BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS R. GRIFFITH, Claimant, File No. 710847 VS. SMITH'S TRANSFER, INC., A R B I T R A T I 0 N Employer, and D E C I S I 0 N TRANSPORT INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Thomas R. Griffith, claimant, against Smith's Transfer Corporation, employer, and Transport Insurance Company, insurance carrier. Claimant seeks additional permanent partial,disability compensation and also section 85.27 benefits based upon the injury that occurred on July 26, 1982. The case was heard at Des Moines, Iowa on September 2, 1987 and was considered fully submitted upon conclusion of the hearing. The record in the proceeding consists of joint exhibits 1 through 16, claimant's exhibits 17 and 18, and defendants' exhibit B. The record also contains testimony from Thomas R. Griffith and from William E. Caldwell. ISSUES The issues presented for determination are the extent of claimant's permanent partial disability and the employer's liability for the two medical bills which claimant submitted. The occurrence of injury arising out of and in the course of employment was stipulated and the stipulated rate of compensation is $436.08 per week. It was further stipulated that all healing period compensation has been paid, that 25 weeks of permanent partial disability compensation have been paid and that the stipulated date for commencement of permanent partial disability compensation is December 12, 1985. SUMMARY OF EVIDENCE GRIFFITH V. SMITHOS TRANSFER, INC. Page 2 The following is a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding this case. Thomas R. Griffith was an over-the-road truck driver who was injured in an accident that occurred in the state of Minnesota on July 26, 1982. He injured his head and elbow and had stitches in his forehead and elbow. There was a possible loss of consciousness and retrograde amnesia concerning the accident (joint exhibit 1). Following the accident claimant continued to experience pain in the cervical region and headaches. Various treatments were administered including hot packs, traction, a TENS unit and prescription medications (joint exhibit 2). Claimant experienced blackout spells as well as a continuing problem with headaches. Evaluations were performed by a number of physicians. A report dated October 14, 1983 from Richard T. Beaty, D.O., the primary treating physician, concluded that claimant had probably stabilized with regard to his diagnosed post concussion syndrome, that he may continue to improve and should not deteriorate, that he had a 5% permanent partial disability based upon recurrent cephalgia for which Fiorinal Tabs were prescribed (joint exhibit 8). The last report from Dr. Beaty is an office note dated March 23, 1984 in which he indicated that he does not believe that claimant would be able to return to his previous job activity as an over-the-road truck driver (joint exhibit 10). Claimant was evaluated by Eugene Collins, M.D., in late 1982 and early 1983. A CT scan was interpreted as being negative and claimant's headache symptoms were reported as improving at that time (joint exhibit 11). Claimant was evaluated by Stuart R. Winston, M.D., a neurosurgeon, in mid-1984. Dr. Winston felt that claimant suffered from a chronic myofascial strain and associated muscle contraction headache. He recommended further diagnostic testing in the form of an EEG performed with nasopharyngeal electrodes. Dr. Winston did relate claimant's complaints to the accident of July, 1982 (joint exhibit 12). When the testing was completed, Dr. Winston indicated that claimant should be able to return to over-the-road truck driving (joint exhibit 13). The testing contemplated by Dr. Winston was performed at the University of Hospitals and Clinics, Department of Neurology, in mid-1984. The EEG was abnormal due to occasional left-right shifting sharp temporal transients weakly suggestive of a convulsive tendency. T. Yamada, M.D., a staff physician in the Department of Neurology, concluded that claimant may have a convulsive disorder secondary to a post concussion syndrome and recommended further testing (joint exhibit 14). Upon conducting the further testing, similar results were obtained, but Dr. Yamada did not considered the abnormalities to be convincing evidence of a seizure disorder. Since claimant had not had any blackout spells for a period of time, anticonvulsant medication was not administered (joint exhibits 15 and 16). Claimant currently works primarily on the dock loading and unloading trailers. He does some city delivery driving and short GRIFFITH V. SMITHOS TRANSFER, INC. Page 3 runs to other cities within a sixty-mile radius. Claimant testified that he has not returned to over-the-road truck driving because of a number of factors including Dr. Beaty's recommendation that he refrain from over-the-road,driving, his uncertainty regarding whether he would be able to perform the job, the fact that simply driving a car for extended distances brings on headaches and the fact that he has a family and prefers to be at home with them. Claimant testified that he earned an average of approximately $800 per week when working as an over-the-road truck driver in 1982 and that he now earns an average of approximately $750 per week as a dock worker for Smith's Transfer. Claimant indicated that pay raises have occurred since 1982 in both the driving and dock worker positions. In 1986, claimant earned $31,884.95 from his employment (defendants' exhibit B). Griffith testified that he is 39 years of age, married and has one child. He holds a B.A. degree in sociology and education from Drake University which he obtained in 1972, but has never worked in the field. His prior employment history includes working as a local delivery driver for a welding supply company and also as a rental manager for a truck rental company. He has been with Smith's Transfer for approximately 10 years and is 53rd in seniority out of 82 or 83 other employees. The future security of his employment with Smith's Transfer appears somewhat uncertain due to a recent purchase of the company by another business. Claimant's current complaints are essentially headaches of two varieties. Claimant testified that he experiences severe incapacitating headaches on a frequency of approximately one per week. He also complained of regular headaches which he described as a nuisance or bothersome but which do not prevent him from functioning. He stated that Tylenol is effective for treating the regular headaches, but that even prescription medication did not help control the severe headaches which come on without any known cause and which normally last for four to eight hours. William E. Caldwell, the Smith's terminal manager at Davenport, Iowa where claimant is employed, is acquainted with claimant. Caldwell testified that claimant is currently qualified as an over-the-road driver and that such is a requirement for being employed as a driver or as a dock worker. He testified that claimant had missed five days from work due to illness in 1986 and 1987. Caldwell confirmed that both dock workers and drivers had experienced pay raises since 1982. He would not disagree with a rate increase of from $.31 to $.34 per mile in over-the-road driver compensation since 1982. APPLICABLE LAW AND ANALYSIS Claimant's injury involved his head. His continuing complaints and the disabilities rated by the physicians deal with headaches and problems other than those located.in scheduled members. As stipulated by the parties, the disability should be evaluated industrially. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability GRIFFITH V. SMITHOS TRANSFER, INC. Page 4 was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man.O Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). The stipulated rate of compensation is consistent with claimant's testimony that he earned an average of approximately $800 per week at the time of injury. Defendants' exhibit B shows claimant's 1986 earnings to have been an average of approximately $615 per week. Exhibit B also shows that, by August of 1987, claimant had earned $21,251.00. When averaged over the 32 completed weeks of 1987, the average is approximately $665 per week. When compared to his 1982 average of $800 per week, and considering approximately a 10% increase in over-the-road driver income as would accompany a rate increase of from $.31 to $.34 per mile, it is clear that claimant has experienced a substantial reduction in actual earnings. Since he is not driving over the road, however, claimant also does not have the expenses for meals and other road expenses that are commonly absorbed by over-the-road drivers. Claimant's complaints regarding his headaches and their aggravation by driving an automobile are accepted as true and correct. His testimony that trucks typically provide a less comfortable ride than an automobile is also accepted as correct. The medical authorities are in some disagreement regarding whether or not claimant is medically capable of returning to over-the-road driving. The primary piece of objective evidence in this regard is the EEG results from the University of Iowa Hospitals and Clinics which did in fact produce abnormal results, even though they were interpreted as not providing convincing evidence of a seizure disorder. Where objective evidence of some abnormality exists, even though it may not be convincing or compelling, the fact of a history of blackouts following the injury and continuing severe headaches is sufficient to warrant a conservative attitude on the issue of claimant's returning to over-the-road driving. The consequences of a blackout could be quite severe for claimant and for other users of the highways. Claimant's decision to remain in a dock-worker position is certainly reasonable even though well-respected medical authorities have indicated that it is probably not necessary for him to refrain from over-the-road driving. Even though he is probably capable of performing over-the-road driving, that type of activity is something which Dr. Winston indicated would be likely to produce discomfort (joint exhibit 12). Claimant's testimony regarding his recurrent headaches, both regular and severe, is accepted as being true and correct. It is further found that driving a rough-riding truck would be likely to GRIFFITH V. SMITHOS TRANSFER, INC. Page 5 produce significant discomfort and would aggravate the injuries suffered on July 26, 1982. While claimant probably could actually work as an over-the-road driver, it is found that he could do so only by enduring increased discomfort and with some, albeit minimal, risk to himself and to others through blackouts. When claimant's 1982 earnings are compared with the 1986 earnings as a dock worker, there appears to be approximately a 25% loss of actual earnings. When computed in comparison to the average 1987 earnings to date, the result is a 20% reduction in actual earnings. When compared to the claimant's estimated average earning level of $750 per week, the result is a 7% reduction in earnings. If the over-the-road earning level is increased by approximately 10%, as would seem appropriate according to Caldwell's testimony, the weekly gross would be $880 per week. When viewed in comparison to $750 per week, the result is a 17% loss of actual earnings. Even this amount, however, is probably a much smaller loss of earning capacity than what would have resulted if claimant had been forced to seek other employment, even when it is considered that he holds a B.A. degree. It is also recognized, however, that a number of factors not related to the injury have played some part in claimant's decision to not return to over-the-road trucking. It cannot be said, however, that those are the only reasons or that the results of the injury played no significant part in his failure to return to over-the-road driving. When all the applicable factors of industrial disability are considered, it is found and concluded that claimant has a 12 1/2% permanent partial disability in industrial terms as a result of the injury of July 26, 1982. Claimant seeks payment of medical expenses in the amount of $165.00 with C. F. Andrews, D.O., and $26.00 with Osteopathic Radiology Associates (claimant's exhibits 17 and 18). Claimant testified that he was referred to both of those providers of care by Dr. Seitz, the company physician, and such is confirmed on exhibit 18. Claimant testified that the services performed were related to his continuing complaints following the 1982 accident. No evidence is in the record conflicting with claimant's testimony regarding the referral and reason for the referral. It is well established that referral by an authorized physician is authorization for the treatment that is provided. Limoges v. Meier Auto Salvage, I Iowa Industrial Commissioner Report, 207 (1981). Defendants are therefore responsible for payment of the bills in the total amount of $191.00. FINDINGS OF FACT 1. Both witnesses who testified at hearing are found to be fully credible. 2. Thomas R. Griffith is a 39-year-old married man who suffers from continuing headaches as a result of a truck accident that occurred on July 26, 1982. 3. EEG tests performed at the University of Iowa Hospitals and Clinics identified some abnormality, but it was not of a sufficient degree to be considered as convincing evidence of a seizure disorder. GRIFFITH V. SMITHOS TRANSFER, INC. Page 6 4. Claimant is not, medically speaking, prohibited from working as an over-the-road truck driver. 5. For claimant to work as an over-the-road truck driver it would exacerbate his continuing symptoms that resulted from the 1982 accident. 6. For claimant to work as an over-the-road truck driver there would be some slight risk of him developing a blackout seizure which could have severe consequences on himself and on other users of the highways. 7. It is not unreasonable that claimant chooses to remain a dock worker rather than returning to over-the-road truck driving, even though he is medically and legally qualified to work as an over-the-road driver. 8. Claimant's medical expenses incurred with C. F. Andrews, D.O., and Osteopathic Radiology Associates were proximately caused by the accident of July 26, 1982 and that accident was a proximate cause of the services provided. The services were authorized by the employer acting through its company physician, Dr. Seitz. 9. Claimant continues to suffer from headaches, some severe and incapacitating, others of a lesser level. GRIFFITH V. SMITHOS TRANSFER, INC. Page 7 10. Claimant is a college graduate with a B.A. degree in sociology and education, but he has never worked in that field. 11. Claimant is well motivated to be gainfully employed, of above average intelligence and emotionally stable. 12. Most of claimant's work experience is in the trucking industry. 13. Personal reasons, as well as the results of the 1982 injury, have played a part in claimant's decision to not return to over-the-road trucking. 14. Claimant's actual loss of earnings had been in the range of 20%. 15. Claimant has a 12 1/2% loss of earning capacity when all the appropriate factors of industrial disability are considered. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant's disability in industrial terms under section 85.34(2)(u) is a 12 1/2% permanent partial disability of the body as a whole. 3. Defendants are,responsible for payment of claimant's medical expenses under the provisions of section 85.27 of the Code in the amount of $191.00. ORDER IT IS THEREFORE ORDERED that defendants shall pay claimant sixty-two and one-half (62 1/2) weeks of permanent partial disability at the rate of four hundred thirty-six and 08/100 dollars ($436.08) per week commencing December 12, 1985. Defendants are entitled to full credit for the twenty-five (25) weeks previously paid and shall pay the remaining thirty-seven and one-half (37 1/2) weeks in a lump sum together with interest pursuant to section 85.30. IT IS FURTHER ORDERED that defendants shall pay claimant one hundred ninety-one dollars ($191.00) for his medical expenses incurred with Osteopathic Radiology Associates and C. F. Andrews, D.O. IT IS FURTHER ORDERED that costs of this action are assessed against defendants in accordance with Division of Industrial Services' Rule 343-4.33. IT IS FURTHER ORDERED that defendants shall file Claim Activity Reports as requested by the agency pursuant to Division of Industrial Services' Rule 343-3.1. Signed and filed this 8th day of September, 1987. GRIFFITH V. SMITHOS TRANSFER, INC. Page 8 MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 Mr. Paul C. Thune Attorney at Law Suite 300, Fleming Building 218 Sixth Avenue Des Moines, Iowa 50309 1402.40, 1803 Filed September 8, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS R. GRIFFITH, Claimant, File No. 710847 VS. SMITH'S TRANSFER, INC., A R B I T R A T I 0 N Employer, and D E C I S I 0 N TRANSPORT INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.40, 1803 Claimant, a 39-year-old former over-the-road truck driver, due to headaches and continuing complaints following a truck accident, has chosen to remain as a dock worker rather than returning to over-the-road driving. Other factors also played a part in his decision to remain a dock worker. Claimant's decision was found to be reasonable in view of a risk, albeit minimal, of blackouts. (Claimant had a history of blackouts for a period of time after the accident, but has had none recently. EEGs showed some abnormality but not of sufficient degree to be diagnosed as a seizure disorder.) Claimant's actual reduction in earnings was in the range of 20%. Claimant awarded 12 1/2% permanent partial disability industrially. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JERRY RACKLEY, Claimant, VS. File No. 710994 ORBA JOHNSON TRANSSHIPMENT COMPANY, A R B I T R A T I 0 N Employer, and D E C I S I 0 N WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Jerry W. Rackley, claimant, against Orba Johnson Transshipment Company, employer, and Wausau Insurance Companies, insurance carrier. The parties captioned the case as one in review-reopening, but there is no prior settlement, award or memorandum of agreement from which to reopen and it is therefore an arbitration proceeding. Claimant seeks compensation for temporary total disability or healing period since he has been off work up to the date of hearing. The primary issue, however, is that claimant desires to have surgery and defendants have declined to send claimant to a physician who will perform the desired surgery and defendants will not authorize claimant to select a physician of his own choice at defendants' expense. Claimant requests that defendants be required to furnish a physician who will perform the desired surgery or to authorize him to select his own physician. Defendants urge that there is no causal relationship between the 1982 injury and claimant's current complaints. Alternatively, defendants allege that claimant's benefits should be suspended due to an alleged failure to cooperate with the physicians who have previously treated or examined him. The hearing commenced at Des Moines, Iowa on March 10, 1987 and was fully submitted. The record consists of claimant's exhibits 1 through 51, defendants' exhibits A, B and C and claimant's testimony. Official notice was taken of the most recent form 2A in the agency file which is dated December 10, 1984 and which shows weekly compensation payments paid, including 56 weeks of permanent partial disability, in the total amount of $14,915.97 and medical benefits paid in the amount of $9,377.69. The date of last payment of weekly compensation is shown as December 10, 1984. ISSUES AND STIPULATIONS It was stipulated that claimant sustained an injury on August 6, 1982 which arose out of and in the course of his employment and that the rate of compensation, in the event of an award of weekly benefits, is $187.79 per week. The primary issue is whether defendants are to be required to provide claimant further medical treatment, in particular, the surgery which he requests. The defense to the claim is a lack of causal connection and failure of claimant to cooperate with the previously authorized physicians. SUMMARY OF EVIDENCE All evidence received at the hearing was considered when deciding this case even though it may not necessarily be referred to in this decision. Jerry W. Rackley is a 39-year-old married man who fell from a bulldozer on August 6, 1982 resulting in an injury to his back. While seeking medical care under the direction of Jerry L. Jochims, M.D., a disagreement arose and claimant's care was transferred to the Steindler Clinic at Iowa City, Iowa (claimant's exhibit 33). After diagnostic tests were completed, surgery upon claimant's back was performed on November 10, 1982 by Webster B. Gelman, M.D., an orthopaedic surgeon. The surgery was a "Partial laminotomy, right, L5-Sl, removal of lateral recess stenosis [sic]. Laminotomy, L4-5, left, and correction of L4-5 lateral recess stenosis bilaterally." (Claimant's exhibit 36). After a period of recuperation, Dr. Gelman authorized claimant to return to work on February 14, 1983 (claimant's exhibit 45). Dr. Gelman's office notes indicate that claimant had a follow-up visit on May 12, 1983 at which time it appears claimant stated he was doing very well except occasional cramping in his right leg. A diminished right ankle reflex was noted and a 10% body as a whole permanent partial disability rating was given. Subsequently, on September 22, 1983, Dr. Gelman noted that claimant made complaint of cramping in both calves, but Dr. Gelman felt that those symptoms were not related to the back injury. The next entry in the record of claimant seeking medical care is found at claimant's exhibit 24 which indicates that, on July 19, 1984, claimant again saw Dr. Gelman and reported that approximately two weeks earlier, he experienced "a bad 'popping' sensation in his lower back and developed a tender catch with motion and burning in both legs." Dr. Gelman noted that claimant had reduced his activity level and had improved somewhat. He recommended that claimant increase his activity and return to work on July 23, 1984, but that if symptoms persist to the end of the month, a CT scan should be performed. The next entry in the record of claimant seeking medical care is his first appointment with Donald Mackenzie, M.D., which occurred on May 15, 1985 when claimant made complaint of a gradual worsening of his condition ever since the time of surgery. Five days later, on May 20, 1985, claimant discontinued any further work-up and indicated that he was going to live with his problem. Claimant testified that he was involved in a motor vehicle accident in July, 1985. His next medical visit was August 1, 1985 when he returned to Dr. Mackenzie. Diagnostic tests which had been performed led Dr. Mackenzie to diagnose disc herniation and to recommend surgery. On September 17, Dr. Mackenzie ordered physical therapy for claimant's complaints of neck pain which apparently had started at the time of the motor vehicle accident (MVA) (claimant's exhibit 8). Due to a disagreement with claimant, Dr. Mackenzie took himself off the case on November 13, 1985. Claimant was then examined by Koert Smith, M.D., on January 7, 1986 and in his report, Dr. Smith stated as follows: RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY Page 3 I would feel that at this time, assuming it can be documented, that he has had continued symptoms since his last surgery, that he would rate a 20% impairment for surgical excision of a disc without fusion with moderate persistent pain and stiffness, aggravated by heavy lifting. If, however, it can be documented that after his last surgery, that he got along well for two years and only recently began to develop symptoms; I would think that his initial impairment should have been 10% and unless a new injury can be documented at work, any additional impairment, namely the additional 10%, would be simply due to wear and tear in the natural course of the disease and not necessarily work related. (Claimant's exhibit 4) In a subsequent report dated October 15, 1986, issued after Dr. Smith discovered that claimant had engaged in riding mules at the time of his earlier report, he then went on to state: He then apparently did well enough that he was able to return to work sometime in 1983, and at that time would have assumed that his impairment rating would have been 10%, based on surgical excision of a disc with good result. Certainly without any documented sudden worsening of his condition with a new injury at work, especially in light of activities such as riding mules and riding 3-wheelers, his present worsened symptoms and subsequent increase impairment rating from 10% to 20%, would be difficult if not impossible to causally relate to any work injury, based on records available to me. (Defendants' exhibit C) Dr. Mackenzie initially indicated that possible causes of claimant's complaints were further disc injury unrecognized at the time of surgery, scarring from the previous surgery that was impinging on nerve roots or spinal instability (defendants' exhibit C, report dated 5-21-85). After conducting diagnostic tests, Dr. Mackenzie again diagnosed worsening low back pain radiating to both legs and stated that it was "probably due to a combination of retained disc fragment and epineural scarring." (defendants' exhibit C, report dated 8-13-85). In a report dated September 4, 1985, Dr. Mackenzie stated that claimant Is previous discectomy surgery was successful and that his problem is now degeneration of a second disc, which was undoubtedly injured at the time of the initial injury and which has now become sufficiently symptomatic to be causing claimant's problems (defendants' exhibit C). Subsequently, however, in a report dated December 5, 1986, issued after reviewing claimant's deposition testimony regarding riding mules and a 3-wheel all-terrain cycle, Dr. Mackenzie expressed disagreement with Dr. Smith's conclusion that claimant's permanent partial impairment rating had increased from 10% to 20%. Dr. Mackenzie explained that damage from a spinal injury may not manifest itself for as much as 24 months after the injury was sustained. He stated that deterioration of the spine occurs through a series of micro-traumatic events throughout life, but that, if it is possible to identify an episode of rather severe trauma which is followed by rapid deterioration within 24 months, then a causal RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY Page 4 relationship has been established within a reasonable degree of medical certainty. With regard to this case, Dr. Mackenzie stated: After two years, based on current medical knowledge, I think there is little way to establish this connection and this is particularly true when the patient's recreational or home activities have been as demanding as those in his work place. The above discussion leads me to believe that there is an equal likelihood of his current symptoms being caused by his continued presence in the work place, as there is of them being caused as a result of his other activities. Claimant testified that his symptoms had gradually worsened since the time of surgery in 1982 (defendants' exhibit A, pages 29-31). He denied the occurrence of any event which had any appreciable effect upon his back, be it at work or otherwise (defendants' exhibit A, pages 26-28). Claimant stated that, after being involved in the auto accident, he went to Dr. Mackenzie on the following day, but that supervisors at work would not let him return to work (defendants' exhibit A, page 27). Rackley testified that he hurt his upper back and shoulder in the auto accident. He stated in his deposition that he also hurt his low back in the accident (defendants' exhibit A, page 28, lines 9-12). At hearing he denied injuring his low back in the accident. When deposed, claimant characterized his mule and 3-wheel cycle riding as what could be considered infrequent. He indicated that the mule riding was not particularly troublesome for his back, but that riding the 3-wheeler did aggravate it considerably (defendants' exhibit A, pages 39-51). APPLICABLE LAW AND ANALYSIS The occurrence of injury was stipulated. Claimant's description of the accident which occurred on August 6, 1982 when he injured his back when he fell from a bulldozer is accepted as correct. Claimant has established that he received an injury which arose out of and in the course of his employment. The claimant has the burden of proving by a preponderance of the evidence that the injury of August 6, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The quest on 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). With regard to his initial treatment leading up to and including the surgery and post-operative care from Dr. Gelman, the sequence of events is such that there is no question but that a causal connection exists between the fall, the initial RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY Page 5 disability, the treatment and some resulting degree of permanent partial disability. From the form 2A which is in evidence, it appears (without actually hereby deciding) that claimant was paid all healing period and medical benefits which were due up to the time that he returned to work in early 1983. The sufficiency of the amount of permanency that has been paid is not an issue to be addressed in this decision. The crucial issue in this case is whether that original August 6, 1982 injury is a proximate cause of the worsening of claimant's condition of which he complains and for which he seeks authorization for surgery. 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). In the sense that the fall from the bulldozer injured claimant's back and left it in a weakened condition, it can be urged that anything that happens to claimant's back subsequent thereto was proximately caused by that original injury. Such is not, however, believed to be an appropriate rule of law. The increased susceptibility to injury is a matter to be compensated by an award of permanent partial disability rather than a lifetime of causal connection. The record in this case provides no expert medical testimony which relates the original injury to the worsening of claimant's complaints. In fact, evidence from Drs. Smith and Mackenzie is to the effect that it is not possible to determine whether the worsening is a result of the original injury or some intervening event or events. It appears that, at the time claimant was last seen by Dr. Gelman in 1983, he was continuing to have symptoms. He did not, however, seek further medical care until July of 1984 when he reported an incident of a "popping" sensation in his back and enhanced symptoms. Interestingly, this coincides with a period of payment of healing period compensation as reported on the form 2A even though there is no indication in the record identifying when, where or under what circumstances that "popping" sensation occurred. In his testimony, however, claimant denied experiencing any such events (defendants' exhibit A, page 26, lines 15-20). The record does not reflect the precise date on which the 1985 auto accident occurred. When claimant saw Dr. Mackenzie for the second time in May of 1985, he indicated that he was going to discontinue any attempts at treatment and was going to live with his condition. At some point in time shortly after the auto accident which apparently occurred in July, claimant was again under treatment by Dr. Mackenzie for purposes of diagnostic tests. Apparently, something occurred to cause claimant to return to Dr. Mackenzie. The only things in the record which could explain that timing are either the July RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY Page 6 automobile accident or the letter giving Dr. Mackenzie authorization to perform diagnostic tests (claimant's exhibit 8) and the letter from Dr. Mackenzie to claimant informing him that further testing could be arranged (claimant's exhibit 17). A cause is proximate if it is a substantial factor in bringing about the result. It need not be the only cause. Blacksmith v. All-American, Inc. 290 N.W.2d 348, 354 (Iowa 1980). Claimant must prove by a preponderance of the evidence that there is a causal connection between the employment incident or activity and the injury upon which his claim is based. A possibility is insufficient; a probability is necessary. Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). Whether a disability has a direct causal connection with the claimant's employment is essentially within the domain of expert testimony. Bodish v. Fisher, Inc., 257 Iowa 516, 133 N.W.2d 867, 870 (1965). Expert testimony that a condition could possibly be related to a claimant's employment, although insufficient alone to support a finding of causal connection, could be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974). When all the evidence in the case is considered, it is not possible to determine whether the increase in symptoms resulted from the original injury or whether it resulted from intervening events. Claimant has failed to introduce evidence showing it to be more likely than not that the increase in his symptoms was proximately caused by the original injury as opposed to intervening events. He has therefore failed to prove by a preponderance of the evidence that the injury of August 6, 1982 is a proximate cause of his increased symptoms and of any surgery or other procedures which would be reasonable and necessary in treating the increased symptoms. FINDINGS OF FACT 1. Jerry W. Rackley injured his back in a fall from a bulldozer while engaged in his employment with Orba Johnson Transshipment Company on August 6, 1982. 2. The injury produced a need for surgery which was performed by Webster B. Gelman, M.D. Following a period of recuperation, claimant returned to work in February of 1983. 3. Claimant was never completely free of symptoms following that surgery and, in July of 1984, experienced an aggravation of his back condition for which he was off work approximately three weeks. 4. In May, 1985, claimant entered into treatment with Donald Mackenzie, M.D., but discontinued treatment and did not resume it until after being involved in an automobile accident in July, 1985. RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY Page 7 5. The original injury of August 6, 1982 left claimant's back in a weakened condition which was more susceptible to injury than it had been prior to August 6, 1982. 6. The evidence in the case does not establish a cause for the worsening of symptoms which has occurred. The evidence shows it as likely to be due to the automobile accident or to claimant's recreational activities of mule riding or all-terrain vehicle riding as it is to the original injury or to some other intervening employment-related trauma. 7. Claimant has failed to establish that the injury of August 6, 1982 was a substantial factor in bringing about the increased symptoms which currently afflict him. CONCLUSIONS OF LAW 1. The fact that an injury has produced a permanently weakened or impaired physical condition does not establish that the injury is a proximate cause of all subsequent ailments affecting the injured part of the body. The question of causation is a question of fact and the original source of weakened or impaired condition is evidence of causation, but it must be viewed together with all other evidence, such as intervening causes or aggravating traumas. RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY Page 8 2. Claimant has failed to prove by a preponderance of the evidence that the injury of August 6, 1982 is a proximate cause of the worsening of claimant's symptoms that has occurred subsequent to his return to work in early 1983. 3. Defendants are not responsible for providing treatment for claimant's current spinal complaints or the surgery for which he requests authorization. ORDER IT IS THEREFORE ORDERED that defendants have no responsibility to provide surgical treatment for claimant's current spinal affliction. IT IS FURTHER ORDERED that claimant is not entitled to further weekly compensation for healing period for times subsequent to the July, 1985 automobile accident. IT IS FURTHER ORDERED.that costs of this proceeding are assessed against claimant. Signed and filed this 31st day of August, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. E. J. Kelly Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1108.50, 1402.30 Filed August 31, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JERRY RACKLEY, claimant, VS. File No.: 710994 ORBA JOHNSON TRANSSHIPMENT COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ 1108.50, 1402.30 Where there were conflicts in the evidence and evidence of intervening nonoccupational traumas, claimant's request for an employer-provided surgeon and healing period or temporary total disability was denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DEBRA A. SLADEK, : : Claimant, : File No. 711592 : vs. : A R B I T R A T I O N : K-MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE Claimant Debra Sladek seeks medical benefits under the Iowa Workers' Compensation Act from her self-insured employer, K-Mart Corporation. Claimant sustained injury arising out of and in the course of employment on August 20, 1982. Defendant concedes that her injury has caused permanent total disability. A hearing was thereupon held in Cedar Rapids, Iowa, on April 8, 1993. The record consists of claimant's exhibits 1-11, defendant's exhibits A-G and claimant's testimony. ISSUE The parties have stipulated that claimant sustained injury arising out of and in the course of employment on August 20, 1982; that the injury caused permanent total disability; that the appropriate compensation rate is $140.58 per week; and, that there is no dispute as to the credit to which defendant is entitled. The sole issue presented for resolution is entitlement to medical benefits. However, the record is unclear as to precisely what dispute is presented. Claimant submitted a list of disputed medical expenses with the hearing report; defendant agreed to pay each of these except for the Towncrest x-ray bill of $55.40. Causal connection of this expense to the work injury was disputed, as is whether the expense was authorized. It was stipulated that treatment was reasonable and necessary and the fee charged was fair and reasonable. However, claimant also testified and presented an exhibit listing a number of "needs" recommended by her authorized physician, Richard F. Neiman, M.D. It is unclear to what extent relief is sought with respect to those items, and also as to defendant's position. The parties requested and were granted time to submit briefs. However, none have been filed. For purposes of this decision, the writer will assume that the dispute (if any) as to the listed "needs," relates to whether those items are covered as medical benefits under Iowa Code section 85.27. Page 2 FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Debra Sladek suffered a back injury on August 20, 1982, when she slipped and fell while walking across a newly washed floor. Multiple surgical treatments have failed to relieve symptoms. Ms. Sladek finds herself totally disabled from gainful employment and must live with severe pain and physical restrictions. In particular, sitting is very difficult. On February 21, 1991, Dr. Neiman wrote: Debra is not capable of sitting or standing for any length of time and must change positions. She has marked restrictions as far as the motion of the back as noted above. Therefore, flexion, extension and lateral rotation in almost any direction is next to impossible. She has inability to lift more than approximately 5 to 10 pounds without having back discomfort. She can not drive in a car more than 15 to 20 minutes without discomfort. She literally is in constant pain. I feel she is industrially totally disabled and will remain so for an indefinite basis. I do not anticipate any improvement regarding the industrial impairment. I wish I had an easier answer for this unfortunate individual but so far no one has come up with such. (Claimant's Exhibit 1, Page 6). Claimant also suffers from a hypo-reflexic sensory neurogenic bladder which Dr. Neiman describes as a direct consequence of back surgery. Claimant receives frequent injections for the various complications of her injury. On July 22, 1991, an x-ray of the left femur was taken at the Towncrest X-ray Department. The charge of $55.40 was paid by claimant on September 10, 1992. Claimant's undisputed testimony is that this particular x-ray was ordered by Dr. Neiman due to her frequent injections and the concern that part of a hypodermic needle may have "shredded." Claimant supplied Dr. Neiman with a list of items she felt necessary. On February 5, 1993, Dr. Neiman wrote "To Whom It May Concern" of the following "list of needs" for claimant: TENS unit & supplies (pads, tapes, gel batteries etc) Handicapped toilet or raised toilet seat Lifts into house and camper Canes Body Casts Shower bars (grab bars) Water mattress Special car to ride in- Chevy Caprice Classic New front seat Page 3 Special foam for car and camper Invalid cusions [sic] Custom made chair Lift into whirlpool Pick up sticks Life Line Back braces Catheters (Claimant's Exhibit 1, page 12). In other exhibits, Dr. Neiman has specifically recommended a home health aide to take care of claimant's personnel needs and has pointed out the extreme importance of "Life Line" or a similar service so as to allow her greater independence. ANALYSIS AND CONCLUSIONS OF LAW In pertinent part, Iowa Code section 85.27 provides: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. . . . When an artificial member of orthopedic appliance, whether or not previously furnished by the employer, is damaged or made unusable by circumstances arising out of and in the course of employment other than through ordinary wear and tear, the employer shall repair or replace it. When any crutch, artificial member or appliance, whether or not previously furnished by the employer, either is damaged or made unusable in conjunction with a personal injury entitling the employee to disability benefits, or services as provided by this section or is damaged in connection with employee actions taken which avoid such personal injury, the employer shall repair or replace it. Under rule 343 IAC 8.5, appliances are defined as "hearing aids, corrective lenses, orthodontic devices, dentures, orthopedic braces, or any other artificial device used to provide function or for therapeutic purposes." Coverage for some items is more clear than it is for others. For example, body casts, catheters and TENS (transcutaneous electrical nerve stimulation) unit supplies Page 4 are reasonable medical supplies. Even though the list was originally furnished by claimant, Dr. Neiman's description is that of "needs," which implies medical necessity. The TENS unit itself is an orthopedic appliance; that is, an artificial device used for therapeutic purpose. The following are also devices intended to provide function or therapy: handicapped toilet, shower bars, water mattress, invalid cushions and pick up sticks (reach extenders). Canes qualify as crutches under 85.27 and are directly covered. Back braces are orthopedic braces under the definition of appliances. Life Line, apparently an emergency notification service, is in the nature of a medical service necessitated by claimant's condition. A wheelchair is an orthopedic appliance which performs a function equivalent to the use of the legs. McClure v. Audubon Brookhiser Transp., Inc., (Appeal Decision, December 26, 1989). Similarly, lifts into claimant's house and camper are orthopedic appliances and covered. A custom made chair is appropriate modification in the nature of a therapeutic appliance, since it allows claimant to sit. Claimant's whirlpool lift is wearing out through ordinary wear and tear, not through circumstances arising out of and in the course of employment, or through personal injury or efforts to avoid injury. Therefore, replacement is not covered. Claimant also seeks to be provided a vehicle, since she finds riding in the front seat of an ordinary car to be too painful. A vehicle does not replace a lost physical function, and is not an appliance. Zanders v. City of Melbourne, (Appeal Decision, November 22, 1989). Even a van used for transportation to medical services some of the time does not render a vehicle a covered expense. However, defendant will be required to convert a vehicle to claimant's special needs, if she first furnishes the vehicle. McMullin v. Department of Revenue, (Remand Decision, August 23, 1991). ORDER THEREFORE, IT IS ORDERED: Defendant shall reimburse claimant in the sum of fifty-five and 40/100 dollars ($55.40), representing the Towncrest x-ray bill. Defendant shall provide suitable TENS unit and supplies, handicapped toilet or raised toilet seat, lifts into house and camper, canes, body casts, shower bars, water mattress, invalid cushions, custom made chair, pick-up sticks, back braces, catheters, and the Life Line telephone service. If claimant first furnishes a vehicle, defendant shall appropriately modify the vehicle to claimant's special needs. Costs are assessed to defendant. Signed and filed this ____ day of May, 1993. Page 5 ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Thomas J Currie Attorney at Law 3401 Williams Blvd SW PO Box 998 Cedar Rapids Iowa 52406-0998 Mr Joel T S Greer Attorney at Law 112 West Church Street PO Box 496 Marshalltown Iowa 50158 2501; 2504 Filed May 10, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBRA A. SLADEK, Claimant, File No. 711592 vs. A R B I T R A T I O N K-MART CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 2501; 2504 After multiple failed back surgeries, defendant conceded that claimant is permanently and totally disabled. In addition to one unpaid medical bill, defendant was ordered to provide a list of medical supplies and therapeutic and functional appliances. A replacement whirlpool lift was not covered, since it wore out through ordinary wear and tear, not through employment, personal injury, or an effort to avoid personal injury. They were not ordered to provide claimant a vehicle, but were ordered to modify a vehicle to be provided by claimant. McMullin v. Department of Revenue. 52505 Filed July 19, 1994 Marlon D. Mormann BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ DEBRA ANN SLADEK, : : File No. 711592 Claimant, : : vs. : A R B I T R A T I O N : K-MART, : D E C I S I O N O N : Employer, : E X P E D I T E D Self-Insured, : Defendant. : P E T I T I O N : ------------------------------------------------------------ 52505 Claimant is permanently and totally disabled due to a back injury incurred with K-Mart Corporation. Claimant requested services of a home health aide for approximately two hours per day to assist her with activities of daily living such as dressing, bathing and walking along with general cleaning. Claimant is foreclosed from these activities due to the work injury. Claimant's parents had previously been providing the service but can no longer do so due to age and health. But for such assistance, claimant would be institutionalized. Claimant was allowed 14 hours per week in home health aide services. A prior hearing was held on the issue of section 85.27 medical benefits on April 8, 1993. Since an arbitration decision was entered by another deputy industrial commissioner after that April 8, 1993 hearing, no benefits were allowed for services incurred prior to April 8, 1993. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ DEBRA ANN SLADEK, : : File No. 711592 Claimant, : : vs. : A R B I T R A T I O N : K-MART, : D E C I S I O N O N : Employer, : E X P E D I T E D Self-Insured, : Defendant. : P E T I T I O N : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant Debra Sladek as a result of injuries occurring on August 20, 1982. A prior arbitration petition was filed requesting a decision on medical benefits. The prior hearing was held on April 8, 1993. A deputy industrial commissioner issued a decision in arbitration on May 10, 1993, which addressed issues under Iowa Code section 85.27. Claimant filed an additional petition for medical benefits on September 19, 1993. The issue is whether claimant is entitled to receive compensation under section 85.27 for home care services or housekeeping services. This case was heard and fully submitted by telephone conference on July 13, 1994. Claimant participated and was represented by Thomas Currie, Attorney at Law. Employer participated by and through its attorney Joel Greer, Attorney at Law. Testimony was offered on behalf of the employer from Martha Anetrini, claims examiner II with K-Mart Corporation. The record also consists of claimant's exhibits 1 through 3 and employer's exhibit A, along with the administrative file. ISSUE The issue presented for determination is as follows: Whether the employer is responsible to pay for home care services, including housekeeping services under section 85.27. FINDINGS OF FACT Having considered all of the evidence in the record and having heard all the testimony of the witnesses the deputy industrial commissioner finds: Page 2 Claimant, Debra Sladek, suffered a severe back injury on August 20, 1982. This injury rendered claimant incapable of gainful employment. Since that time, claimant has been assisted with normal household duties by her parents and home health aides. Claimant has difficulty changing her bedding, going for walks, bathing, vacuuming, sweeping, cleaning, and dressing. Claimant testified that services of a home health aide for about one and one-half to two hours per day would allow her to pursue her regular activities of daily living. Claimant's parents had previously been assisting in these duties but are now foreclosed from that assistance due to health and age. Claimant's exhibits 1 and 3 indicate that a home health aide which would assist claimant with personal needs would be most beneficial. It is found that claimant is not able to dress, bath or go for walks without assistance. But for such assistance claimant would be institutionalized. A prior hearing was held on April 8, 1993, which addressed the issue of Iowa Code section 85.27 benefits. A decision was subsequently entered by a deputy industrial commissioner and became final agency action since neither party appealed. REASONING AND CONCLUSIONS OF LAW The issue in this matter is whether services of a home health aide to supply basic housekeeping services, bathing, dressing, and walking are compensable under section 85.27 as reasonable and necessary means of treating the work injury. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). It is held that the services of a home health aide are reasonable and necessary services required under section 85.27. That section specifically states that nursing services are compensable. Since claimant has difficulty performing tasks which must be considered activities of daily living and constantly requires assistance, she is entitled to such services so as to prevent her from becoming institutionalized. Dressing, bathing and walking are activities of daily living which claimant requires constant assistance. Therefore such assistance for a period of 14 hours per week is reasonable and appropriate for treatment of the injury dated August 20, 1982. It should be noted that the services are not limited to those specific areas. The home health aide is also authorized to perform such other activities that claimant is unable to perform such as Page 3 changing bedding, general cleaning, social conversations and so on. This is an order for a home health aide for up to 14 hours per week in order to assist claimant with activities of daily living for which claimant has been prevented from performing for herself due to the August 20, 1982 injury. The second question is the commencement date for the services. Since a prior decision was entered by a deputy industrial commissioner on the issue of section 85.27 benefits, this order is effective only from the date of the last hearing which was April 8, 1993. ORDER IT IS, THEREFORE, ORDERED: Employer, K-Mart Corporation, self-insured, is to pay claimant the reasonable expenses for a home health aide to work up to fourteen (14) hours per week assisting claimant with activities of daily living, including but not limited to, dressing, bathing, walking, general household cleaning, changing bedding, and such other activities that allow claimant to live outside an institution. This order shall be effective for all services rendered after April 8, 1993. Costs are assessed to the employer, self-insured. Signed and filed this __________ day of July, 1994. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas J. Currie Attorney at Law 3401 Williams Blvd SW PO Box 998 Cedar Rapids, Iowa 52401-0998 Mr. Joel T.S. Greer Attorney at Law 112 W. Church St PO Box 496 Marshalltown, Iowa 50158 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBRA A. SLADEK, Claimant, File No. 711592 vs. MODIFICATION K-MART CORPORATION, ORDER Employer, Self-Insured, Defendant. ___________________________________________________________ The undersigned filed an arbitration decision on May 10, 1993. Upon further consideration, it is clear that error was committed with respect to claimant's request for a replacement whirlpool lift. Under McClure v. Audubon Brookhiser Transp. Inc., (App. Dec., December 26, 1989), defendant is liable to furnish replacement appliances which wear out through ordinary wear and tear. Giese v. Capitol Foods, III Iowa Industrial Commissioner Report 95 (1983). The last paragraph of Iowa Code section 85.27, which the arbitration incorrectly relied upon in denying replacement of the whirlpool lift, has reference to a subsequent employer, not this defendant. IT IS THEREFORE ORDERED that the arbitration decision filed on May 10, 1993 should be and is hereby modified to reflect that defendant shall provide a replacement whirlpool lift. Signed and filed this ____ day of May, 1993. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Thomas J Currie Attorney at Law 3401 Williams Blvd SW PO Box 998 Cedar Rapids Iowa 52406-0998 Page 2 Mr Joel T S Greer Attorney at Law 112 West Church Street PO Box 496 Marshalltown Iowa 50158 2501-2504 Filed May 12, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBRA A. SLADEK, Claimant, File No. 711592 vs. MODIFICATION K-MART CORPORATION, ORDER Employer, Self-Insured, Defendant. ___________________________________________________________ 2501 - 2504 Defendant was ordered to provide a replacement whirlpool lift, as, under Iowa Code section 85.27, they remain liable to furnish replacement appliances which wear out through ordinary wear and tear. McClure v. Audubon Brookhiser Transp. Inc. (App. Dec., December 26, 1989). BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE V. HOLLIDAY, Claimant, vs. File No. 711863 SPENCER COMPANY, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE F I L E D COMPANY, MAY 10 1989 Insurance Carrier Defendants. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding claimant permanent total disability benefits as long as claimant remains totally disabled as a result of an alleged injury sustained on July 26, 1982. The record on appeal consists of the transcript of the arbitration decision and joint exhibits 1 through 13. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: I. Claimant has failed to establish a causal connection between the injuries of 1982 and his present condition. II. Claimant is not permanently and totally disabled based on a work related injury. III. The work of a tuck pointer is seasonal and the applicable rate should be calculated pursuant to section 85.36(9) (The Code, 1987). REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS The analysis of the evidence in conjunction with the.law is adopted. FINDINGS OF FACT 1. Wayne Holliday was an employee of Spencer Company on April 1, 1982, and on July 26, 1982, when he sustained injuries which arose out of and in the course of his employment. The injury on April 1, 1982, occurred when a compressor unit fell upon him across his chest. The injury of July 26, 1982, occurred while he was using a rope to pull a lookout to the top of a building. 2. At the time of injury, claimant was working as a tuck pointer. 3. Following the injury of April 1, 1982, claimant was off work for a period of time which has not been precisely determined from the record made, but which appears to have been approximately 11 days. 4. Following the injury of April 1, 1982, claimant was able to resume the duties of employment, but he experienced some difficulties in doing so. 5. Following the injury of July 26, 1982, claimant has not returned to any gainful employment of any type. 6. The precise physiological damage or injury which claimant sustained in either of the two incidents that occurred in 1982 has not been determined. Claimant experiences pain and numbness in his right arm. He has suffered a severe loss of the ability to use his right hand. Claimant also has pain in his right shoulder region and a sensory impairment on the right upper portion of the trunk of his body. 7. It is found to be probable that there is some undiagnosed physiological condition in the anatomical region of claimant's cervical spine, brachial plexus and right shoulder which is responsible for the symptoms that he experiences in his right arm. 8. It is further found that the injuries claimant sustained on April 1, 1982, and/or July 26, 1982, were substantial factors in producing that physiological injury. 9. It is likely that there is some emotional component to claimant's current physical condition. 10. The injuries sustained in either of the incidents in 1982 are not probable source of the problems of which claimant complains regarding his lower extremities except to the extent that the problems may be psychologically induced. 11. Since the injury of July 26, 1982, Wayne Holliday has not returned to gainful employment and has not been medically capable of returning to gainful employment substantially similar to that in which he was engaged at the time of injury. 12. Claimant is found to have reached the point that it was medically indicated that further significant improvement from the injury was not anticipated on August 10, 1983, the date he completed his evaluation at the Mercy Hospital Medical Occupational Evaluation Center. Subsequent to that date, he has not been under any active recuperative treatment. 13. Claimant does not have sufficient residual capacity to be self-supporting. 14. Claimant does not have sufficient physical capacity to enable him to be employed in any well-known branch of the labor market in the geographic region of his residence, or elsewhere. 15. At the time of hearing claimant was 45 years old and married. 16. During the 13 weeks prior to July 26, 1982, claimant earned $4,966.50. 17. The medical care claimant has received from Darwin B. Jack, M.D., is reasonable treatment for the injuries he sustained on July 26, 1982, and the charges made are fair and reasonable. 18. Wayne Holliday has a restricted range of motion in his cervical spine and severely limited use of his right upper extremity which have resulted from the injuries sustained on July 26, 1982. He is in constant pain which is of a level that is mentally distracting. 19. Claimant dropped out of high school during the twelfth grade and has no further formal education. 20. Claimant's entire work experience has involved moderate or heavy physical labor and proficient use of both upper extremities. 21. Claimant is reasonable intelligent and a highly-motivated individual who would prefer to be gainfully employed rather than afflicted with his present state of disability. Claimant is emotionally stable, but there may be some psychological component to his present condition which has arisen from the physical injuries that he sustained. 22. As between the incidents of April 1, 1982, and July 26, 1982, the latter is found to be the primary source of.the disability with which claimant is currently afflicted. 23. The occupation of tuck pointer is not exclusively seasonal. CONCLUSIONS OF LAW This agency has jurisdiction of the subject matter of this proceeding and its parties. The injuries claimant sustained on April 1, 1982, and July 26, 1982, arose out of and in the course of his employment with Spencer Company. Wayne Holliday is permanently and totally disabled within the meaning of section 85.34(3) of the Code. The injuries claimant sustained on April 1, 1982, and July 26, 1982, are a proximate cause of his current permanent and total disability. Claimant's rate of compensation is determined under section 85.36(6) and is found to be $235.70 per week. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant weekly compensation for permanent total disability at the rate of two hundred thirty-five and 70/100 dollars ($235.70) per week commencing July 26, 1982, and continuing thereafter, for so long as claimant remains totally disabled. That defendants pay claimant's expenses with Darwin B. Jack, M.D., in the amount of one hundred fifty and 00/100 dollars ($150.00). That defendants pay the costs of this action 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 10th day of May, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To; Mr. Robert D. Fulton Attorney at Law 616 Lafayette St. P.O. Box 2634 Waterloo, Iowa 50704 Mr. Jeffrey J. Greenwood Attorney at Law 528 W. 4th St. P.O. Box 1200 Waterloo, Iowa 50704 1800 - 1804 - 3002 Filed May 10, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE V. HOLLIDAY, Claimant, vs. File No. 711863 SPENCER COMPANY, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier Defendants. 1800, 1804, 3002 Claimant, a tuckpointer was found to be totally disabled as a result of a work related injury. In addition, it was found that claimant's occupation as a tuckpoint was not exclusively seasonal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE V. HOLLIDAY, Claimant, File No. 711863 VS. A R B I T R A T I O N SPENCER COMPANY, D E C I S I O N Employer, and F I L E D LIBERTY MUTUAL INSURANCE FEB 18 1988 COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Wayne V. Holliday, claimant, against Spencer Company, his former employer and Liberty Mutual Insurance Company, the employer's insurance carrier. The case was heard at Waterloo, Iowa on July 30, 1987 and was fully submitted upon conclusion of the hearing. The record in this proceeding consists of testimony from Wayne V. Holliday, William F. Bower and Patricia Holliday. The record also contains jointly offered exhibits 1 through 13. ISSUES The issues presented by the parties are determination of whether a causal connection exists between the injury that claimant sustained on July 26, 1982 and any permanent disability with which he is afflicted. Also at issue is the nature and extent of permanent disability. Claimant urges that he is permanently and totally disabled and that the odd-lot doctrine should be applied. Claimant urges that his healing period runs from August 3, 1982 through February 14, 1984. The rate of compensation is at issue with the employer contending that claimant was a seasonal employee whose compensation should be determined under section 85.36(9) while claimant urges that the rate of compensation should be determined under section 85.36(6). Assessment of costs is also at issue with defendants seeking to recover $185.15 for reporting fees for the deposition of Dr. VanGilder and $150.00 for an expert witness fee for Dr. VanGilder, totaling $335.15. It was stipulated that claimant sustained an injury which arose out of and in the course of his employment. It was stipulated that defendants had paid claimant 180.286 weeks of compensation at the rate of $262.58 prior to the date of hearing. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding the case even though it may not necessarily be referred to in this decision. The proposed findings and conclusions filed by the parties were reviewed and are to some extent incorporated herein with modifications deemed appropriate by the undersigned. Wayne V. Holliday is the claimant in this case. Patricia Holliday is his spouse. William Bower is a former tuck pointer who lives in the Vinton, Iowa area. The summary of evidence regarding the general nature of the business of tuck pointing as is hereinafter made is based upon the testimony presented by Wayne Holliday and William Bower. The statements regarding claimant's abilities, complaints and restrictions are based upon the testimony from claimant and his wife. Wayne V. Holliday is a 45-year-old male whose birth date is February 18, 1942. He quit high school during the twelfth grade. He was in the Army reserve being on active duty in 1960 and was recalled to service in 1962. He received an honorable discharge. He had no further formal vocational, technical or academic training. His only training was on-the-job. Claimant worked approximately seven months for U. S. Steel Corporation, starting as a welder's helper and, by the time he left employment with U. S. Steel, he was a welder. Claimant began tuck pointing in 1962 and worked basically as a tuck pointer from 1962 until 1982 when he was injured. The occupation of being a tuck pointer was completely explained at the time of the hearing with pictures of the equipment used and a description of the activities, skills and exertion of being a tuck pointer (exhibit 7). Tuck pointers primarily repair the mortared joints between bricks of a brick building that have deteriorated due to weather. A tuck pointer often works from scaffolding which is attached to the roof of the building. This is done in one of two ways: if the building has a ledge overhang, hooks are attached to the roof of the building and ropes are dropped from the hooks and attached to the scaffolding; if the building does not have a ledge on which to fasten the hooks, then the job becomes much more difficult. It is necessary then to use 12- to 20-foot 4 x 6 pieces of lumber, referred to as lookouts, which are placed on the roof and extended slightly over the roof. On the end of the timber, away from the edge of the building, sandbags are placed to counter balance the weight of the scaffolding. In order to get the equipment to the roof of the building, it is necessary to carry it to the roof of the building. This would be done from within the building, if possible. If not, equipment would have to be moved up on the outside of the building. Ropes would be attached to the equipment so the individuals on the roof could pull the equipment up to the roof. The rope could weigh in excess of 100 pounds. The lookouts could weigh over 100 pounds. The individual on the roof must pull the equipment to the roof manually. The job of tuck pointing begins with grinding out the deteriorated mortar joint with an electric or air powered grinder which could weigh approximately 30 pounds. Pictures of the grinders were entered into evidence and an air and electric grinder were displayed (exhibit 12-4 and 12-5). The tuck pointer is required to put pressure on the grinder to clean the joints. It is necessary to hold the grinder to ensure that it does not fall out of the hands of the worker. Both claimant and the witness, William Bower, testified to the stress upon the body from this type of work. A tuck pointer is often required to grind for an eight- or ten-hour day. After the grinding has been completed, it is sometimes necessary to sand blast the building. A compressor is used to create high pressure that blows silica sand against the building to clean the bricks. A detailed description of this procedure was given. Pictures of the equipment used in the procedure, together with actual lengths of sand blast hose and a nozzle and hood were displayed (exhibits 12-1, 12-7, and 12-8). Tuck pointers may sand blast for entire days, resulting in fatigue as described by the witnesses. After the building is sand blasted the actual tuck pointing begins. Mortar is mixed on the ground and sent up to the tuck pointer on the scaffolding. The tuck pointer puts from six to eight pounds of new mortar on his hock at a time and, using a tuck pointing tool, which was displayed (exhibits 12-6, 12-10, and 12-11), presses the mortar into the joints between the bricks. While this is not as heavy work as sand blasting and grinding, it requires constant bending, twisting and turning as described by the witnesses. Following the tuck pointing, the building is acid washed which was described by the witnesses as easy work and may then be waterproofed. Other than for a period in the 1970's when claimant worked as a structural steel welder in Sidney, Nebraska, claimant worked as a tuck pointer constantly from 1962 to 1982. Before working as a tuck pointer, the only illness or injury experienced by claimant that appeared serious was when he was 12 years old and was hit by a truck which produced a broken leg and pelvis and brain concussion. Claimant recovered completely from this injury and residuals of the injury apparently did not cause him any problems. While working as a tuck pointer in 1977 for Spencer Company, claimant suffered a very serious accident. On October 21, 1977, he and the owner of Spencer Company had delivered a crane to their next job site on a Friday evening. While returning from this task, claimant was involved in an accident with his pickup truck which resulted in a fracture of two vertebrae in his neck. He was cared for by John C. VanGilder, M.D. Dr. VanGilder performed a triple fusion on claimant. He remained under Dr. VanGilder's care until May 1, 1977 when he returned to work as a tuck pointer with no restrictions. Claimant did not put in a claim for workers' compensation nor did he attempt to excuse himself from any type of duty because of restrictions or disabilities. Claimant admitted that he is an alcoholic and testified that, up until August of 1979, he was drinking rather heavily. He entered into the Powell Treatment Center at a hospital in Des Moines. Claimant testified that he had not consumed alcohol since the date of entering the treatment at Powell. Claimant recently quit smoking. Claimant continued working at Spencer Company without incident until April 1, 1982. At that time, while working in southern Iowa, claimant was unhooking a compressor from the rear of a truck. A picture of the compressor was entered into evidence (exhibits 12-2 and 12-3). This compressor is mounted on a trailer that fastens behind a truck. It was used to compress air for the sand blasting operation. Claimant had unfastened the compressor from the truck. He had his back to the compressor and was lifting on the tongue pushing the compressor backwards away from the truck. Claimant stepped into a small hole, lost his balance and fell. The tongue of the trailer fell across his chest causing pain in his upper back. He attempted to complete work, but because of his injury, returned to Oelwein where he was treated by Darwin B. Jack, M.D. He was off work for approximately 11 days. Claimant returned to work without restriction of his activities. Claimant stated that the residuals of that injury continued to bother him during that summer and to progressively worsen, but he continued to do his job until July 26, 1982. On that day, he was working in Estherville, Iowa on a hospital. Claimant had gone there with two other individuals who are no longer in Iowa and are unavailable for testimony. When claimant arrived at the scene, he found that the majority of the building did have an overhang and could be done with hooks, but one wing of the hospital did not have an overhang so he had to find lookouts in the area. He was able to rent lookouts from a local lumber yard. One of the individuals remained on the ground while claimant carried the rope to the roof from an inside stairway with the other individual. Claimant was pulling up one of the lookouts with the rope, hand over hand. He got the lookout about halfway up and felt a severe pain in the cervical area of his spine which caused what he described as an electrical shock to go down both of his upper extremities. He immediately let go of the rope, dropping the lookout. For the balance of the day, he was unable to work and only supervised the work of the other employees. On the next day, he went home because of the pain in his back and right arm. Claimant was treated by Dr. Jack, was seen by David F. Poe, M.D., and was sent to Dr. VanGilder. Claimant was treated by Dr. VanGilder, and was examined by Arnold E. Delbridge, M.D., and by Winthrop S. Risk, M.D. Claimant was evaluated at the Medical Occupational Evaluation Center at Mercy Hospital in Des Moines. Claimant was found to be totally disabled in accordance with the provisions of the Social Security Act and is receiving total disability benefits under the provisions of that Act. Claimant stated that his weight has gone from approximately 155 pounds down to approximately 120 pounds. He cannot mow the lawn or vacuum the house without his back hurting. He does help with some household work such as washing dishes, etc., but can do no stressful work of any type. He is severely limited in the periods of time that he can stand and sit and has difficulty riding in cars. Claimant has difficulty sleeping at night. Claimant's day-to-day medical care has been provided by Dr. Jack who monitors claimant's condition with monthly evaluations (exhibits 1-2 and 1-8). Dr. Jack has consistently indicated that he considers claimant to be totally disabled (exhibits 1-1 and 1-16). His notes from 1982 are found in exhibit 1 at pages 129-132. The neurosurgeon who treated claimant for the 1977 accident and for his current problems is Dr. VanGilder. Dr. VanGilder has diagnosed claimant's condition as a chronic polyneuropathy (exhibit 10, pages 21, 24, 31 and 45). A battery of diagnostic tests has failed to identify the etiology of claimant's problems. The only definite abnormality consistently found is abnormal EMG's of the right arm. Reflex changes and some of claimant's symptoms have been transitory (exhibit 10, pages 10-13, 16, 17, 20-25, 27, 29 and 31). Claimant has consistently exhibited diffuse loss of sensation of the right arm, but has not exhibited atrophy of the arm (exhibit 10, pages 10, 11, 24 and 30). The undersigned was unable to observe any apparent atrophy in claimant's arm at hearing. Dr. VanGilder rated claimant's right arm as being totally disabled and equated it to a 20% disability of the body as a whole (exhibit 10, page 28). He felt that the 1977 accident had not produced any permanent impairment (exhibit 10, page 43). Dr. VanGilder has consistently stated that the cause of claimant's problems is unclear (exhibit 10, pages 20, 21, 23, 31 and 32). He has ruled out the possibilities of the problems relating to the 1977 injury, a herniated disc, tumor or other mechanical factors (exhibit 10, pages 10-13, 35 and 44). An alcoholic neuropathy was indicated to be a possibility (exhibit 10, pages 19, 20, 27, 33, 34 and 37). Dr. VanGilder stated that claimant exhibited indications of a systemic disease which affects more than one nerve (exhibit 10, pages 18 and 20) and that he would expect that type of problem to be diffuse, but that claimant's problem seems limited to the right arm (exhibit 10, page 37). Dr. VanGilder testified extensively with regard to the effect of the 1982 accident. On page 36, the doctor, following a question from claimant's counsel assuming facts in the record, responded as follows: A. I think I would rather answer the question by saying that with his history of trauma and the onset of his symptoms, that I felt the symptoms were secondary to the trauma. On pages 40 and 41 of his deposition, Dr. VanGilder stated the following: Q. So if I understand your etiology here, you indicate that he received these traumatic injuries and whatever has happened to him, that started the process in motion. A. Yes. Q. And whether or not it would have happened to him in the future or not, it is very difficult if not impossible for you to tell. A. I can't say. Q. But be that as it may, what started this whole process in motion was those traumatic injuries. A. That's when he became symptomatic and I presume so. At pages 32 through 34, Dr. VanGilder stated: Q. Okay. Early on I had touched on the possibility of whether his current condition was caused by an injury that he had described to you back in '82 or whatever. What's your feeling about that? A. Well, it started with the injury, but I don't think the injury was of the magnitude that persisted for the period of time that it has. Plus, we know that he had progression of his symptomatology somewhere in the middle of this, his change in reflexes. And this would have been two years after an injury. So I don't -- I don't think that's the primary cause of it, no. Q. Okay. A. It may have started the symptoms off. Q. What would it be about an injury that would get it to start those symptoms? A. Well, I think it would stretch the nerves and cause initial irritation in them. By stretching, what I'm saying is, he said something struck him on the shoulder at the time. And he probably had some trauma to a nerve. But I don't think that would cause a progressive sort of phenomenon to occur. Q. Okay. A. Several months or years after the injury. Q. Is this the type of thing that you would expect to see in Mr. Holliday today absent that injury? A. Is what now, I missed the question? Q. Absent the injury, is this the type of thing that Mr. Holliday would have expected to incur during his lifetime anyway? A. I don't know. Q. Okay. A. Possibly. Q. Well, I was trying to figure out from those possible or likely causes that you had, if he was likely to wind up in the same position anyway? A. I think it's very probable he would, but I can't answer that. I don't know. Dr. VanGilder clearly indicated that claimant's leg complaints were not related to the 1982 traumas (exhibit 10, page 27). Claimant was examined by Winthrop S. Risk, M.D., a neurologist in Cedar Rapids, Iowa. His reports are located in exhibit 1, pages 49-52 and 64-67. In his report of October 31, 1983, Dr. Risk indicates that claimant's problem resulted from the traumatic injuries described in this discussion. In that report he stated the following: In addition to the neck pain which is associated with the severe limitation of movement of the neck in all directions and in addition to the upper thoracic and arm pain, he experiences pain in his right hip and entire right lower limb. He assessed claimant's condition as follows: Wayne Holliday presents with right sided sensory motor impairment, neck pain, back pain, right upper limb and thoracic, and right lower limb pains; all fitting a pattern of chronic post-traumatic pain, with sensory motor impairment. As indicated in the examination above, there is no sign of disuse atrophy of the right limbs. Tendon reflexes are generally symmetric. Fluency of movement improved with distraction and repetition. Most probably the patient suffers from post-traumatic syndrome, with somatization. The present degree of impairment, in terms of his complaints of pain and limitation of movement, appear out of proportion to the actual physical findings on examination. An associated depressive reaction is present. He further stated in that report: Given the duration of the patient's present problems, prognosis for recovery to a level that would permit the patient to return to work is guarded. (Exhibit 1-52). On July 9, 1984, Dr. Risk again examined claimant and reported: Assessment - Wayne Holliday presents with sensorimotor impairment of the right arm and leg and symmetrical weakness in both lower limbs. In addition, he has immobility of the neck. At the present time it is not possible to demonstrate any objective finding that would relate these impairments to the accident on April 1, 1982. On the other hand, the patient exhibits numerous findings on his examination that would fit some of the categories described in the AMA Guides to the Evaluation of Permanent Impairment, copyright 1971 in Chapter 13 under mental illnesses. These findings would fit with a diagnosis of posttraumatic syndrome. They would be rated class III (impairment of the whole man 50 to 95 percent), and would fit Category 3F, conversion or hysterical reaction. Given the fact that the patient has been off work for two years as a result of his reported symptoms, impairment rating would be in the higher range of impairment, 80 percent or greater. It is not possible to assign permanent impairment rating in this circumstance, because by the AMA criteria, the term "impairment" refers to a condition which results in a substantial loss of function despite treatment, and no efforts have been made to treat the patient's psychological component of his illness. Furthermore, a disability rating cannot be established since the AMA guide does not provide in the case of such psychiatric illness a conversion from impairment to disability. Finally, with regard to any actual organic injury from the patient's accident, as previously stated the major symptom has been pain. It is impossible to witness pain or measure it. It is certainly conceivable that had the injury occurred as the patient described, he may indeed continue to experience pain. In this regard, I would defer to Dr. VanGilder's opinion that the patient has an AMA disability based on considerations of the upper right limb of 20 percent. In addition, the patient's neck is nearly completely immobilized, which would carry a disability rating of 20 percent, for a combined rating of 36 percent. However, it should be emphasized again there are no objective criteria supporting these conclusions other than the patient's persistent complaint of pain and his chronic impairment that has prevented him from returning to work for two years. Psychiatric evaluation by a psychiatrist well experienced in posttraumatic syndrome would be appropriate in an effort to get a more quantitative measure of disability related to the patient's psychological component of his illness. (Exhibit 1-67). Claimant was also examined by Arnold Delbridge, M.D., on two occasions. The first examination was done in 1983 for Social Security purposes. The report following that workup is exhibit 3. The second examination was done in 1986. The doctor's deposition is exhibit 9. Dr. Delbridge found little overall change between the two examinations (exhibit 9, pages 11-15). He found claimant to have markedly limited range of motion in his neck, back and right shoulder. He characterized claimant's right hand as virtually useless. He found the intrinsic muscles of the right hand to be atrophied (exhibit 9, pages 7-10). He estimated permanent impairment on pages 19-22 of his deposition. He indicated, based upon AMA guides, that there was a seven percent whole man impairment resulting from the accident of 1977. Dr. Delbridge agreed with Dr. Risk that claimant had suffered a 20% impairment due to the limitations of his cervical spine. He then estimated a 70% impairment of his right upper extremity which converted to 42% of the body as a whole. He then combined 13% from his neck (20% minus seven percent preexisting) and 42% for his right upper extremity giving a combined total of 50% impairment of his body as a whole secondary to his accidents of 1982. Dr. Delbridge did not feel that claimant's back problems were due to the 1982 accident (exhibit 9, pages 21, 28 and 29). He discounted alcohol as a factor in claimant's problems (exhibit 9, pages 26, 34 and 35). Regarding claimant's ability to be employed, Dr. Delbridge stated: As far as this patient's capacity of work, it is at this time virtually nill [sic]. He cannot lift anything at all because he cannot bend over to do it and when he squats to lift he is very weak and he can barely support his body weight back up to a standing position. Repetitively lifting is completely out of the question. Standing would give him difficulty very soon after beginning the activity. Sitting is possible for short periods of time but once again he is very limited because of his limited motion as far as turning or adjusting himself to do tasks is concerned. In brief, what we have here is a gentleman who is emaciated, has lost thirty pounds over the past few months, is very weak, cannot use his right upper extremity for any meaningful activity and has a very very limited range of motion of both his neck and his lower back. (Exhibit 3). At page 16 of his deposition, which is exhibit 9, Dr. Delbridge stated the following: Q. And what conclusions did you come to, to that, regarding the social security claim? A. The conclusion that I came to in his social security claim was that in my opinion at this time this patient is not suitable for any type of work whatsoever. The doctor indicated that claimant's activities were considerably limited due to the 1982 injury (exhibit 9, pages 24-26). Identifying the situs and cause of claimant's injury was thoroughly discussed at pages 30-34 of exhibit 9: Q. And you are talking about that this is involving the shoulder, as getting into the body side as well as the arm? A. Yes. This is upper extremity, and I suspect that some of this is rotator cuff, and there you might be getting into the body as a whole. I converted it to body as a whole to give an illustration of how compromised he was on a total body basis. ... A. I didn't find any tears necessarily of the rotator cuff, so while I did convert it, really this is an upper extremity type of difficulty with the exception of the sensation, which might be attributable to the neurological function, of course coming from the cervical spine area. But there really wasn't any -- but that was really the only thing that I felt it could be attributed to, other than the extremity itself. ... Q. Do you agree or disagree with Dr. Van Gilder that the problems that Mr. Holliday is having with his upper right extremity are of unknown etiology? A. Well, there is no real ready and pat answers regarding his upper extremity, because Dr. Risk speculates on post injury trauma -- post trauma syndrome and proposes a quite high impairment. Dr. Van Gilder talks about an obscure neuropathy and talks about a lesser impairment. The people at Des Moines, one of the people that saw him there didn't feel that this was alcohol related. His EMG was pretty normal except for his ulnar nerve. So I didn't really believe that he was an alcoholic neuropathy. And I don't really think Dr. Van Gilder did either. The way I see Mr Holliday is that Mr. Holliday is somewhat like a reflex sympathetic dystrophy of the upper extremity. He had an injury. He had immobility. He had pain. He had more immobility. He had more pain. He went into a spiral and essentially ended up with a useless extremity. I see Mr. Holliday as more of a pain syndrome, disuse syndrome, than a neuropathy or an alcoholic neuropathy. Q. So that are you saying maybe because it hurts he's not used it, and his hand has deteriorated? A. Yes. Indeed his whole body has. I mean, he's lost -- when I saw him he had lost 30 pounds off a hundred and fifty pound frame. Claimant was evaluated at the Mercy Hospital Medical Occupational Evaluation Center. He was seen by Robert C. Jones, M.D., a neurosurgeon. Dr. Jones diagnosed claimant's condition as a strain of neck muscles, right tardy ulnar nerve palsy and possibly a stretched brachial plexus. Dr. Jones did not feel that claimant's problem was due to alcohol or to the 1977 accident (exhibit 1-168, 1-169 and 1-171). Claimant was also evaluated by Todd Hines, Ph.D., a psychologist. Hines indicated that claimant exhibited a modicum of reactive depression of a magnitude that was not sufficient to warrant treatment (exhibit 1-170, 1-172 and 1-173). In concluding the evaluation, it was determined that claimant had a five percent permanent impairment of the body as a whole due to a stretch injury to the brachial plexus, that his problems had no relation to alcohol abuse and that they did relate to the injuries he sustained in 1982 (exhibit 1-186, 1-187, 1-191 and 1-192). It was indicated that there were definite limits on claimant's ability to return to work (exhibit 1-191 and 1-192). Exhibit 1-40 indicates that, at the time of claimant's 1977 accident, prior to treatment, he exhibited a decrease in sensation and strength in his right upper extremity. On September 15, 1982, claimant was examined by David F. Poe, M.D. Dr. Poe's report was issued prior to the time most of the diagnostic tests which are now available in this case had been administered. It is not particularly definitive of the nature or cause of claimant's problems. Claimant was seen and evaluated by two vocational rehabilitation consultants, namely, G. Brian Paprocki and Clark H. Williams. The report from Mr. Williams, exhibit 5, is incomplete because it does not deal with claimant's physical capabilities and restrictions. Paprocki indicated that claimant would seem to have the intellectual ability to complete vocational retraining and the report indicates that claimant complained of pain which restricted his activities. Paprocki concluded that claimant's level of daily activities does not approximate even the least physically demanding category of employment, namely, sedentary employment. He felt that claimant had no transferable skills that were within the limits of his residual functional capacity. Paprocki indicated that retraining would be hampered due to the loss of fine motor control in claimant's right hand. He felt that the chances of claimant ever holding competitive employment of any type were nil (exhibit 4). The evidence in the record regarding the seasons during which tuck pointing is performed was provided by claimant and William Bower. They stated that most tuck pointing in the Midwest is done during the summer months, but that, even during the winter, there is tuck pointing work that is done on interior walls. They indicated that it is not uncommon for a tuck pointing contractor to arrange work in the southern part of the country in order to operate through the entire year. Exhibit 11 shows that claimant earned $4,966.50 during the 13 weeks preceding the week which included July 26, 1982. This computes to a gross average weekly wage of $382.04. According to claimant he was married, but had no dependent children at the time of injury. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of July 26, 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). Dr. Delbridge and the physicians at the Mercy Medical Occupational Evaluation Center found claimant's complaints to be related to the 1982 trauma. Drs. Risk and VanGilder were reluctant to make such a cause and effect relationship. They did not, however, indicate that they were of the definite opinion that a causal relationship was absent. A close examination of the evidence from Drs. Risk and VanGilder shows that they have found no definite, objective basis for concluding that the trauma and claimant's current problems are related. An expert may testify to the possibility of causal connection, but a possibility, standing alone, is insufficient. A probability is necessary to generate a question of fact and sustain an award. Burt v. John Deere Waterloo Tractor Works, Supra. The Iowa Supreme Court, in Becker v. D & E Distributing Co., 247 N.W.2d 727 (Iowa 1976) discussed the law on this problem with great clarity. Briefly summarized, the Court indicated that an expert witness may testify to the possibility, probability or actuality of the causal connection between a claimant's employment and his injury. If the expert testimony shows probability or actuality of causal connection, this will suffice to raise the question of fact for the trier of fact and, if accepted, will support an award. If the opinion shows a possibility of causal connection, it must be buttressed with other evidence such as lay testimony that the described condition of which complaint is made did not exist before the occurrence of those facts which are alleged to be the cause. This case presents a lack of consensus from the medical practitioners regarding the cause of claimant's complaints, other than an apparent consensus that the precise physiological cause is unknown. A number of causes have been suggested. Some have been discounted. It is, of course, possible that more than one causative factor is involved in this case. One thing that is absolutely clear, however, is that Wayne Holliday was able to work as a tuck pointer without any complaint or physical restriction prior to April of 1982. While he may have had some restrictions and complaints between April and July of 1982, he was still able to work in that quite strenuous occupation. After the incident of July 26, 1982, he was unable to function as a tuck pointer or to engage in hardly any other activity. The abrupt change in claimant's physical condition which followed the July 26, 1982 injury is found to be sufficient to buttress the medical opinions and to carry the burden of proving that the injury of July 26, 1982 is a substantial factor in producing his present disabilities, as the same relate to his right arm and neck. The injury of July 26, 1982 is a proximate cause of the disability with which he is currently afflicted regarding his right arm and neck. The fact that medical science cannot identify the source of a problem does not prove that a problem does not exist. The appearance and demeanor of claimant and his spouse were observed as they testified and their testimony is accepted as being credible and accurate. There is some question regarding whether claimant's permanent disability should be evaluated industrially or as a disability to his arm, a scheduled member. It is obvious that the bulk of his physical limitations deal with his right hand and arm. The record also, however, contains reference to injury to his brachial plexus, a part of the body which is not located in the arm. Claimant also has been rated as having disability, which resulted from the 1982 injury, in his cervical spine. Claimant's testimony regarding the incident of July 26, 1982, and also the earlier incident of April, 1982, clearly establishes that the trauma of those incidents was not restricted to his right arm. His symptoms are not inconsistent with some type of nerve impingement in the brachial plexus or cervical spine. The evidence from the Mercy Hospital evaluation and from Dr. Delbridge is accepted as correct even though it conflicts with evidence from Dr. VanGilder. Claimant's disability is determined to be a disability to the body as a whole. It is not limited to claimant's right arm. In assessing claimant's industrial disability, the problems with his legs are considered to be unrelated to the 1982 traumas, as indicated by Dr. Delbridge and others. As indicated by Dr. Risk and Mr. Hines, it is found that there is a psychological component to claimant's condition as well as the physical component. Drs. Jack and Delbridge have indicated that claimant is totally unable to be employed. G. Brian Paprocki has reached the same conclusion. The physical restrictions that have been indicated by Dr. VanGilder are not condusive to readily finding gainful employment. The record of this case does not suggest a single viable occupation or place of employment for Wayne Holliday. He has not looked for work. In his present condition, it would be pointless for him to seek work since there is no reasonable likelihood that he could be employed in the competitive labor market. Total disability under compensation law is not to be interpreted literally as utter and abject helplessness. The ability to earn some wages creates a presumption that the person has earning capacity commensurate with the wages that have been earned, but the presumption may be rebutted by evidence which shows that the post-injury earnings are an unreliable indicator of actual earning capacity. 2 Larson Workmen's Compensation Law, section 52.21(d). The loss of earning capacity is the reduction in value of the general earning capacity of the individual rather than the precise loss of wages or earnings in any specific occupation. Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) 100 A.L.R.3d 143. The test of permanent total disability in workers' compensation law has long been established and may be summarized as follows: When the combination of the factors considered in determining industrial disability precludes the worker from obtaining regular employment in which he can earn a living for himself, his disability is a total disability. Guyton v. Irving Jensen, Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diedrich v. Tri-City Railway, 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). Permanent disability means a disability that is lasting for an indefinite and indeterminable period. It does not require absolute perpetuity. Wallace v. Brotherhood, 230 Iowa 1127, 1130 (1941). There are few individuals in our society whose earning capacity is absolutely zero. Even the most severely impaired can, if they choose, produce some level of earnings. The test, however, is that the earnings be of a sufficient level to make the person self-supporting. It is found that Wayne Holliday does not have sufficient residual earning capacity to be self-supporting and that he is therefore totally disabled. It is further found that the condition of total disability, and its underlying physical problems which induced it, are long-lasting and indefinite. They are therefore considered to be permanent in nature. There has been no progress or noted improvement in his condition over the years since the injury. The fact, if it be a fact, that some part of his overall problem is a depressive reaction or some other psychological condition which has arisen from the physical injuries does not make his overall condition any less disabling or any less permanent. The employer has the choice of medical care under the provisions of Code section 85.27. If there has been a failure to diagnose and treat any emotional condition that may exist, the impact of such failure rests as heavily on the employer, who has the statutory duty to provide reasonable care, as it does on the employee. It is therefore found and concluded that Wayne Holliday is permanently and totally disabled within the meaning of section 85.34(3) of The Code. The rate of compensation is in dispute. From the testimony of claimant and of William Bower, it is clear that, in the Midwest, the occupation of tuck pointing is largely seasonal, but that there is some tuck pointing work available in the Midwest even during the winter months and that some tuck pointing companies move their operation to the southern states during the winter months. To compute compensation under section 85.36(9), the occupation must be "exclusively seasonal." From the evidence presented in this case, it is found that the occupation of tuck pointing is primarily seasonal in the Midwest, but that it is not exclusively so. Accordingly, claimant's rate of compensation should be computed under section 85.36(6). It appears that the rate previously paid was based upon an average weekly wage of $420.00. Exhibit 11 shows that the average weekly wage during the 13 preceding weeks was actually $382.04. Since claimant was married with two exemptions, this provides a rate of compensation of $235.70 per week. Defendants are, of course, entitled to a credit for the erroneous overpayment. Wilson Food Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982); Wolfe v. Weigel & Stapf Construction Co., 33rd Biennial Report, 221 (1977); White v. City of Fort Dodge, 33rd Biennial Report, 222 (1977). Claimant seeks to recover the cost of his treatment with Dr. Jack as contained in exhibit 8. The total shown is $150.00. The treatment provided, according to the evidence from Dr. Jack, is in essence a monitoring of claimant's condition. The treatment is not unusual or unreasonable. The charges on exhibit 8 appear reasonable for a routine office visit. While exhibit 1 shows that some services, unrelated to the 1982 injuries were provided to claimant, exhibit 8 does not seem to indicate any additional charge submitted in this case for those services over and above the charge for the routine office visit. Defendants are therefore responsible under section 85.27 for the fees of Dr. Jack in the amount of $150.00 as shown on exhibit B. FINDINGS OF FACT 1. Wayne Holliday was an employee of Spencer Company on April 1, 1982 and on July 26, 1982 when he sustained injuries which arose out of and in the course of his employment. The injury on April 1, 1982 occurred when a compressor unit fell upon him across his chest. The injury of July 26, 1982 occurred while he was using a rope to pull a lookout to the top of a building. 2. At the time of injury, claimant was working as a tuck pointer. 3. Following the injury of April 1, 1982, claimant was off work for a period of time which has not been precisely determined from the record made, but which appears to have been approximately 11 days. 4. Following the injury of April 1, 1982, claimant was able to resume the duties of employment, but he experienced some difficulties in doing so. 5. Following the injury of July 26, 1982, claimant has not returned to any gainful employment of any type. 6. The precise physiological damage or injury which claimant sustained in either of the two incidents that occurred in 1982 has not been determined. Claimant experiences pain and numbness in his right arm. He has suffered a severe loss of the ability to use his right hand. Claimant also has pain in his right shoulder region and a sensory impairment on the right upper portion of the trunk of his body. 7. It is found to be probable that there is some undiagnosed physiological condition in the anatomical region of claimant's cervical spine, brachial plexus and right shoulder which is responsible for the symptoms that he experiences in his right arm. 8. It is further found that the injuries claimant sustained on April 1, 1982 and/or July 26, 1982 were substantial factors in producing that physiological injury. 9. It is likely that there is some emotional component to claimant's current physical condition. 10. The injuries sustained in either of the incidents in 1982 are not a probable source of the problems of which claimant complains regarding his lower extremities except to the extent that the problems may be psychologically induced. 11. Since the injury of July 26, 1982, Wayne Holliday has not returned to gainful employment and has not been medically capable of returning to gainful employment substantially similar to that in which he was engaged at the time of injury. 12. Claimant is found to have reached the point that it was medically indicated that further significant improvement from the injury was not anticipated on August 10, 1983, the date he completed his evaluation at the Mercy Hospital Medical Occupational Evaluation Center. Subsequent to that date, he has not been under any active recuperative treatment. 13. Claimant does not have sufficient residual capacity to be self-supporting. 14. Claimant does not have sufficient physical capacity to enable him to be employed in any well-known branch of the labor market in the geographic region of his residence, or elsewhere. 15. Wayne Holliday is a 45-year-old married man. 16. During the 13 weeks prior to July 26, 1982, claimant earned $4,966.50. 17. The medical care claimant has received from Dr. Jack is reasonable treatment for the injuries he sustained on July 26, 1982 and the charges made are fair and reasonable. 18. Wayne Holliday has a restricted range of motion in his cervical spine and severely limited use of his right upper extremity which have resulted from the injuries sustained on July 26, 1982. He is in constant pain which is of a level that is mentally distracting. 19. Claimant dropped out of high school during the twelfth grade and has no further formal education. 20. Claimant's entire work experience has involved moderate or heavy physical labor and proficient use of both upper extremities. 21. Claimant is reasonably intelligent and a highly-motivated individual who would prefer to be gainfully employed rather than afflicted with his present state of disability. Claimant is emotionally stable, but there may be some psychological component to his present condition which has arisen from the physical injuries that he sustained. 22. Wayne Holliday, Patricia Holliday and William Bower are fully credible witnesses. 23. As between the incidents of April 1, 1982 and July 26, 1982, the latter is found to be the primary source of the disability with which claimant is currently afflicted. 24. The occupation of tuck pointer is not exclusively seasonal. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injuries claimant sustained on April 1, 1982 and July 26, 1982 arose out of and in the course of his employment with Spencer Company. 3. Wayne Holliday is permanently and totally disabled within the meaning of section 85.34(3) of The Code. 4. The injuries claimant sustained on April 1, 1982 and July 26, 1982 are a proximate cause of his current permanent and total disability. 5. Claimant's rate of compensation is determined under section 85.36(6) and is found to be $235.70 per week. ORDER IT IS THEREFORE ORDERED that defendants pay claimant weekly compensation for permanent total disability at the rate of two hundred thirty-five and 70/100 dollars ($235.70) per week commencing July 26, 1982 and continuing thereafter, for so long as claimant remains totally disabled. IT IS FURTHER ORDERED that defendants pay claimant's expenses with Darwin B. Jack, M.D., in the amount of one hundred fifty and 00/100 dollars ($150.00). IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED 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 18th day of 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert D. Fulton Attorney at Law 616 Lafayette Street P.O. Box 2634 Waterloo, Iowa 50704 Mr. Jeffrey J. Greenwood Attorney at Law 528 West 4th Street P.O. Box 1200 Waterloo, Iowa 50704 1301, 1302, 1402.30, 1703 1804 Filed February 18, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE V. HOLLIDAY, Claimant, vs. File No. 711863 SPENCER COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1301, 1302, 1402.30, 1703, 1804 Claimant presented himself with symptoms affecting primarily his right arm, but which also involved his neck and shoulder region. Although he had been thoroughly evaluated, the consensus of the medical practitioners was that he did have bona fide complaints and abnormalities, but that they were unable to identify the etiology of those complaints and abnormalities. The record clearly showed that the onset of the complaints was immediate following the trauma of which claimant complained. It was found that, in view of the medically documented physical abnormalities, the unknown etiology and the onset upon the occurrence of the trauma, that the trauma was a proximate cause of claimant's difficulties. Where the difficulties involved primarily the right upper extremity, but also involved the cervical spine, the disability was held to be to the body as a whole. Where the evidence failed to suggest, based upon claimant's education, experience and physical condition, that there was any type of employment for which he was reasonably suited, he was found to be permanently and totally disabled. Claimant was a construction worker who usually did not work during the winter months, but the occupation in which he engaged sometimes did provide winter work in the Midwest area or work in warmer states. The occupation was held to be not exclusively seasonal and his rate of compensation was based upon his previous 13 weeks' earnings.