed claimant mowing a sizable field, working in his garden, picking up fencing, a tire and sheet metal and other materials and placing them on the other side of a fence without apparent difficulty. Therefore, there is an abundance of evidence that claimant can perform a number of functions considerably more than he described in his testimony. Also, claimant's status of employability would possibly be more determinable if defendants had offered claimant the assistance of a vocational rehabilitation specialist. Since claimant has not sought any treatment for his depression, it is not possible to determine that claimant is permanently and totally disabled. Claimant saw two doctors and one psychologist since the settlement on April 18, 1984 and each of these times it was for the purpose of evaluation to obtain either Social Security disability benefits or workers' compensation benefits. Dr. Taylor said claimant would benefit significantly from treatment and medication (exhibit 50). Dr. Varney also said that medication would help claimant's depression (exhibit 17). Nevertheless, claimant never did seek any treatment for his significant depression, either before or after he talked to these evaluators. Moreover, claimant refused the treatment that was offered to him by Dr. Taylor and never sought out any medication or treatment from a doctor of his own choice. Claimant did not request an order for alternate care under Iowa Code section 85.27. Consequently, it was not possible for Dr. Taylor or any other physician to fully diagnose his condition or to determine the boundaries of his disability as a result of this injury. Claimant was 45 years old at the time of the injury and 51 years old at the time of the hearing. He has a high school education. His grades were not high, but they were passing. He performed well on two jobs when he was motivated to work in the past. In fact, claimant did extraordinarily well on his past employments despite his I.Q. and his grades in high school. Claimant has demonstrated a number of talents and abilities, both as a worker and as a manager. His past employments and his career as a farmer both required a variety of skills. At the same time, claimant is seriously depressed at this time and needs treatment. A portion of his disability, according to Dr. Taylor's testimony, appears to be self-imposed. Defendants should not be held liable for disability which is self-imposed through failure to seek reasonable medical treatment or because of refusal to accept reasonable medical treatment. Therefore, based upon all of the foregoing considerations and all of the factors employed to determine industrial disability, it is determined that claimant has sustained an overall industrial disability of 50% of the body as a whole for both the leg injury and the depression. Claimant's additional permanent partial disability and interest on this award should commence as of the date of this decision. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Claimant did not prove entitlement to temporary disability benefits for either temporary total disability or healing period benefits during a period of recovery for the reason that claimant never sought any treatment or care to begin a recovery from his severe depression. Nor did he accept the treatment and care that was offered by defendants [Iowa Code sections 85.33(l) and 85.34(l)]. The medical bills for claimant's leg injury were all paid at the time of the settlement on April 18, 1984. There was no evidence that claimant sought treatment for any additional medical treatment on the leg and he did not seek any treatment for his depression. Claimant's medical expense with Dr. Varney and Dr. Pangilinan were for evaluation, rather than treatment and are not allowable pursuant to Iowa Code section 85.27. In any event, it would appear that the Social Security Administration paid for the examination with Dr. Pangilinan and Mr. Rinder. The bill of Dr. Hines for the 24-hour ambulatory EEG was made at the request at Dr. Varney and therefore it is considered to be for evaluation rather than treatment. Evaluation is a trial preparation expense. Therefore, at this point, claimant has not established any entitlement to the payment of medical expenses based upon the evidence in the record. FINDINGS OF FACT THEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant did not seek any additional treatment for his left leg injury after the settlement on April 18, 1984. There is no medical evidence of a change of condition of the left leg after the settlement of April 18, 1984. That since the settlement on April 18, 1984, claimant has developed a major depressive disorder according to Dr. Varney, Dr. Pangilinan and Dr. Taylor. That Dr. Taylor said the depression was caused by the injury of March 18, 1982. That Dr. Varney testified that the injury of March 18, 1982 was the cause of claimant's depression. That Dr. Pangilinan did not specifically state that the injury of March 18, 1982 caused the depression, but he recorded that history and proceeded on that basis in his evaluation and he did not suggest any other cause for the depression. That the depression was not the cause of any additional temporary disability during a period of recovery because claimant never started any treatment for this condition and refused treatment that was offered to him. That the overall industrial disability as a result of the left leg injury and the depression is 50% of the body as a whole. That defendants have previously paid claimant 97 weeks of permanent partial disability benefits based upon a 19.4% industrial disability of the body as a whole pursuant to the settlement agreement of April 18, 1984. That claimant has not sought or received any medical treatment for the depression or the left leg since the settlement agreement on April 18, 1984. That claimant has not sought any reasonable medical treatment for his depression and he refused the treatment that was offered to him by defendants. That claimant has not sought any employment of any kind since the date of the injury. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant did not sustain the burden of proof, by a preponderance of the evidence, that he sustained a change of condition to his left leg after the settlement agreement on April 18, 1984. That claimant did sustain the burden of proof, by a preponderance of the evidence, that he did sustain a major depressive disorder after the settlement agreement on April 18, 1984. That claimant did not sustain the burden of proof, by a preponderance of the evidence, that either his left leg injury or his depression was the cause of any temporary disability during a period of recovery and medical treatment. That claimant is not entitled to temporary disability benefits of either temporary total disability or healing period benefits. That claimant did sustain the burden of proof, by a preponderance of the evidence, that the left leg injury and the depression were the cause of an industrial disability of 50% of the body as a whole. That claimant is entitled to 250 weeks of permanent partial disability benefits less the 97 weeks of permanent partial disability benefits which were previously paid pursuant to the settlement agreement which results in 153 weeks of permanent partial disability benefits due to claimant as a result of this hearing and award. That claimant is not determined to be an odd-lot employee. That claimant is not entitled to any additional medical benefits for any treatment after the settlement agreement up until the date of this hearing. That claimant cannot be determined to be permanently and totally disabled because he has not sought reasonable medical treatment on his own initiative and he refused the medical treatment which was offered by defendants and did not request an order for alternate care under Iowa Code section 85.27. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one hundred fifty-three (153) weeks of permanent partial disability benefits at the rate of one hundred forty-six and 39/100 dollars ($146.39) per week in the total amount of twenty-two thousand three hundred ninety-seven and 67/100 dollars ($22,397.67) which benefits are to commence on the date of this award. That interest will accrue pursuant to Iowa Code section 85.30 as of that date of this award. That no additional medical expenses are due from defendants to claimant at this time. That the costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 6th day of February, 1989. WALTER R. McMANUS, JR DEPUTY INDUSTRIAL COMMISSIONER Copies To Mr. Jay Roberts Attorney at Law 300 WSB Building P.O. Box 1200 Waterloo, Iowa 50704 Mr. Thomas L. Staack Attorney at Law 3151 Brockway Road P.O. Box 810 Waterloo, Iowa 50704 1106, 1108.20, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 1801, 1802, 1803, 1803.1, 1804, 2204, 2208, 2501, 2505, 2602, 2700, 2905, 3100, 3701, 4100 Filed February 6, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER OSCAR L. MULDER, Claimant, File No. 698080 vs. R E V I E W - GILBERTVILLE MILLING COMPANY, R E O P E N I N G Employer, D E C I S I O N and HAWKEYE-SECURITY INSURANCE CO., Insurance Company, Defendants. 1106, 1108.20, 1108.50, 1401, 1-402.20, 1402.30, 1402.40 1402.60,2204, 2208, 2905 Claimant did prove a change of condition after settlement of his case which was verified by two psychiatrists and a psychoneurologist. Causal connection was established. It was proven that claimant was not able to work due to the depression. Claimant did not prove organic brain damage, or loss of hearing, vision, taste, smell, memory, concentration or sex drive or that any of these conditions were caused by this injury. 1801, 1802 Claimant was not awarded any temporary disability benefits from his depression because he never began or started a course of treatment for recovery from this condition. 1803, 1803.1, 1804 Claimant was awarded 50% industrial disability of the body as a whole even though he was completely unable to work because the extent of impairment and disability could not be determined because he had never sought treatment for his depression or head injury, refused the treatment offered by defendants and never requested an order for alternate care under Iowa Code section 85.27. For the same reasons, it could not be determined that claimant was entitled to permanent total disability benefits. 2501, 2505, 2602, 2700 No medical benefits awarded because claimant had never sought any medical treatment. He was evaluated three times. Evaluations are trial preparation expenses and are not allowable medical expenses under Iowa Code section 85.27. 3100 Claimant used a vocational rehabilitation consultant to obtain Social Security disability benefits and for this action. Defendants' failure to employ a vocational rehabilitation consultant weakened their position. 3701 Surveillance was effective in proving that claimant was not as disabled as he asserted. 4100 Claimant had not looked for employment in any manner and therefore had not made out a prima facie case as an odd-lot employee. Page 1 before the iowa industrial commissioner ____________________________________________________________ __ : MARK F. McMULLIN, : : Claimant, : : vs. : : File No. 698688 DEPARTMENT OF REVENUE, : : R E M A N D Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ __ This case has been remanded to this agency by the Iowa Court of Appeals for further proceedings. The decision of the Iowa Court of Appeals, McMullin v. Department of Revenue, 437 N.W.2d 596 (Iowa App. 1989), held that claimant's injury did arise out of and was in the course of his employment. Previously, a deputy industrial commissioner had issued a decision on claimant's case on September 28, 1984, concluding, among other things, that claimant's injury arose out of and in the course of his employment, and finding that claimant was permanently and totally disabled. An appeal decision issued on October 7, 1985, concluded that claimant's injury did not arise out of and in the course of his employment with defendant employer. Thus, the extent of claimant's disability and other issues raised by the parties were not addressed in that decision. The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been re-reviewed as part of this remand decision. The decision of the deputy filed September 28, 1984, is affirmed and is adopted as the final agency action in this case, with the following additional analysis: The extent of claimant's disability can scarcely be exaggerated. He is confined to a wheelchair. He has lost all of the use of the lower portion of his body, and most of the use of the upper portion. Claimant cannot feed, clothe or bathe himself without assistance. Claimant needs constant care. The prospect of an employer hiring claimant is remote in the extreme. The fact that claimant is able to Page 2 generate some income by managing a motel he owns does not preclude a finding that he is permanently and totally disabled. Claimant is permanently and totally disabled. Defendants seek a credit pursuant to Iowa Code section 85.38(2). That section provides a credit against an award for amounts paid under a nonoccupational group plan. The record does not clearly establish which long-term disability plan defendants seek a credit for. Claimant was an employee of the state of Iowa. The State of Iowa's Employees' Long-term Disability Plan has been held to constitute a nonoccupational group plan entitling defendants to credit under Iowa Code section 85.38(2). Lowe v. Iowa State Penitentiary, Appeal Decision, December 16, 1988 (#673326, 776977, 805718). Iowa Code section 85.38(2) does not contemplate a credit for defendants for social security benefits received by claimant. Social security disability is not a nonoccupational group disability plan under section 85.38(2). Defendants have also objected to the award of medical benefits, specifically the purchase price of a van from Charles Gabus Ford, and the conversion costs of the van. A van for a paraplegic or quadriplegic is not a proper medical expense under Iowa Code section 85.27. Zanders v. City of Malvern, Appeal Decision, November 22, 1989. However, the costs to convert the van to the special needs of claimant resulting from his work injury are legitimate 85.27 expenses. Defendants will be ordered to pay the costs of converting the van, but not for the purchase of the van. Claimant alleges that the deputy's arbitration decision erroneously omitted items of medical expense contained in exhibit N. Claimant is entitled to payment of all listed medical expenses, including those contained in exhibit N, with the exception of the purchase price of the van, as noted above. Claimant also urges that he is entitled to future medical expenses resulting from his work injury, including personal care. Claimant is entitled under Iowa Code section 85.27 to all reasonable medical expenses necessitated by his work injury, including the costs of personal nursing care. Finally, defendants urge they are entitled to an offset of the award under Iowa Code section 85.22 for amounts received by claimant as part of a third party settlement stemming from the work injury. Claimant urges that any indemnification must be reduced by the amount of his attorney's fees. Iowa Code section 85.22(1) states: If compensation is paid the employee or dependent or the trustee of such dependent under this chapter, the employer by whom the same was paid, or the employer's insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, with legal interest, except for such attorney fees as may be allowed, by the district court, to the injured employee's attorney or the attorney of the employee's personal representative, and Page 3 shall have a lien on the claim for such recovery and the judgment thereon for the compensation for which the employer or insurer is liable. In order to continue and preserve the lien, the employer or insurer shall, within thirty days after receiving notice of such suit from the employee, file, in the office of the clerk of the court where the action is brought, notice of the lien. Defendants shall be entitled to indemnification as set forth in Iowa Code section 85.22. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant permanent total disability benefits at the rate of two hundred twenty-eight and 40/100 dollars ($228.40) from November 23, 1981 and continuing during the period of his disability. That defendants shall receive a credit pursuant to Iowa Code section 85.22. Defendants shall also receive a credit for any non-occupational group plan benefits contemplated by Iowa Code section 85.38(2). Defendants shall not receive a credit for social security benefits received by claimant. That defendants shall pay claimant's listed medical expenses, except for the purchase price of the van. Defendants shall pay the future medical expenses of claimant necessitated by his work injury. That defendants shall pay the accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid. That defendants are to pay the costs of this action. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of August, 1991. ____________________________________ JON E. HEITLAND CHIEF DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Lorraine J. May Mr. Hugh J. Cain Attorneys at Law 4th Floor, Equitable Bldg. Des Moines, Iowa 50309 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Page 4 Hoover State Office Bldg. Des Moines, Iowa 50319 1804, 5-3400, 1704, 2504 Filed August 23, 1991 Jon E. Heitland before the iowa industrial commissioner ____________________________________________________________ __ : MARK F. McMULLIN, : : Claimant, : : vs. : : File No. 698688 DEPARTMENT OF REVENUE, : : R E M A N D Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ __ 1804 On remand from Iowa Court of Appeals, which determined that claimant was in the course of his employment when he was hit head on in Cleveland, Ohio, and became a quadriplegic, permanent total industrial disability was found. 5-3400 Defendants granted credit for third party judgment, minus attorney fees, under 85.22. 1704 Defendants granted credit for nonoccupational group plan benefits under Iowa Code section 85.38(2), but denied credit for social security benefits claimant received. 2504 Defendants were ordered to pay for costs of converting a van to accommodate claimant, but not the purchase price of the van. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD PETERS, Claimant, vs. File No. 699108 SWIFT INDEPENDENT PACKING, A P P E A L Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from review-reopening and rehearing decisions awarding payment of $100 of the $200 charge for a medical examination pursuant to Iowa Code section 85.39 and denying a payment of a $40 claim for medical treatment pursuant to Iowa Code section 85.27. Defendants cross-appeals from the review-reopening decision and a rehearing. The record on appeal consists of the transcript of the review-reopening hearing; claimant's exhibits 1 through 4 and defendants' exhibits A through K together with the filings of the parties on rehearing. Both parties filed briefs on appeal. ISSUE The issue on appeal is whether claimant has established that the medical treatment he received from Mark Wheeler, M.D., on September 4, 1985 is causally connected to his work injury of March 3, 1982. REVIEW OF THE EVIDENCE The review-reopening and rehearing decisions adequately and accurately reflect the pertinent evidence and it will not be set forth herein. SWIFT V. INDEPENDENT PACKING Page 2 APPLICABLE LAW Division of Industrial Services Rule 343-4.22 governs actions taken at the prehearing conference and provides: The deputy commissioner or industrial commissioner may enter an order reciting any action taken at the conference or pursuant to any other procedures prescribed which will control the subsequent course of action relative to matters which it includes, unless modified to prevent manifest injustice. This agency has consistently held that an issue not raised by the parties at the time of prehearing and listed on the hearing assignment order is waived. Presswood v. Iowa Beef Processors Appeal Decision, November 14, 1986; Chamberlain v. Ralston Purina, Appeal Decision, October 29, 1987, Marcks v. Richman Gordman, Appeal Decision, June 29 1988. ANALYSIS The hearing assignment order filed in this case on April 8, 1987 states one issue which was to be heard: causal connection of medical expenses claimed under Iowa Code section 85.27. No mention is made in the hearing assignment order of any issue involving Iowa Code section 85.39 or any issue involving authorization of treatment. This agency has consistently held that the hearing assignment order controls what issues may be heard at hearing. Therefore, the only issue which will be considered on appeal is whether claimant's medical treatment with Mark Wheeler, M.D., on September 4, 1985 is causally connected to the work injury of March 3, 1982. The deputy analyzes this issue in the ruling on motion for rehearing filed on August 4, 1987: The only medical evidence regarding the causal relationship issue was the office notes of Dr. Wheeler and a report of Dr. Wheeler of September 9, 1986. The office notes are ambiguous as they could be describing an ongoing condition of some duration as evidenced by reports of more frequent giving out of the knee with effusions, and that the knee will buckle and cause claimant to so down approximately once a month, or the note could be interpreted as reporting a new injury as evidenced by the statement, "he recently hurt it two or three days ago." In his report of September 9, 1986, Dr. Wheeler stated he could not comment on the original injury and recommended consultation with the original treating physician as regards SWIFT V. INDEPENDENT PACKING Page 3 such questions. Likewise, lay testimony regarding claimant's knee condition was ambiguous as to whether the complaints related to an ongoing long-term condition or a new, independent injury. We find, that at best, the evidence on the causal relationship issue creates an equipoise. Such cannot carry claimant's burden. See Volk v. International Harvester Company 252 Iowa 298, 106 N.W.2d 640 (1960). For the above stated reasons, claimant has failed to establish by the greater weight of evidence that the medical treatment with Dr. Wheeler was causally connected to his work injury. The decision of the deputy industrial commissioner assessed costs against both parties equally "but for the cost of transcribing these proceedings, which shall be borne wholly by claimant's counsel." Division of Industrial Services Rule 343-4.33, which authorizes the assessment of costs, refers only to parties, and does not authorize assessment of costs against a party's counsel. The costs of this proceeding will be assessed against the parties and not against counsel. FINDINGS OF FACT 1. Claimant saw Dr. Wheeler on September 4, 1985. 2. Claimant gave a history of having had surgery following a slip and fall down some stairs that was consistent with claimant's work injury. 3. On September 4, 1985, claimant had continued and more frequent giving out of the knee with effusions, but no true locking. 4. Claimant's knee would then buckle and cause him to go down approximately once a month. Examination showed moderate effusion. 5. Claimant had "hurt" the knee two or three days prior to the examination. 6. Dr. Wheeler did not comment on the original injury. 7. Dr. Wheeler recommended that the original treating physician be consulted as regards the original injury. 8. Claimant's complaints could be consistent with a long-term injury or could be consistent with a recent injury. PETERS V. SWIFT INDEPENDENT PACKING Page 4 9. Claimant had had left knee injuries prior to his work injury. CONCLUSION OF LAW Claimant has not established that the medical treatment he received from Dr. Wheeler on September 4, 1985 was causally related to his work injury of March 3, 1982. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That claimant take nothing further from these proceedings. That each party pay their own costs of this proceeding and each party shall share equally the costs of the transcription of the review-reopening proceedings and appeal. Signed and filed this 26th day of October, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONALD PETERS, Claimant, VS. File No. 699108 SWIFT INDEPENDENT PACKING R E V I E W- COMPANY, R E 0 P E N I N G Employer, D E C I S I 0 N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding in review-reopening and for medical benefits brought by the claimant, Ronald Peters, against his employer, Swift Independent Packing Company, and its insurance carrier, National Union Fire Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained March 3, 1982. This matter came on for hearing before the undersigned deputy industrial commissioner in Sioux City, Iowa, on April 27, 1987. A first report of injury was filed April 5, 1982. An agreement for settlement was approved by this agency on December 12, 1984. The record in this proceeding consists of the testimony of claimant, of Rich Molden, and of Richard Sturgeon, as well as of claimant's exhibits I through 4, and defendants' exhibits A through K. ISSUE The issues to be decided are whether claimant is entitled to payment of a $40 medical bill with Mark Wheeler, M.D., under section 85.27, and whether claimant is entitled to payment of a $200 charge with Horst Blume, M.D., under section 85.39. REVIEW OF THE EVIDENCE Claimant's work injury occurred on March 3, 1982 when he slipped on fat and twisted his knee on stairs while leaving his work station for break. Claimant had had prior knee problems. Claimant denied having had knee injuries since the March 1982 incident, however. He reported that, subsequent to the incident, his knee goes out when he turns the wrong way and swells at least once monthly. Claimant reported that he called his counsel and asked if he could see Dr. Wheeler. He reported that counsel advised that the insurer approved a visitation with Dr. Wheeler and that he subsequently saw Dr. Wheeler. Claimant agreed that he received no written approval for his visit with Dr. Wheeler. Claimant reported that he is self employed as a janitorial service operator at the present time and that while doing so, he mops and scrubs floors. Claimant cannot recall whether he had seen the physician concerning his knee from August 10, 1984 until he visited Dr. Wheeler in September 1985. Claimant could not remember whether he had seen Wheeler in the morning of September 4, 1985 and then had seen Rick Molden, insurance adjuster of Crawford and Company, that afternoon. Mr. Molden testified that he obtained a statement from claimant on September 4, 1985 in which claimant stated he had seen Dr. Wheeler that morning. Molden reported that neither claimant nor his counsel had contacted the insurance adjuster regarding the visitation with Dr. Wheeler. Molden testified that claimant had reported he saw Dr. Wheeler as he preferred Wheeler to the prior authorized physician. Molden stated that claimant had then described an incident with his son where his knee had gone out. Molden reported that he has no notes in his file nor any independent recollection of a call from Mr. Sturgeon regarding a proposed Wheeler exam. Mr. Richard Sturgeon testified he is a paralegal in claimant's counsel's office and that he, by phone, contacted the insurance adjuster and requested permission for claimant to see Dr. Wheeler. He testified that this permission was given. Sturgeon agreed that he has no notes documenting such phone conversation. Claimant testified that he saw Dr. Blume prior to the agreement for settlement for reexamination, and that as a result of the examination, Dr. Blume assessed a permanent partial impairment rating of ten percent. An agreement for settlement indicated permanent partial impairment of 8.5 percent. Claimant reported he subsequently obtained the Blume bill for $200 and advised his counsel of that cost. Mr. Molden testified that he was unaware of the Blume bill prior to December 12, 1984, and that the insurance adjuster had not received a request that Dr. Blume examine claimant. He reported that he had not been asked to pay the Blume bill prior to the agreement for settlement. He stated that other agreed to bills had been paid either prior to or with the agreement for settlement. Mr. Molden reported that Dr. Blume had not been paid as he was not an authorized physician; he was a neurologist, not an orthopedist; that claimant's problem was an orthopedic injury; and as it was felt that a thermogram which Dr. Blume performed was not helpful. He reported that the insurance company adjuster would not have agreed to pay Blume as a precondition to the agreement for settlement, and that an additional $800.55 had been paid in the agreement for settlement. The agreement for settlement reflects $800.55 was paid reflecting the difference between a 7 percent and an 8.5 percent impairment of the leg. The agreement notes that section 85.27 medical benefits shall remain open. The agreement in paragraph 2 states that claimant has had all medical benefits and transportation expenses paid by the insurance carrier through the present time. Molden reported that the insurance adjuster may have taken the position that claimant cannot nominate Dr. Blume for an independent medical examination. Office notes of Dr. Wheeler, apparently of September 4, 1985, give a history of claimant having had surgery following a slip and fall down some stairs. He reports that claimant has continued with more frequent giving out of the knee with PETERS V. SWIFT INDEPENDENT PACKING COMPANY Page 3 effusions, but no true locking. He states the knee will buckle and cause him to go down with this happening approximately once a month. Examination showed moderate effusion. The doctor stated "He recently hurt it 2-3 days ago." The doctor's impression is of anterior cruciate deficient left knee. In a report of September 9, 1986, Dr. Wheeler states he cannot comment on the original injury and that he would recommend that the original treating physician be consulted as to such questions. APPLICABLE LAW AND ANALYSIS Section 85.27 requires employers to furnish employees reasonable medical care and permits the employer to choose and authorize such care. Only in an emergency situation can a claimant obtain nonauthorized medical care. The employee, additionally, has the burden of showing the treatment is related to the injury. As regards the Wheeler bill, we find that claimant has not shown that any such care was authorized. Claimant's testimony that his counsel advised him that such care was authorized is only supported by counsel's paralegal's assertion that a phone conversation took place with the insurance adjuster in which the adjuster authorized said care. The adjuster has no independent recollection of such authorization and has no file notes concerning any such phone conversation. Likewise, the claimant, his counsel, and his paralegal, are unable to produce file notes or other documentation of any such phone conversation. We find that at best the evidence creates an equipoise and such is not sufficient to carry claimant's burden of showing an authorization of care. Hence, we find that payment of the $40 bill with Dr. Wheeler is not mandated. As regards to the $200 charge with Dr. Blume, we note that section 85.39, in part, provides: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. We note that section 85.39 does not require prior approval before the examination may take place, only that an application be made for reimbursement by the employer for a reasonable fee for the subsequent examination. We note that the physician is a physician of the employee's own choice; hence, defendants' argument that they would not have authorized Dr. Blume is ill-founded. We note, however, that the section 85.39 examination is for examination only and not for treatment. Hence, we do not believe that a thermogram would be included as PETERS V. SWIFT INDEPENDENT PACKING COMPANY Page 4 part of the section 85.39 examination. Nor do we believe that the thermogram could possibly be characterized as authorized medical treatment under section 85.27. We also do not believe that section 85.39 examination would properly be characterized as a medical benefit such that claimant's right for reimbursement of said examination would be obviated by the agreement for settlement. We find claimant entitled to payment of a $100 charge for the August 10, 1984 office visit with complete history, and complete physical and neurological examination and evaluation of Dr. Blume. We find claimant is not entitled to payment of the cost for the thermogram administered on August 10, 1984. FINDINGS OF FACT WHEREFORE, IT IS FOUND: No file notes of either the insurance adjuster or of claimant's counsel's legal office support claimant's contention that Dr. Wheeler's examination of claimant was authorized. Dr. Wheeler's examination of claimant was not authorized. Dr. Horst Blume's August 10, 1984 office visit with complete history and complete physical and neurological examination and evaluation of claimant was an independent medical examination. Claimant has the right to choose his examining physician. Section 85.39 examination is not a medical benefit. Thermogram treatment is not part of a section 85.39 examination. Thermogram treatment by Dr. Blume was not authorized. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is not entitled to payment of a $40 medical charge with Mark Wheeler, M.D. Claimant is entitled to payment of a $100 charge with Horst Blume, M.D., for physical examination and evaluation. Claimant is not entitled to payment of a $100 charge with Horst Blume, M.D., for administration of a thermogram. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant the one hundred dollars ($100) charge with Horst Blume, M.D. Claimant and defendants bear equally the costs of this PETERS V. SWIFT INDEPENDENT PACKING COMPANY Page 5 action but for the cost of transcribing these proceedings, which shall be borne wholly by claimant's counsel. Signed and filed this 10th day of July, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law P.O. Box 3086 200 Home Federal Building Sioux City, Iowa 51102 2502; 2503 Filed 7-10-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONALD PETERS, Claimant, File No. 699108 VS. SWIFT INDEPENDENT PACKING R E V I E W COMPANY, R E 0 P E N I N G Employer, D E C I S I 0 N and NATIONAL UNION FIRE INSURANCE COMPANY Insurance Carrier, Defendants. _________________________________________________________________ 2502; 2503 Claimant awarded $100 payment for section 85.39 examination despite prior agreement for settlement. Claimant denied payment for nonauthorized medical care under section 85.27.