BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GERALD GREGORY, Claimant, vs. File No. 719227 PORK PLACE, A P P E A L Employer, D E C I S I O N and ALLIED INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 23, 1993 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. William D. Scherle Attorney at Law 803 Fleming Bldg. 218 Sixth Ave. Des Moines, Iowa 50309 Mr. Stephen W. Spencer Mr. Joseph M. Barron Attorneys at Law P.O. Box 9130 Des Moines, Iowa 50306-9130 5-1803 Filed September 24, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ GERALD GREGORY, Claimant, vs. File No. 719227 PORK PLACE, A P P E A L Employer, D E C I S I O N and ALLIED INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 - Non-precedential Claimant failed to show a sufficient change of condition to warrant review-reopening. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : GERALD GREGORY, : : Claimant, : : vs. : : File No. 719227 PORK PLACE, : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N ALLIED INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Gerald Gregory, claimant, against Pork Place, employer, and Allied Insurance Company, insurance carrier, defendants, for the recovery of further workers' compensation benefits as the result of an injury on November 12, 1982. A memorandum of agreement pursuant to Iowa Code section 86.13 for this injury was filed and approved on August 4, 1988. On Febru ary 9, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. In the hearing report submitted prior to hearing, it was stipulated that the providers of the requested medical expenses would testify as to their reasonableness and defen dants are not offering contrary evidence. ISSUES The parties submitted the following issues for determi nation in this proceeding: I. The extent of claimant's entitlement to further disability benefits. II. The extent of claimant's entitlement to further medical benefits. FINDINGS OF FACT Page 2 Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: On or about the 2nd day of August, 1988, claimant and defendants entered into a settlement agreement wherein the parties agreed that claimant suffered numerous injuries on November 12, 1982, including but not limited to his back, both legs, both upper extremities and hearing loss. Based in part upon a combined 53 percent permanent partial impair ment rating to the body as a whole from the ratings of Bruce Butler, M.D., Timothy Fitzgibbons, M.D., and J. F. Pallanch, M.D., claimant was paid weekly benefits for permanent dis ability equivalent to a 62 percent industrial disability as a result of the work injuries. Claimant was not represented by counsel in this settlement but the terms of the agreement were approved by a deputy industrial commissioner on August 4, 1988. At the time of the work injury, claimant was employed as an assistant manager of a hog confinement operation. The injury occurred as a result of electrocution when claimant made contact with a high tension power line and then fell some 18-20 feet. Claimant sustained entrance and exit wounds over the hands and knees; compression fractures at various levels in the thoracic spine; and burns on the upper and lower extremities. Prior to the settlement, claimant had surgeries to his right hand and knee. Claimant also had injuries to his right shoulder. Claimant also suffered hearing loss and tinnitus prior to the settlement according to Phala Helm, M.D., in a report issued in April 1988. Finally, claimant suffered from emotional depression prior to settlement but responded to treatment and recovered according to claimant's testimony at hearing. Claimant bases his claim for review-reopening in part on new complaints in his left knee which resulted in arthro scopic surgery in 1990 upon a diagnosis of degenerative arthritis and chondromalacia related to the original 1982 injury. The causal connection of this condition to the injury was established by the uncontroverted views of the treating physician, Keith Swanson, M.D. Claimant testified that his knee condition has improved since the surgery. Claimant further complains of a lot more pain in the back and neck since the settlement along with more frequent headaches. Claimant also was diagnosed as suffering from symptoms of pain and numbness compatible with carpal tunnel syndrome in 1990 according to Tim Fitzgibbons, M.D. How ever, further electrical testing failed to confirm either carpal tunnel syndrome or cervical radiculopathy. Also, an MRI test in 1990 revealed kyphsis or curvature of the tho racic spine most likely due to the original injury. In Jan uary, 1993, claimant was rated as suffering an additional 7 percent permanent impairment from a 20.63 percent loss of hearing. Finally, a clinical psychologist, in January 1993, reports that claimant is suffering from progressively worse depression requiring further psychotherapy and medication treatment. Page 3 First, it is found that all of the new or additional complaints involving claimant's left knee, hands, mid-back, hearing and depression are causally related to the November 12, 1982 injury. This is based upon uncontroverted views of the treating physicians. However, it could not be found from the evidence presented that these additional complaints and symptoms constitute a significant change of physical or mental condition from that which existed at the time of the August 1988 settlement. Other than claimant's self-serving testimony, the only evidence that there is additional permanent impairment comes from the lay testimony of a fellow teacher who states that he appears worse than before. One physician gives an impairment rating for the loss of hearing. The only profes sional evaluation of claimant's physical impairments and capabilities comes from Thomas Bower, LPT, in January 1993. Bower agrees with the ratings given prior to the 1988 set tlement. Although claimant did undergo surgery on his left knee, no physician opines that this increases his impair ment. Indeed, claimant testified his knee improved after surgery. With reference to the additional hearing loss, such a deteriorating hearing condition was anticipated and consid ered probable prior to the 1988 settlement according to a report from John Pallanch, M.D., in September 1987. Most damaging to claimant's case for change of condition was the letter report from Phala Helm, M.D., at the University of Texas. Dr. Helm opined in April 1988 that claimant's condi tions over time will probably deteriorate. Although there is little question that claimant is suf fering serious emotional problems from the observations of claimant by this deputy at hearing, which is verified by the medical evidence, nothing has been submitted that would indicate that this depression would not improve with addi tional treatment in the same time and manner as his prior depression improved after treatment. Lastly, there has been no showing that claimant has suffered any non-physical change in his earning capacity since the settlement related to this original injury. Claimant was a public school teacher in August 1988 and he remains a teacher today at higher salary levels. Claimant testified that he has had to give up some of his coaching and other teaching activities but it could be found that this was due to the work injuries or due to non-work injury factors attributable to claimant's personality and back ground. Claimant certainly has received less than stellar performance appraisals from his superiors since 1988 but his job has not been shown to be in jeopardy. Claimant remains a teacher today and at least, at this point in time, it is likely he will continue in this capacity for the foreseeable future. CONCLUSIONS OF LAW I. In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence Page 4 that he suffered a change of condition or a failure to improve as medically anticipated as a proximate result of his original injury, subsequent to the date of the award or agreement for compensation under review, which entitles him to additional compensation. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Meyers v. Holiday Inn of Cedar Falls, 272 N.W.2d 24 (Iowa Ct. App. 1978). Such a change of condition is not limited to a physical change of condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition under Iowa Code sec tion 85.26(2) and 86.14(2). See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, (Iowa 1980); Blacksmith v. All-Ameri can, Inc. 290 N.W.2d 348 (Iowa 1980). A slight change not resulting in any new physical restrictions on claimant's employment is not a change of condition sufficient to sup port an award of additional industrial disability. Doyle v. Land O'Lakes, Inc., (Appeal Decision, Filed November 30, 1987). Also, a deterioration of condition anticipated at the time of settlement or prior award is not a sufficient change of condition to warrant review-reopening. Anderson v. J. I. Case Co., IAWC 17 (Appeal Decision 1989). In the case sub judice, claimant demonstrated that his complaints since the settlement are work-related but they are either not unanticipated or are not a permanent alter ation in his functional capabilities. Therefore, claimant is not entitled to a review-reopening. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, claimant seeks reimbursement for two medical evaluations by Thomas Bower and Robert Updegraff. Both appear to only be evaluations for the pur pose of this litigation, not additional treatment. There fore, claimant has not shown entitlement to reimbursement for these expenses. Costs are assessed against claimant. ORDER 1. Claimant's petition for review-reopening is dis missed with prejudice. 2. Claimant shall pay the costs of this action pur suant to rule 343 IAC 4.33. Signed and filed this ____ day of March, 1993. Page 5 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William D. Scherle Attorney at Law 803 Fleming Building Des Moines, Iowa 50309 Mr. Stephen W. Spencer Mr. Joseph M. Barron Attorneys at Law 405 6th Avenue STE 700 Des Moines, Iowa 50309 5-1803 Filed March 23, 1993 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : GERALD GREGORY, : : Claimant, : : vs. : : File No. 719227 PORK PLACE, : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N ALLIED INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 - Non-precedential Claimant failed to show a sufficient change of condition to warrant review-reopening BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUSAN (LITTLE) LENZ BLUME, Claimant, vs . FARMLAND FOODS, Employer, File Nos. 719256 & 653710 and A P P E A L AETNA CASUALTY & SURETY D E C I S I O N COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal and claimant cross-appeals from an arbitration and review-reopening decision awarding permanent partial disability benefits as the result of alleged injuries on November 1, 1980 and October 12, 1982. The record on appeal consists of the transcript of the arbitration and review-reopening proceeding; and claimant's exhibits A, B and C. Both parties filed briefs on appeal. ISSUES Both defendants' issue on appeal and claimant's issue on cross-appeal address the nature and extent of claimant's disability. REVIEW OF THE EVIDENCE The arbitration and review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be totally set forth herein. Briefly stated, claimant worked for Farmland Foods since 1977. Her duties consisted of work on a meat packing line, where she used an electric "wizard" knife during 1980 and 1981. Claimant's work involved the repetitive use of her hands, arms and shoulders. BLUME V. FARMLAND FOODS Page 2 In September of 1980, claimant sought treatment for pain in her right upper forearm. James Flood, M.D., the company doctor, placed claimant on light duty for one week. On November 16, 1980, claimant's right ring finger became locked in one position. Claimant visited Dr. Flood again and was referred to Timothy C. Fitzgibbons, M.D., an orthopedic surgeon. Dr. Fitzgibbons diagnosed stenosing tenosynovitis. Claimant underwent surgery to release the locked finger and after the surgery claimant experienced pain in her right shoulder and swelling and numbness of the right hand. Claimant was also found to have a nerve entrapment of the right hand and wrist, resulting in numbness. Claimant was released back to light duty on January 26, 1981. In February 1981, claimant was discharged by Dr. Fitzgibbons. Dr. Fitzgibbons noted at that time that claimant might have to seek alternative work if her symptoms persisted. In May of 1981, claimant returned to Dr. Fitzgibbons with pain in the right hand, wrist and forearm. Dr. Fitzgibbons removed claimant from work, particularly from working with a wizard knife. In August of 1981, claimant again returned to Dr. Fitzgibbons with a recurrence of her symptoms. Dr. Fitzgibbons diagnosed deQuervain's tenosynovitis, administered steroid injections, and took claimant off work. A second release surgery was performed in August of 1981 as well. When this surgery failed to relieve claimant's symptoms, Dr. Fitzgibbons indicated he could help claimant no further and released her to light duty on November 2, 1981 for six weeks to be followed by regular duty. In October of 1982, claimant experienced pain in her right shoulder. Claimant was treated by Dr. Flood and also by Clifford M. Danneel, M.D., and William R. Hamsa, Jr., M.D., with a diagnosis of right shoulder bursitis and placed on light duty for one month. On March 8, 1983, claimant continued to experience symptoms and returned to Dr. Fitzgibbons. Dr. Fitzgibbons opined that claimant's right wrist, right forearm, and right shoulder pain and right shoulder bursitis were exacerbations of claimant's earlier problem, stemming from repetitive overuse of her hands, arms and shoulders during her work at Farmland. Dr. Fitzgibbons assigned claimant a seven percent permanent partial impairment of the right upper extremity and returned claimant to light duty work on March 27, 1983. Claimant next treated with Thomas P. Ferlic, M.D., in June 1983. Dr. Ferlic diagnosed scarring o' the radial nerve and stenosing tenosynovitis of the right wrist and performed BLUME V. FARMLAND FOODS Page 3 surgery in August of 1983. In September 1983, Dr. Ferlic opined that claimant would not have any permanent impairment after her third surgery. Later, Dr. Ferlic stated that claimant had returned to her status prior to the third surgery and that "no permanent disability should result as a result of the surgery." Defendants' exhibit A, page 21. In May 1987, claimant was examined by a neurosurgeon, Horst Blume, M.D., who assigned claimant a 13 percent permanent partial impairment of the right hand. The record showed that claimant was compelled to leave work temporarily because of her pain on November 16, 1980; May 5, 1981; August 31, 1981; November 17, 1982; March 8, 1983; and August 29, 1983. Claimant continues to work at her employment with Farmland Foods. The parties stipulated that claimant received injuries on November 1, 1980 and October 12, 1982 that arose out of and were in the course of her employment with Farmland Foods; claimant is not seeking any further temporary total disability or healing period benefits; claimant's rate is $217.37 per week for the November 1, 1980 injury and $225.78 per week for the October 12, 1982 injury; the fees of Dr. Horst G. Blume are fair and reasonable and causally connected to the work injury. APPLICABLE LAW Iowa Code section 85.34(2)(m) states: "The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm and the compensation therefore shall be weekly compensation during two hundred fifty weeks." The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 538 (1936). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1560); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLonq's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the BLUME V. FARMLAND FOODS Page 4 appropriate subdivision of Iowa Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). The "cumulative injury rule" may apply when disability develops over a period of time. The compensable injury is held to occur at the later time. For time limitation purposes, the injury in such cases occurs when, because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). ANALYSIS On appeal, both claimant and defendants raise the issue of the extent of claimant's disability. The medical testimony of Dr. Ferlic consisted of a prediction of no "disability" following claimant's third and final surgery. The reports from Dr. Ferlic are unclear as to whether he is referring to a lack of impairment altogether, or, as stated in his report, a lack of impairment as a result of the third surgery. Dr. Ferlic stated he expected claimant to return to her pre-operative state following the surgery. The record clearly shows that claimant's pre-operative state prior to the third surgery did involve impairment of claimant's right hand. Claimant's testimony establishes that she does continue to experience pain in her right hand. The testimony of Dr. Blume, who examined claimant subsequent to Dr. Ferlic, confirms an ongoing disability. Dr. Cotton's examination of claimant was for headaches and did not address the right upper extremity. Dr. Fitzgibbons, who first examined claimant, assigned a permanent impairment rating of seven percent of the upper right extremity. Dr. Fitzgibbons examined claimant at a point in time much prior to her treatment by Dr. Ferlic and her examination by Dr. Blume. In addition, Dr. Fitzgibbons did not examine claimant after her third surgery. Claimant clearly has a loss of function of her right hand. This loss of function affects her ability to perform her work. However, claimant is able to continue with her job at Farmland Foods. Claimant is determined to have a permanent physical impairment of seven percent of the right arm. The opinion of Dr. Fitzgibbons, although giving a corresponding result of seven percent impairment, is given limited weight in light of the remoteness in time of that opinion in relation to claimant's present condition. The conclusion that claimant has seven percent permanent impairment of the right arm is reached after analysis of all of the evidence in the record. BLUME V. FARMLAND FOODS Page 5 That portion of the deputy's decision that set claimant's rate at $217.37 per week, established a cumulative injury date of August 31, 1981, and ordered defendants to pay the costs of the medical examination of Dr. Blume were not raised as issues on appeal. Therefore, the deputy's decision in regard to those matters stands affirmed. FINDINGS OF FACT 1. Claimant worked for defendant Farmland Foods on a meat packing line. 2. Claimant's duties involved the repetitive use of her hands and arms and the use of a "wizard knife." 3. Claimant experienced pain and numbness in her right hand and the "locking" of her right ring finger after using the wizard knife. 4. Claimant was diagnosed as suffering deQuervain's tenosynovitis of the right hand. 5. Claimant's condition was limited to the right upper extremity and did not extend beyond the shoulder joint. 6. Claimant's condition was first diagnosed as permanent in November of 1981. 7. Claimant's date of injury is August 31, 1981. 8. Claimant received medical ratings of permanent partial impairment of seven percent of the right upper extremity and 13 percent of the right hand. 9. Claimant underwent three surgeries to relieve her right hand and arm condition. 10. Claimant remained employed at Farmland Foods at the time of the hearing and continued to experience pain and a lack of full movement in her right hand and arm. 11. Claimant's rate is $217.37 per week. CONCLUSIONS OF LAW Claimant suffered a cumulative injury on August 31, 1981 that arose out of and was in the course of her employment with defendant. Farmland Foods. Claimant has an impairment of seven percent of the right arm as a result of her work injury of August 31, 1981. WHEREFORE, the decision of the deputy is affirmed. BLUME V. FARMLAND FOODS Page 6 ORDER THEREFORE, it is ordered: 1. That defendants shall pay to claimant seventeen point five (17.5) weeks of permanent partial disability benefits at a rate of two hundred seventeen and 37/100 dollars ($217.37) per week from November 2, 1981. 2. That defendants shall pay claimant the total sum of two hundred and no/100 dollars ($200.00) as reimbursement for the evaluation by Dr. Blume. 3. That defendants shall pay accrued weekly benefits in a lump sum. 4. That defendants shall pay interest on weekly benefits awarded herein from November 2, 1981. 5. That defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. That defendants shall file an activity report upon payment of this award 25 requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of December, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ FRANK ROCHWICK, JR., Claimant, FILE NO. 719389 VS. A R B I T R A T I 0 N KNUTSON CONSTRUCTION CO., D E C I S I 0 N Employer, and U.S. INSURANCE GROUP, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Frank Rochwick, Jr., against his employer, Knutson Construction Company, and its insurance carrier, U.S. Insurance Group. Claimant alleges that he sustained a compensable injury to his back on October 20, 1982 and seeks an award of compensation for healing period, permanent disability and payment of medical expenses. The issues presented by the parties at the time of hearing are determination of claimant's entitlement to compensation for healing period; his entitlement to compensation for permanent disability; determination of the correct rate of compensation; and whether or not the employer is liable for payment of a recently incurred medical expense in the amount of $19.00. The case was heard at Davenport, Iowa on May 29, 1986 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from claimant, claimant's exhibits 1 through 13, and defendants' exhibits A through F. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at hearing was considered when deciding the case. Frank Rochwick is a 53 year old married man who has one minor son. Claimant resides at Riverside, Iowa. Claimant's formal education ended with the fourth grade in Los Angeles, California. Following that time, he spent approximately half of his life in penal institutions until he was paroled from the Iowa Men's Reformatory when he was approximately 35 years of age. Claimant testified that his ability to read, write and perform mathematical computations is limited. Following his release from the Iowa Men's Reformatory, claimant became a concrete finisher and practiced that trade for approximately 17 years. The work, which generally consists of pouring and finishing concrete, requires occasional shoveling of cement, and finishing it with trowels. Claimant stated,that the heavy part is striking off, a process which involves bending over or squatting down and pushing and pulling wet cement. Claimant had worked as a foreman for a cement crew where he supervised a few as two or as many as 15 other cement finishers. He stated that a foreman is a worker as well as a supervisor in the cement industry. Claimant's work experience includes general construction labor, work in an institutional kitchen, shoe repair, refereeing sports events and work in a laundry. Claimant testified that on October 20, 1982 he was working as a cement finisher involved in construction of the new University of Iowa basketball arena. He testified that while walking through mud between buildings he slipped on a metal rod and fell, striking his back on the edge of an eight inch concrete slab. Claimant testified that he laid there briefly and then stood up using a wall for support. He testified that when he attempted to work he found himself twisting when he bent over. He reported the incident to a supervisor and sought medical care from D. G. Settler, M.D., in Kalona, Iowa. Claimant testified that he was then experiencing pain in his back which extended into his left leg. He reported that he had suffered a sprained back on other occasions but that the prior events had not left any permanent problems and that he was not under a doctor's care at the time when he fell. Dr. Settler treated claimant with diathermy and anti-inflammatory medications. When claimant's complaints did not resolve, Dr. Settler referred claimant to Michael M. Durkee, M.D., an orthopedic surgeon in Iowa City, Iowa. (Exhibit 2). Claimant was examined by Dr. Durkee on December 8, 1982. Dr. Durkee found claimant's left knee jerk reflex and the strength of the left quadricep to be reduced. He also noted sensory changes throughout the entire left lower extremity. X-rays showed claimant to have slight degenerative changes throughout his back and with well maintained vertebral bodies and with normal disc spaces except that the L3-4 space appeared to be narrowed. Treatment in the nature of bedrest and prescription medication was directed. (Ex. 4). Dr. Durkee diagnosed claimant's condition as a left L4 nerve root impingement. Claimant was started on exercise therapy under the directions of Stan Christensen, a physical therapist at the Pain Management Center in Iowa City, Iowa. Reports from Christensen and Dr. Durkee showed that claimant was making some improvement until he reported twisting and hurting himself in early March, 1983. (Ex. 3, page 1, Ex. 4, pages 3 & 4) Claimant continued treating with Mr. Christensen but without making significant improvement. On April 23, 1983, Dr. Durkee, in a report to the insurance carrier stated: ...He is adamant that he does not wish to consider surgery. This includes chymopapain. I see no sense in proceeding with further work up. We will finalize his disability. ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 3 On examination he still has findings compatible with a left L4 nerve root impingement. His rating at the present time is felt to be compatible [sic] with moderate persistent pain and stiffness aggravated by heavy lifting with necessary modification of activities. He is given a 15% whole body permanent [sic] physical impairment and loss of physical function to the whole body. (Ex. 5) Claimant continued receiving physical therapy from Mr. Christensen through May 6, 1983. (Ex. 3, p. 2) He then saw Dr. Durkee again on August 31, 1983 and again on September 21, 1984. On neither of the subsequent visits was any actual care or treatment indicated by the doctor's notes. At the visit of September 21, 1984, Dr. Durkee stated: "...His physical examination is basically unchanged from his previous visits. He seems to be stabilized. He doesn't seem to be improving. He states he is worse. I feel he has actually reached maximum benefit time-wise [sic] as far as recuperation." When seen on February 28, 1985, an estimated functional capacity form which appears in the record as claimant's exhibit 10 was completed but it does not appear that treatment of any other type was performed. On January 16, 1984, claimant was evaluated by Harry Honda, M.D. Dr. Honda found claimant to be free from paravertebral muscle spasm, weakness or atrophy of the lower extremities and scoliosis of the lumbar spine. He found claimant to walk normally. Dr. Honda did, however, identify diminished pain perception in the left foot and in the lower left leg. Under the direction of Dr. Honda, a CT scan of the lumbar spine was performed which showed only hypertrophy of the facet joint without any disc herniation. He diagnosed claimant as having an L5 radiculopathy of uncertain origin. He noted that claimant's facet joint problem could have been aggravated by the work accident. (Ex. 6 & 8) In 1983 claimant was involved in a motor vehicle accident. He testified that the injury sustained did not include his back. Dr. Settler also concluded that the injury had no effect upon claimant's back. (Ex. 7) Since the injury claimant has also experienced cardiac problems and digestive tract problems. Claimant testified that he did not feel that those problems were related to the injury of October 20, 1982 and the evidence in the record does not contain any indication that the medical personnel who have treated claimant have felt that the ulcer or cardiac problems are in any way related to the October 20, 1982 injury. Claimant was evaluated by G. Brian Paprocki, a vocational consultant. Paprocki felt that claimant was essentially unqualified to perform any work except unskilled physical labor. He felt that claimant's physical restrictions as indicated by Dr. Durkee restricted him from a substantial number of jobs within that classification. He also felt that claimant's age, prison ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 4 record, lack of education and minimal transferrable work skills from past employments were a serious impediment to gainful employment. Paprocki felt that claimant was capable of performing competitive employment but that locating suitable employment could require professional assistance and that the employment would undoubtedly provide a rate of earnings much less than what claimant had earned as a cement finisher. (Ex. 1) Paprocki did not provide information concerning job availability in the Riverside and Iowa City areas for individuals with claimant's abilities and restrictions. Claimant also met with Douglas B. Schoenborn, M.A., CRC, CRIS. Schoenborn, based upon essentially the same information as relied upon by Paprocki, found that there were numerous unskilled positions available in the labor market that would offer some type of employment to claimant. He listed a number of positions in his report, exhibit B, but did not make any specific recommendations. Claimant testified that he currently carries nitroglycerin for his heart and takes medication for his ulcer. He stated that he is not on prescription medication for his back but does take four or five Tylenol daily for it. He testified that he continues to perform the exercises recommended by Dr. Durkee. Claimant testified that he has not returned to work, has not sought employment and was never instructed to return to work by any of his doctors. He generally confirmed his physical capabilities and restrictions as indicated by Dr. Durkee in exhibit 10. In particular, he stated that driving as much as 50 miles produces pain in his low back and upper buttocks. He stated that his ability to mow the lawn is limited to approximately 15 minutes before a rest becomes necessary. He reported that he has tried to finish cement on three different occasions but has been unable to due to pain. Claimant reported that he formerly hunted and hiked and bowled but has ceased those activities due to the problems with his back and leg. Claimant testified that he has continued to be engaged in a long term remodeling project of his home but that his son carries sheetrock and that claimant himself avoids lifting anything heavy. Claimant testified that his wife is employed at the University of Iowa Laundry. He stated that there is no work available in Riverside,,Iowa. Claimant related that in the past his prison record had been a detriment to obtaining employment. Claimant testified that he has steadfastly refused any surgical treatment for his back condition. He has refused to allow a myelogram to be performed. Claimant testified that he has a sister in California who was nearly paralyzed through what was purported to be minor surgery on her spine. He reported that he observed people who were paralyzed by spinal procedures performed at a state hospital in California. Claimant stated that Dr. Honda had not recommended surgery. Claimant related that he has seen bad results from surgery with other construction workers and that the doctors have not given him any promises or assurances of a good result from surgery. Claimant reported that he has not looked for any of the types of work recommended by Schoenborn. He stated that he has ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 5 not looked for work related to the cement finishing industry and has not looked for any other types of work because he does not know of anything he could do. He related, however, that he has tended bar and discussed operating a tavern with a friend. He testified that he has also considered opening an army surplus store. Claimant felt that in general his back is a little better now than it was when he started seeing Dr. Durkee and that swimming in his pool at home is about the only activity which seemed to help his back condition. Claimant reported that he has not looked into financing for entering business on his own and that he has no capital with which to start a business. APPLICABLE LAW AND ANALYSIS It was stipulated by the parties in the prehearing report that claimant was injured as he alleged. It was further stipulated that a causal connection existed between the injury and permanent disability with which claimant is now afflicted. Claimant's entitlement to compensation for healing period under section 85.34(l) is at issue. Since claimant has not returned to work his healing period terminates at the time when it was medically indicated that significant improvement from the injury was not anticipated. It is evident that claimant has not, and will not, become medically capable of performing the type of work which he performed as a cement finisher at the time of injury. The healing period ends at the time the physician determines that further improvement is not anticipated. It is not ended at the time when hindsight shows that further improvement ceased to occur. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984). Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981). When Dr. Durkee evaluated claimant on April 20, 1983, he indicated that he did not expect any further significant improvement in claimant's condition. (Ex. 5) The fact that he later confirmed that earlier determination on May 18, 1984 does not extend the healing period entitlement. Claimant's physical therapy treatment with Mr. Christensen was ended on May 6, 1983. (Ex. 3) It is therefore concluded that claimant's entitlement to healing period ended on April 20, 1983 and that his entitlement to compensation for permanent partial disability became payable commencing on April 21, 1983 in accordance with section 85.34(2). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 6 v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Claimant is limited physically and academically. His employability is further impaired by his criminal record and limited work experience. On the other hand, the criminal record is now sufficiently remote that its effect upon his employability would be expected to be much less than it was 15 years ago. Claimant's level of functioning as exhibited at hearing and as evidenced by the fact that he has successfully supervised other employees, is well above what one would normally expect of a person with only a fourth grade education. The fact that claimant was able to function as a foreman is an indication that his ability to read blueprints and plans may be somewhat better than his testimony would otherwise lead one to believe. The law recognizes a duty on the part of an injured worker to mitigate damages, so to speak, by obtaining prompt medical treatment and by cooperating with reasonable medical care. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Stufflebean v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943). Although claimant has been reluctant to undergo surgery, that reluctance is not found to be unreasonable. As a practical matter, the record fails to contain any clear concise recommendation for performance of any particular surgical procedure. The lengths to which a person will go in order to obtain relief from their symptoms is a factor which can be considered when evaluating the severity and extent of those symptoms. Claimant is not physically capable of working as ' a cement finisher, but is employable as indicated by Paprocki and Schoenborn. He has no demonstrated aptitude for academic pursuits and at age 53 the feasibility of major retraining is limited. His future employment is limited to sedentary or light work which requires minimal reading, writing or math. Such work typically provides a relatively low rate of pay. When all applicable factors are considered, it is found that claimant has a 35 percent permanent partial disability of the body as a whole when the same is evaluated industrially. The rate of compensation is a subject of dispute in this case. Claimant's earnings during the 13 weeks proceeding the injury in accordance with section 85.36(6) are determined from exhibit F. The weeks considered are those identified at lines 27 through 41 of the exhibit except for lines 38 and 39. This is in keeping with the rule that the 13 weeks are weeks during which the employee actually worked. Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Commissioner Report, 294 (1981); Lewis v. Aalf's Manufacturing Co., I Iowa Industrial Commissioner Report, 206 (1980). Computations based upon the amount paid and hours worked shows claimant's hourly rate of pay to have been $14.67 per hour. During the 13 applicable weeks he worked 468 hours which provides a total renumeration of $6,865.56. When divided by 13 the average weekly earnings are $528.12. It should be noted that Rule 500-8.2 is applied in making these computations and that the total amount listed does not include a premium for overtime pay but rather applies it at the normal hourly rate. With the stipulated status of married with three exemptions the 1982 benefit booklet shows the correct rate of compensation to be $313.82 per week. ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 7 Claimant seeks payment from defendants for a medical expense in the amount of $19.00 incurred with Dr. Durkee for the examination of September 21, 1984. It is not unreasonable that a treating physician would reevaluate a patient after a long period of time has elapsed in order to monitor whether or not the condition is changing. Defendants will therefore be held responsible for payment of the same. FINDINGS OF FACT 1. On October 20, 1982 claimant was a resident of the State of Iowa employed by Knutson Construction Company in the State of Iowa. 2. Claimant was injured on October 20, 1982 when, while in the course of his employment, he slipped on a rod and fell striking his back on a concrete slab. 3. At the time of injury claimant was employed by Knutson working as a cement finisher. 4. Following the injury claimant was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from October 20, 1982 until April 20, 1983 when it became medically indicated that further significant improvement from the injury was not anticipated. ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 8 5. Claimant is generally found to be a credible witness but he is found to have understated his intellectual abilities to a moderate degree. 6. Claimant worked 468 hours during the 13 weeks that he worked prior to the week in which the injury occurred. His rate of pay was $14.67 per hour. 7. Claimant's evaluation by Dr. Durkee on May 18, 1984 constituted reasonable medical care in the nature of a follow-up examination for the purpose of monitoring claimant's condition. The charge in the amount of $19.00 made for the evaluation is fair and reasonable. 8. Claimant has a 15 percent permanent functional impairment of the body as a whole due to the condition of his back. He has a limited education, limited reading, writing and math skills and limited physical capabilities. Claimant's prior work experience appears to be limited generally to moderate to heavy physical labor. Claimant has experience, however, in several fields and appears to be of at least average intelligence and emotionally stable. He has not appeared interested in returning to gainful employment unless it is employment of the type which pays the level of wages that he earned as a cement finisher. He has not made a good faith effort to find work that is appropriate to his abilities and restrictions. 9. Claimant has a 35 percent permanent partial disability of the body as a whole when the same is evaluated industrially. 10. Claimant's cardiac condition and ulcer are not related to the injury of October 20, 1982. 11. Claimant's refusal to undergo a myelogram or surgery if the same were to be strongly recommended by his treating physicians is not unreasonable and does not constitute a failure to minimize or mitigate damages. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury claimant sustained to his back on October 20, 1982 arose out of and in the course of his employment with Knutson Construction Company. 3. Claimant's healing period entitlement under section 85.34(l) is 26 1/7 weeks commencing October 20, 1982. 4. Claimant's disability, when evaluated industrially is 35 percent permanent partial disability of the body as a whole which entitles him to receive 175 weeks of compensation payable commencing April 21, 1983. 5. Claimant's rate of compensation is $313.82 per week for both healing period and permanent partial disability. 6. Defendants are responsible for payment of claimant's medical expenses with Dr. Durkee in the amount of $19.00 under ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 9 the provisions of section 85.27 of the Code. 7. Where a worker's refusal to undergo certain types of medical treatment is not unreasonable the extent of his permanent disability is evaluated under the circumstances known to exist. No reduction or adjustment of the award due to the refusal to undergo recommended care is warranted. ORDER IT IS THEREFORE ORDERED that defendants pay claimant twenty-six and one-seventh (26 1/7) weeks of compensation for healing period at the rate of three hundred thirteen and 82/100 dollars ($313.82) per week commencing October 20, 1982. IT IS FURTHER ORDERED that defendants pay claimant one hundred seventy-five (175) weeks of compensation for permanent partial disability at the rate of three hundred thirteen and 82/100 dollars ($313.82) per week payable commencing April 21, 1983. IT IS FURTHER ORDERED that defendants pay claimant nineteen and no/100 dollars ($19.00) in medical expenses under the provision of section 85.27. IT IS FURTHER ORDERED that defendants receive credit for the one hundred seventeen and three-sevenths (117 3/7) weeks of compensation previously paid at the rate of three hundred nine and 78/100 dollars ($309.78) per week, said credit to be in the total amount of thirty-six thousand three hundred seventy-seven and 16/100 dollars ($36,377.16). The entire amount of the award for permanent partial disability is past due and owing and shall be paid to claimant in a lump sum together with interest pursuant to section 85.30. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Industrial Commissioner Rule 500-4.33. IT IS FURTHER ORDERED that defendants file a claim activity report as requested by this agency pursuant to Rule 500-3.1. Signed and filed this 24th day of September, 1986. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John H. Westensee Attorney at Law Plaza Office Building Rock Island, Illinois 61201 ROCHWICK V. KNUTSON CONSTRUCTION CO. Page 10 Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309-2462 1402.40; 1802; 1803 2501; 2700; 3001 Filed September 24, 1986 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ FRANK ROCHWICK, JR., Claimant, FILE NO. 719389 VS. A R B I T R A T I 0 N KNUTSON CONSTRUCTION CO., D E C I S I 0 N Employer, and U.S. INSURANCE GROUP, Insurance Carrier, Defendants. _________________________________________________________________ 1402.40; 1802; 1803; 2501; 2700; 3001 Fifty-three year old former cement worker who suffered a back injury in a fall was held not to have acted unreasonably in refusing to undergo surgical treatment of his back condition where the same was not strongly recommended by the physicians and he observed other individuals who had less than favorable results following back surgery. Claimant's healing period was terminated at the time the physician assessed a final impairment rating and offered no further treatment. The healing period was not extended further even though, approximately one year later, that same physician stated in a report that the claimant had reached maximum medical recuperation. Claimant's disability was fixed at 35 percent, industrially, where it was evident that he would not be able to return to his prior employment and that any employment that he would obtain would most likely provide a significantly lower rate of earnings. Claimant's rate of compensation was computed based upon the hours he actually worked during the preceding 15 weeks, prior to the injury. Two of the 15 weeks were excluded where claimant did not perform any work during those weeks. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARREL L. CRAIN, Claimant, File No. 719428 vs. A P P E A L NEVADA RURAL FIRE PROTECTION ASSOCIATION, D E C I S I 0 N Employer, F I L E D and FEB 26 1988 AID INSURANCE SERVICE, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding claimant healing period benefits, medical expenses and permanent partial disability benefits as a result of an injury on September 29, 1982. The record on appeal consists of the transcript of the arbitration proceeding; joint exhibits 1 through 9; claimant's exhibits 1 through 6; and defendants' exhibits A through D. Both parties filed briefs on appeal. ISSUES 1. Whether claimant's disability is causally related to his injury of September 29, 1982; 2. The extent of claimant's disability; and 3. Whether defendants are responsible for payment of certain medical bills for claimant. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Briefly stated, claimant was employed by B & D Auto Parts of Nevada, Iowa. His work involved bending, stooping, lifting up to 50 pounds at a time, and driving approximately 300 miles per week. Claimant also served as a volunteer fireman for defendant Nevada Rural Fire Protection Association. In 1976, claimant was responding to a fire alarm and ran into a parked car. He did not lose any time from work as a result of this injury, but did experience pain in his back. In February of 1980, he visited John A. Grant, M.D., who discovered a ruptured disc at the L4-5 level on the left. A laminectomy was performed by Dr. Grant and the disc was excised. Claimant was off work for three months, then resumed his work. Claimant testified he had no further problems until August 1981, when he reported to Dr. Grant back and leg pain, especially after driving. In March 1982, claimant experienced a slip on the ice while getting ready to make a delivery for B & D Auto Parts. He again experienced pain and complained of difficulty in riding in a car. Claimant told Dr. Grant his back problem had "never settled" since September 1981. Dr. Grant performed a myelogram, which showed "some deformity of the nerve root at the L4-5 level." Claimant was treated with epidural block and released back to work. On September 29, 1982, claimant was assisting at a rural fire when he slipped on grass made wet by a portable water tank he was operating. Claimant experienced immediate pain and had to lie down. Claimant's fellow firefighters, Steven Herr and Harold Mitchell, both observed claimant in pain immediately after the fall. Although he drove home, his wife testified he could not undress himself. Claimant returned to his job the next day, but three days later he could not dress himself for work. Steven Herr opined that claimant had a reputation for truthfulness. Harold Mitchell testified that claimant made parts deliveries to his business, and that prior to September 29, 1982, claimant had no visible difficulty with lifting while carrying out those deliveries. Claimant stated that after the fall, he experienced increased back and leg pain, as well as left testicle pain. Claimant was hospitalized by Dr. Grant for two weeks and treated with traction, heat, medication and injections. Claimant testified that after his March 1982 slip, injections relieved his pain, but after his September 1982 fall, injections did not help. On November 22, 1982, claimant underwent a second myelogram, which Dr. Grant stated showed an irregularity of the L4-5 nerve root, but "the degree of irregularity is much less than it was on the examination of 3/18/82." He stated that "this appearance may be due to postoperative change. It is also possible that there is a fragment of nucleus pulposus which is extended laterally and is less evident than it was previously." On December 9, 1982, claimant underwent a CT scan, which, according to George H. Holmes, M.D., had "no recurrent disc protrusion identified." Another CT scan was conducted on December 28, 1982 and Dr. Grant stated that a bulge at the L4-5 level and scar tissue was noted. In December 1982, Dr. Grant stated that claimant "was going to try to return to work, although he was still having trouble." However, by January 14, 1983, Dr. Grant felt "he should not return to work until able to resume most of his regular employment." On January 24, 1983, Dr. Grant stated: "It appears to me that the cause of his current difficulties are directly related to the September, 1982 injury but what percentage of the current symptoms are directly due to the fall and what percentage might be due to aggravation of pre-existing problems is impossible to state." Claimant stated that he continued to experience both pain and a "catch" in his back. Claimant indicated that since no relief for his discomfort had been obtained, he asked Dr. Grant for a referral to Mayo Clinic for a second opinion. An electromyography was conducted at Mayo Clinic on February 17, 1983. A psychiatric examination of claimant at Mayo Clinic on February 21, 1983 concluded: "He does not appear to...be exaggerating or dramatizing his symptomatology." On February 28, 1983, Dr. Grant stated: I had a great deal of difficulty trying to sort out what percentage of his current symptoms are due to the fall and what percentage might be due to aggravation of a pre-existing problem. On that basis I will quote verbatim from the "Manual for Orthopedic Surgeons In Evaluating Permanent Physical Impairment" and perhaps try and establish from this what percentage of his current difficulties are due to the situation before the fall and what are due to the condition after the September, 1982 fall. In this booklet which I use quite frequently the "surgical excision of disc, no fusion, good results, no persistent sciatic pain" there is awarded a 10% whole body permanent physical impairment and loss of physical function of the whole body. The next step in this sequence states that "surgical excision of a disc, no fusion, moderate persistent pain and stiffness aggravated by heavy lifting with necessary modification of activities" leads to a percent whole body permanent physical impairment and loss of physical function of the whole body of 20%. It would be my feeling that based on these considerations he had a 10% impairment as a result of his original surgery leading up to the time of the subsequent fall. I would then estimate that the fall has produced the rather persistent pain and stiffness and placed him in a category of 20% partial permanent physical impairment. As you must realize this is an estimate based on my judgement [sic] but it is the closest I can come to trying to break down the differences. (Jt. Ex. J4, P. 19) On April 18, 1983, Dr. Grant opined: Based on the way this man appears to me, I feel he has a 20 percent partial permanent physical impairment and loss of physical function of the body as a whole. This is an impairment rating, not a disability rating. ...I certainly think that it would be advisable for him to look into some type of further training for a more sedentary occupation requiring less lifting, less repeated bending, and less highway travel....Personally, I would think it unlikely that he will ever return to the type of work he was doing before and that the most advantageous approach to this man would be attempted training at a more sedentary type activity. (Jt. Ex. J4, p. 20) On June 21, 1983, the Mayo Clinic, through Dr. White, released claimant to work at sedentary jobs. The claimant testified that at that point, he did not feel capable of returning to work, had no relief from his pain, could not stand physical activity, and travel was hard on him. He stated he could no longer do household chores such as mowing or gardening. His wife testified that claimant wanted to return to his work at B & D, but was not capable of doing so. Claimant was engaged in walking and swimming therapy throughout the summer of 1983. Dr. Grant advised claimant in August 1983 that he did not recommend surgery, and that there would be no significant improvement. On October 5, 1983, claimant was examined by Dr. Peter Wirtz for purposes of determining his continuing eligibility for disability insurance benefits. Dr. Wirtz reported: This patient has chronic symptoms in his back secondary to his laminectomy and congenital anomalies. In light of his congenital anomalies and the back surgery, he has a restriction of activity from heavy lifting, twisting and bending. Weight limitation would be 25 to 30 pounds, as well as the same for pushing and pulling. This patient's back does not limit standing, walking or sitting activities. Jarring activities such as car or truck activities would be limited only as far as intermittent resting for walking and bending. Orthopaedic impairment is based upon surgery and he has had an L4-5 laminectomy which would be a 5% impairment of the body. This is directly related to his 1980 surgery. The patient, likewise, has congenital anomalies which pre-existed this problem and would be another 5% impairment of the body as a whole because they continue to restrict his functional ability. Injuries since his accident, on a periodic basis, are an aggravation of a pre-existing problem. Each episode of [sic] has healed itself without any increase in his impairment. (Jt. Ex. J6, p. 2) Claimant continued to complain of a "catch" in his back and testicular pain, and stated that he had not experienced either of these symptoms prior to his fall of September 29, 1982. On October 20, 1983, Kenneth Heithoff, M.D., stated: INTERPRETATION: C.T. scan of the lumbar spine shows evidence of previous surgery at the L5-S1 level on the left. There is a small to moderate size disc herniation at the L5-S1 level on the left which extends caudally to underlie the left S1 nerve root. The left S1 nerve root is compressed against the ligamentum flavum and lamina of S1. The L3-4 and 4-5 levels are normal. CONCLUSIONS: Small recurrent free fragment disc herniation L5-S1 on the left with 1 mm. of caudal migration. (Jt. Ex. J9, P. 1) It was noted in the record that claimant suffered a congenital anomaly that could result in the labeling of the L4-5 disc as L5-S1. Dr. Grant referred claimant to the Low Back Institute and Alexander Lifson, M.D., at claimant's request. Dr. Lifson reviewed claimant's CT scan and concluded: This study showed a soft tissue density at the level between the last lumbar and the first sacral segment. It is very difficult for me to differentiate the possibility of a recurrent disc herniation from postoperative fibrosis. If Darrel has a recurrent disc at this level, I believe it could be responsible for irritation of the S2 nerve root and resulting testicular pain. To clarify this diagnosis, we would like to obtain a metrizamide enhanced CT scan of the lumbar spine which can be done on an outpatient basis. (Jt. Ex. J9, p. 6) Dr. Lifson also stated in his deposition that claimant's fall of September 29, 1982 aggravated or exacerbated his preexisting condition. An enhanced CT scan, however, could not be conducted due to a toxic reaction by claimant. Consequently, claimant received a percutaneous radiofacet nerve block, which claimant indicated relieved the symptoms to a degree. On December 7, 1983, claimant began to seek employment again. At a seminar to obtain job seeking skills, he found he could not sit comfortably through the seminar. Claimant was given a lengthy list of possible job placements compiled by North Central Rehabilitation Services of Des Moines, and claimant investigated these. Dr. Grant reiterated his diagnosis on July 15, 1984, stating "[F]rom my standpoint his percentage of partial permanent physical impairment and loss of physical function to the whole body remains as described on February 28, 1983. I feel this is an impairment rating that will not change despite the fact that he may obtain some degree of relief with the treatment that was given." On March 2, 1984, Dr. Lifson performed surgery on claimant's back. He found evidence of a "very extensive" amount of epidural fibrosis, and removed a herniated disc fragment that was compressing the nerve root against the layer of scar tissue. Dr. Lifson stated in his deposition that the nerve impingement claimant suffered could be caused by either the epidural fibrosis from his 1980 surgery or by disc herniation. He stated that the disc herniation could have been caused by a number of factors, including injury, disease, or even slight activity such as coughing or sneezing. Dr. Grant reviewed the results of the above procedures, and stated on March 24, 1984: [I]t appeared to me that the cause of his current difficulties directly relate to the September, 1982 injury. I have also reviewed the consultation report from Doctor Lifson that had been sent to you on March 8, 1984. Based on his statements I really do not feel my opinion is going to change much. The findings at surgery suggest that following the initial operative procedure he had adhesions which may have been present but asymptomatic. It is then very possible that the fall he sustained both in March of 1982 and September of 1982 have aggravated existing adhesions producing the intractable pain he described. We still are faced with the uncertainty of what percentage of his current symptoms relate to each separate incident. I still feel that his current difficulties are directly related to the September, 1982 injury as the major source of symptoms because his March, 1982 injury responded to symptomatic treatment so well and was not associated with much difficulty until the reinjury of September 30, 1982. (Jt. Ex. J4, p. 25) Dr. Grant also expressed the opinion that claimant was not a malingerer. In April or May 1984, claimant stepped into an elevator and again felt the sudden onset of pain in his groin, back and leg. Claimant described the pain as being the same as that experienced after the September 29, 1982 fall although he did not re-experience the catch in his back. Another CT scan was performed on May 30, 1984, and Dr. Heithoff stated: [T]here is epidural and perineural fibrosis extending into the central spinal canal lateral to the fat graft. There is evidence of a prior discectomy with removal of a portion of the plate of L5. There is a strong suggestion of a recurrent free fragment L5-S1 disc herniation underlying the left S1 nerve root and the fat graft. Since this may also represent perineural fibrosis, a metrizamide enhanced CT scan is necessary to distinguish between the two possibilities since the disc visualized at the site of the previous discectomy is low in attenuation values; and an isodense disc herniation cannot be excluded. (Jt. Ex. J9, p. 27) On June 18, 1984, Dr. Lifson again performed surgery and found no disc herniation but a significant amount of prior epidural fibrosis. Following this surgery, claimant indicated his symptoms improved but not to the same extent as following his March 1984 surgery. Both Dr. Grant and Dr. Lifson stated in their depositions that it is difficult to distinguish between epidural fibrosis, or scarring, and recurrent disc herniation. On October 25, 1984, the Institute For Low Back Care assessed claimant's limitations as follows: The patient states he is able to sit for forty-five minutes before feeling an increased discomfort in his low back. With breaks he states he could sit for up to four hours. The patient reports discomfort in his low back after walking approximately thirty-five minutes. He states with breaks he could walk for up to six hours. The patient states he is able to drive a car. He states he is able to drive a manual shift. He denies any difficulty operating the pedals with either foot. He denies any upper extremity gross motor coordination difficulties. FLEXIBILITY: Active range of motion of the lumbar spine is as follows: Flexion 0 to 60 degrees Right side bending 0 to 15 degrees Left side bending 0 to 15 degrees Right rotation 0 to 20 degrees Left rotation 0 to 20 degrees Extension 0 to 15 degrees .... SUMMARY: Today the patient reports intermittent left lower extremity discomfort. He says this is exacerbated by activities which include forward flexion and heavy lifting. He has participated well in caring for his low back in that he has lost considerable weight since his first time seen. He now expresses an interest in returning to work in whatever capacity is available for him. Strength testing showed a grade of normal throughout. He was able to lift 30 pounds and carry 40 pounds with slight report of discomfort. His overall endurance is decreased, and he is in need of a reconditioning program. With care given to limit the amount of repetitive forward flexion and heavy lifting the patient should do well. (Jt. Ex. J9, pp. 40, 41) On October 30, 1984, Dr. Lifson opined: Darrel Crain was first seen at The Institute for Low Back Care on 10/20/83. In consideration of the past history, the initial and follow-up physical examinations, and patient's response to treatment, and the condition in which we found him at the time of the last examination on 7/31/84, he has a 25 percent permanent partial disability to the spine. (Jt. Ex. J9, p. 42) Claimant received employment assistance from Kathryn Bennett of North Central Rehabilitation Services. Claimant contacted numerous potential employers, found employment with an auto dealer and is currently earning approximately $12,400 annually as a service advisor. His employer is satisfied with his work and eventually claimant could earn up to $20,000 in his present position. Kathryn Bennett further stated that claimant was cooperative and motivated toward finding work. His present work does not require bending, lifting, or stooping. She described him as a difficult job placement in light of his strict limitations and three surgeries. Claimant also stated that he attempted to drive a truck to Montana in October 1984, but found that shifting the gears of the truck produced back pain. He testified that since his September 1982 fall, he cannot lift more than 20 pounds, cannot stand longer than one to two hours without a break, sit comfortably, or drive more than 100 miles without stopping. He also indicates he now has testicular pain, and has developed a fear of falling as a result of his three back surgeries. Claimant's exhibit 1, a ruling on a social security disability claim, was not considered on appeal in that a determination of eligibility for social security disability benefits is based on criteria not appropriate to this case. The parties stipulated that claimant's rate of compensation is $379.61. APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of September 29, 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 106-C.J.S. Workmen's Compensation 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251. Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Defendants cannot deny liability in a workers' compensation case and also guide the course of treatment or select the medical care the injured worker receives. Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Reports 16 (Appeal Decision 1981). 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 (Iowa 1980). Apportionment is appropriate where a prior injury or illness independently produces some ascertainable portion of the ultimate industrial disability which exists following the current injury. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). ANALYSIS On September 29, 1982, claimant slipped and fell while working as a volunteer fireman. Two other firemen witnessed the incident and confirmed claimant's statement that he immediately experienced severe back pain and had to lie down. Claimant stated that he also experienced leg pain and left testicular pain, and a "catch" in his back subsequent to the accident, and that these symptoms had not been present prior to his fall. Subsequent to his fall, he can no longer perform the lifting or bending duties of his job. Claimant's co-firemen indicated claimant was a truthful person, and the Mayo Clinic psychiatric report indicated claimant was not exaggerating his symptoms. Although claimant had two back injuries and one back surgery prior to September 29, 1982, these incidents did not result in any inability to perform his duties for B & D Auto Parts other than discomfort while driving. All of the above nonexpert testimony tends to confirm a causal relationship between claimant's present impairment and his injury of September 29, 1982. Dr. Grant expressed the medical opinion on January 24, 1983 that claimant's impairment was caused by his fall on September 29, 1982. He reiterated that opinion on March 24, 1984, after reviewing the results of Dr. Lifson's surgery. Both Dr. Grant and Dr. Lifson opined that claimant's fall of September 29, 1982 aggravated or exacerbated his preexisting condition. There is medical testimony in the record that claimant's back condition could be caused by a disc herniation compressing the nerve root or by epidural fibrosis, or scarring, from his surgery in March 1982, or a combination of these causes. Defendants argue that claimant's impairment is the result of scarring from the 1980 surgery and not the September 1982 fall. Both Dr. Grant and Dr. Lifson indicated that epidural fibrosis and disc herniation are very difficult to distinguish on a CT scan without enhancement. Enhancement was not possible here due to a toxic reaction. Dr. Lifson indicated that if claimant's condition was caused by a recurrent disc herniation, that herniation could be caused by more than one factor. He listed injury, as well as slight activities such as coughing, sneezing, or bending to tie shoes as possible causes. Claimant testified he had had no incident of excessive coughing. The surgery conducted in March 1984 did confirm the presence of disc herniation as well as extensive scarring. Dr. Grant expressed an inability to assign a percentage of causation to either contributing factor. He reaffirmed his opinion that claimant's current impairment was caused by the September 29, 1982 fall based on his observations that claimant's condition improved considerably after the March 1982 surgery but has not improved subsequent to the September 29, 1982 fall. He concluded the present condition was not a result of the scarring from the prior surgery but was the result of the September 29, 1982 fall. Dr. Wirtz opined that although claimant's injuries aggravated his preexisting condition, no further impairment resulted. The opinions of Dr. Grant were based on examinations of claimant on numerous occasions, as well as the surgery he performed on claimant. His opinion remained unchanged even with the benefit of updated information from Dr. Lifson. Dr. Wirtz examined claimant only once. The opinions of Dr. Grant will be given the greater weight. Claimant's injury of September 29, 1982 was a substantial cause of his present impairment. Dr. Grant determined that there would be no improvement in claimant's condition, and thus his disability is permanent. Subsequent to his fall of September 29, 1982, he can no longer bend or lift as he could before. Dr. Wirtz stated that claimant should not lift more than 20-30 pounds. Claimant himself testified he could not lift more than 20 pounds. Both claimant's testimony and that of Kathryn Bennett of North Central Rehabilitation Services show that claimant's prior employment with B & D Auto Parts did involve lifting weights up to 50 pounds. Claimant was able to perform those duties prior to the injury of September 29, 1982, as shown by his testimony and that of Harold Mitchell. Claimant has therefore suffered a loss of lifting ability as a result of his injury. Claimant also testified that since his injury of September 29, 1982, he cannot sit for longer than two hours at a time. His former employment with B & D Auto Parts required him to stand for longer periods than two hours. Since his injury, claimant cannot drive over 100 miles without a rest. His employment at B & D required him to drive approximately 300 miles per week. However, there is evidence in the record to indicate that claimant suffered an inability to drive or ride long distances in a vehicle prior to his fall in September 1982, and therefore this restriction is not attributable to his September 1982 injury. Dr. Lifson rated claimant's condition as a 25 percent impairment of the spine. Dr. Grant opined claimant's prior surgery and its effects would have given claimant a 10 percent permanent partial impairment, and that after his fall of September 29, 1982, claimant now has a permanent partial impairment of 20 percent of the body as a whole. He first gave this opinion on February 28, 1983, reconfirmed it on April 18, 1983, and again reconfirmed it on January 15, 1984. It must be realized that functional impairment is only one of the factors used in determining a person's industrial disability. Claimant was 40 years old at the time of the hearing, with one and one-half years of college education. The record also shows claimant attempted to return to work after his fall, but found he could not perform his job duties. Both he and his wife testified he wanted to return to work. Dr. Grant also opined that claimant was not a malingerer. Kathryn Bennett, of North Central Rehabilitation Services, testified that claimant's motivation to find work was good. Both his former employer and his present employer were pleased with claimant's performance. The Mayo Clinic psychiatric report described claimant's attitude as positive. Although defendants urge that claimant was a malingerer in order to maximize his receipt of various public benefits, and did not seek employment until his eligibility for those benefits had expired, the greater weight of the evidence shows that claimant's motivation to return to work was good. Claimant was unable to return to his prior employment because of an aggravation or exacerbation of his preexisting condition. His income from that position for a nine month period of time up to his injury was $16,877. By extrapolation, his annual income was approximately $22,500. His new employment is at $12,400 annually. The record shows a potential future income of $20,000. Claimant has suffered and will continue to suffer a loss of earning capacity as a result of his fall of September 29, 1982. Taking these factors and all other factors used in determining person's earning capacity into account, claimant presently has permanent partial industrial disability of 40 percent. Because defendants are only responsible for the extent the September 29, 1982 injury aggravated claimant's preexisting condition, a determination of claimant's preexisting disability is necessary so that an apportionment can be made. Dr. Grant stated that claimant has a 10 percent functional impairment of the body from his 1980 surgery. Dr. Wirtz opined that claimant had a preexisting 5 percent impairment from the 1980 surgery, and an additional 5 percent impairment from a congenital disc defect. Under either view, claimant had a 10 percent impairment of the body as a whole as a result of his 1980 surgery. Claimant also had a second back injury in March 1982. The 10 percent functional impairment rating is only one of the factors to be considered. The record shows that claimant was able to return to his work at his job at B & D Auto Parts subsequent to his 1980 surgery, but that he experienced some discomfort in driving. Driving up to 300 miles per week was one of his job duties. Considering these factors and all other factors used in determining a person's earning capacity, claimant's industrial disability prior to September 29, 1982 is determined to have been 10 percent of the body as a whole. In that claimant's medical bills at the Low Back Institute were the result of a referral by Dr. Grant, they were related to his injury of September 29, 1982. This conclusion is not affected by the fact that claimant requested the referral. Dr. Grant made the referral in keeping with his medical judgment. As the bills are causally related to claimant's injury of September 29, 1982, defendants are responsible for them under Iowa Code section 85.27. In addition, as defendants denied liability, they cannot refuse payment because the bills were not authorized. FINDINGS OF FACT 1. Claimant was 40 years old at the time of the hearing. 2. Claimant completed high school and one and one-half years of college. 3. Claimant worked as a salesman for B & D Auto Parts. 4. Claimant's B & D Sales job required him to lift up to 50 pounds and to travel approximately 300 miles per week. 5. Claimant injured his back in 1976 when responding to a fire call as a volunteer firefighter. 6. Claimant underwent a laminectomy in February 1980, resulting in a ten percent permanent partial impairment to the body as a whole. 7. Claimant injured his back in March 1982 when he slipped on some ice. 8. Claimant injured his back on September 29, 1982 while working as a volunteer firefighter for the Nevada Rural Fire Protection Association. 9. Claimant's fall on September 29, 1982 materially aggravated claimant's preexisting back condition. 10. Subsequent to the fall on September 29, 1982, claimant had a permanent partial impairment to the body as a whole of 20 percent. 11. Subsequent to September 29, 1982, claimant has back pain and is physically unable to drive extensive distances, to lift over 30 pounds, or bend on a regular basis. 12. Claimant can now only perform sedentary or light duty jobs and currently works as a service advisor for an auto dealer at an annual salary of $12,400. 13. Claimant earned more than $12,400 annually prior to his injury on September 29, 1982. 14. Claimant is not a malingerer. 15. Claimant's physical condition is not likely to improve significantly in the future. 16. Claimant reached maximum healing on June 21, 1983. 17. Claimant's stipulated weekly rate of compensation is $379.61. 18. Claimant's medical bills relating to the Low Back Institute are causally related to his injury and treatment. 19. Prior to September 29, 1982, claimant had a permanent partial disability of 10 percent of the body as a whole. 20. As of the date of hearing, claimant had a permanent partial disability of 40 percent of the body as a whole. 21. As a result of his injury of September 29, 1982, claimant has a permanent partial impairment of 30 percent of the body as a whole. CONCLUSIONS OF LAW Claimant established by a preponderance of the evidence he sustained an injury on September 29, 1982 that arose out of and in the course of his employment with the Nevada Rural Fire Protection Association. Claimant established by a preponderance of the evidence there is a causal connection between his injury of September 29, 1982 and his claimed disability. Prior to September 29, 1982, claimant had a permanent partial disability of 10 percent of the body as a whole. As of the date of hearing, claimant had a permanent partial disability of 40 percent of the body as a whole. As a result of his injury of September 29, 1982, claimant has a permanent partial impairment of 30 percent of the body as a whole. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant one hundred fifty (150) weeks of permanent partial disability benefits at a rate of three hundred seventy-nine and 61/100 dollars ($379.61) per week from June 21, 1983. That defendants are to pay unto claimant healing period benefits at a rate of three hundred seventy-nine and 61/100 dollars ($379.61) per week from September 29, 1982 through June 20, 1983, less any days claimant actually worked during that period. That defendants shall pay claimant's medical bills incurred with the Low Back Institute. That defendants shall pay accrued benefits in a lump sum, and pay interest pursuant to section 85.30, The Code. That defendants shall be given credit for benefits already paid to claimant. That defendants are to pay the costs of this action. That defendants shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by the agency. Signed and filed this 26th day of February, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Max Burkey Attorney at Law 211 Shops Building Des Moines, Iowa 50309 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50307 1108.50-1803-1806-2501 Filed February 26, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARREL L. CRAIN, Claimant, File No. 719428 vs. A P P E A L NEVADA RURAL FIRE PROTECTION ASSOCIATION, D E C I S I 0 N Employer, and AID INSURANCE SERVICE, Insurance Carrier, Defendants. 1108.50 Claimant proved a causal connection between his disability and his work injury where the record showed claimant was able to perform his work duties before the injury but not after, and where medical testimony was to the effect that claimant's prior back injuries were aggravated by his fall. 1803 - 1806 Claimant proved entitlement to disability benefits equivalent to 30 percent of the body as a whole where the record showed a loss of earnings, a lifting restriction, an inability to stand or sit for any length of time and a rating of impairment of 40 percent of the body as a whole. Claimant's prior injury was determined to have resulted in a 10 percent industrial disability, which was apportioned to give claimant 30 percent industrial disability as a result of this injury. 2501 Defendants are responsible for claimant's medical bills where defendants denied liability and where said medical bills were the result of a referral by the treating physician, even though claimant requested the referral.