Page 1 before the iowa industrial commissioner ____________________________________________________________ : RONALD R. BENTON, : : Claimant, : : File Nos. 721933 vs. : 754493 : HYMAN FREIGHTWAYS, : 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 : EXCALIBUR INSURANCE COMPANY : by IOWA INSURANCE GUARANTY : ASSOCIATION, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case These are proceedings in review-reopening upon claimant's petitions filed March 16, 1989. Claimant sustained back injuries on November 26, 1982 (file number 721933) and September 20, 1983 (file number 754493). Following a hearing on April 17, 1986, an arbitration decision was filed on April 25 of that year finding that claimant had sustained an industrial disability of 24 percent, two-thirds of which was attributable to the 1982 work injury and one-third of which was attributable to the 1983 work injury. Defendants thereupon appealed and an appeal decision was issued on December 16, 1986 which discussed the accrual of interest, but otherwise affirmed the arbitration decision. Claimant now asserts that he has undergone a deleterious change in condition and seeks benefits based upon allegedly increased industrial disability. A hearing was thereafter held in Des Moines, Iowa, on June 4, 1990. The record consists of the testimony of claimant and Joe Chavez and joint exhibits 1 through 8. Defendants' exhibit 9 was offered but excluded upon objection. In addition, official notice was taken of both files and the evidence presented at the time of the arbitration hearing. issues Pursuant to the prehearing report, the sole issues presented for resolution include whether claimant has Page 2 undergone a change of condition giving rise to additional industrial disability, and if so, whether there is a causal relationship to either or both work injuries. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Pursuant to the appeal decision filed on December 16, 1986, claimant's work with defendant Hyman Freightways consisted of dock work and the delivery and pick up of freight as of November 29, 1982, when he injured the disc at L5-S1 requiring surgery in March, 1983. The surgical treatment consisted of a bilateral discectomy, neuroforaminotomies and the removal of free fragments and calcified disc for alleviation of symptoms. On June 29, 1983, claimant was released for full duty, but continued to have lingering back pain with work activity. On September 20, 1983, claimant reinjured his lower back by fully herniating the same disc. Additional surgery to fuse the vertebrae at this level was performed in January 1984. Claimant returned to light-duty work in July 1984 and was released to full-duty work in August of that year. He continued to suffer lingering pain and recurrent episodes from work activity. By reason of functional impairment and physical restrictions following both work injuries, claimant as of April 17, 1986 was unable to lift heavy or bulky objects, but was able to function in his normal job as a dock worker and driver with the assistance of mechanical devices and accommodations made by Hyman Freightways. Claimant continued to suffer recurrent flare-ups of back pain while performing his normal duties which necessitated occasional absences and medication. It was found that claimant had not suffered a significant loss in actual earnings from employment, but his future loss of earnings, if any, was largely dependent upon the availability of continued employment with Hyman. Claimant was found to be highly motivated to remain employed despite his physical impairment, and was then 34 years of age, had the equivalent of a high school education and exhibited average intelligence. Claimant was 38 years of age at the hearing of this cause. His work responsibilities remained the same as a driver and dock worker. Claimant agreed he could still perform that work, but due to increasing pain, has additional difficulties and must take more care in the performance of his duties. He has performed essentially the same work for Hyman and a predecessor employer since 1973. Hyman Freightways continues to accommodate him and claimant Page 3 is satisfied with his job and intends to spend the rest of his career in the same work. He occasionally misses work due to pain, and has done so since 1986. However, he generally works 40 or more hours per week, and occasionally as many as 60 hours per week. Medical records reflect that he is now missing less time from work than he was in 1986. However, this pattern is properly attributable to claimant's courageous efforts to cope with his disability. As was true at the time of the arbitration hearing, claimant's continued back problems have not affected his actual earnings. Joe Chavez, director of safety and compliance for Hyman Freightways, testified that claimant is capable of doing his work and defendant is satisfied with his job performance. Defendant instituted a general program of light-duty work to specifically accommodate claimant and continues to do so. Claimant's income has actually increased because his hourly wage has increased per negotiations with his bargaining unit. Claimant's treating surgeon was William R. Boulden, M.D. Dr. Boulden testified by deposition taken May 31, 1990. Prior to the arbitration hearing, the only medical restriction Dr. Boulden imposed was the use of proper back mechanics. Following the fusion surgery, Dr. Boulden believed that claimant had sustained a 15 percent permanent partial impairment to the body as a whole. One-third of that rating was attributable to the fusion surgery. Claimant saw Dr. Boulden with back pain complaints on three occasions in May 1986. Dr. Boulden concluded that the pain arose from developing looseness of metal rods used in the fusion surgery. The fusion was stable, but loosening rods can cause irritation. Accordingly, additional surgery was performed on June 2, 1986 to remove the rods. Dr. Boulden did not believe that removal of the rods increased impairment or disability. Claimant complained of pain on a number of occasions subsequently, typically following unusual exertion at work, but Dr. Boulden believed these to be instances of soft tissue strain or sprain and has found no increased impairment attributable to either subject work injury. He has not assessed claimant's impairment rating as being higher, nor have additional medical restrictions been imposed (Dr. Boulden recommended against claimant resuming work as an over-the-road truck driver, work he had previously done, but claimant agreed that this physician recommended against that work prior to the 1986 hearing). In his deposition testimony, claimant Dr. Boulden stated: A. Based on my care and treatment of the patient and based on the surgery and based on the clinical findings up through January of 1989, I have found no changes to rate him out with any more Page 4 disability, so, no, I have not changed my opinion. (Dr. Boulden deposition, page 15, line 21 through page 16, line 1) And: A. Let's say my rating, as I stated before, is the same, and if Ron came in and said, "I've had persistent pain. Nothing is helping me. I'm not getting better," and all this stuff, then the rating would have definitely gone up; but as I stated and testified earlier, before he's had a lot of temporary aggravations which we always seem to get down to a good baseline, that he returns to functional use again, so that's why I have not determined that he has anything pathologically changed to persist in his symptoms, to make him persistent in nature. I'm not saying he hadn't had spells or flare-ups, and that's how I guess I utilize a system when I say persistent pain. (Dr. Boulden deposition, page 38, lines 5 through 19) Although magnetic resonance imaging has shown a bulging of the disc immediately above the surgically excised disc, it is unclear whether that bulging preexisted the subject work injuries and subsequent fusion surgery since MRI studies were not available at the time. Fusion surgery does tend to put additional stress on the next higher disc, but at least at this point, it cannot be said that claimant has sustained additional impairment or loss of earning capacity resulting from any other level of the spine. Dr. Boulden described this bulging disc as "early degenerative," meaning not advanced degeneration, and indicated that such disc bulges are nothing out of the ordinary for anybody who works hard with his or her back. He also noted that the bulge showed no signs of nerve entrapment or pressure. Claimant was seen for evaluation by Martin Rosenfeld, D.O. Dr. Rosenfeld testified by deposition on May 1, 1990. He believed that claimant had sustained a 20 percent impairment to the body as a whole by reason of the subject work injuries, but since he had not seen claimant before the arbitration hearing, was unable to render an opinion as to whether claimant's condition had deteriorated. However, he noted that he would normally anticipate deterioration following a fusion in the next higher level because stress is transferred upward. Dr. Rosenfeld did not suggest specific medical restrictions. In response to a direct question, he indicated that he held no opinion as to whether claimant had undergone any change in medical condition because he had been seen on only one occasion. Claimant credibly testified to increased pain since the Page 5 arbitration hearing. Whereas back pain was intermittent in 1986, he now suffers either from pain or numbness almost constantly, especially in the left leg, and feels that his back is becoming progressively weaker. He finds his ability to lift, twist or bend to be progressively less. conclusions of law Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Claimant has undergone additional surgery since the arbitration decision to remove metal rods from his fused vertebrae at L5-S1. The surgery did not result in increased impairment or medical restrictions. He has undergone intermittent bouts of back pain, typically diagnosed as due to strain or sprain. He does suffer additional pain in the back and left leg, but as of the present time this has not interfered with his ability to continue performing his job up to 60 hours per week. In essence, industrial disability is primarily a reduction in earning capacity. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Claimant's actual earnings are now greater than they were at the time of the 1986 arbitration hearing. His earning capacity has not changed as he remains in the same job (as before, subject to the accommodations made by Hyman Freightways) working the same hours. Claimant intends to continue in this work. There has been no change in impairment and he has no additional medical restrictions. It does not appear Page 6 that claimant is currently foreclosed from any form of remunerative endeavor which he could perform as of April 17, 1986. There has been a change in claimant's condition in that he now suffers increased pain to the back and left leg. Pain and suffering is, of course, an appropriate element of damages in personal injury litigation. However, pain and suffering does not operate to increase industrial disability unless there is some impact on earning capacity. Considering all of the evidence then, it is determined that claimant has failed to establish a change in his condition since the arbitration hearing of April 17, 1986, indicating that he now has increased industrial disability causally related to either subject work injury. order IT IS THEREFORE ORDERED: Claimant shall take nothing from these proceedings. Costs are assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. W. Michael Murray Attorney at Law 2323 Grand Avenue Des Moines, Iowa 50312 Mr. Cecil L. Goettsch Mr. D. Brian Scieszinski Attorneys at Law 1100 Des Moines Building Des Moines, Iowa 50309 1803 Filed January 7, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : RONALD R. BENTON, : : Claimant, : : File Nos. 721933 vs. : 754493 : HYMAN FREIGHTWAYS, : 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 : EXCALIBUR INSURANCE COMPANY : by IOWA INSURANCE GUARANTY : ASSOCIATION, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803 In review-reopening, claimant failed to show change in condition where there was no change in impairment, medical restrictions, or his long-term employment status. Claimant now suffers more back and radicular pain, but while this may be a proper element of damages in personal injury litigation, it is not compensable under Chapter 85 unless there is an impact on earning capacity. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROLAND DONOHO, Claimant, File No. 722150 vs. A R B I T R A T I O N T & T SERVICES, D E C I S I O N Employer F I L E D and FEB 28 1989 AETNA LIFE AND CASUALTY CO. INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Roland R. Donoho, claimant, against T & T Services, employer, and Aetna Life and Casualty Company, insurance carrier, defendants, for benefits as the result of an injury that occurred on December 14, 1982. A hearing was held in Council Bluffs, Iowa, on June 27, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Roland R. Donoho, claimant, Lucinda Donoho, claimant's wife, joint exhibits 1 through 15, and defendants' exhibits 16, 17 and 18. Both attorneys submitted excellent briefs. The deputy ordered a transcript of the proceedings and directed that the initial cost of the transcript would be paid by defendants and that the ultimate cost of the transcript would be paid for by the nonprevailing party [Iowa Code section 86.19(1)]. PRELIMINARY MATTERS Claimant moved to amend the original notice and petition to allege an arbitration proceeding rather than a review-reopening proceeding and to amend the injury date from December 19, 1982, to December 14, 1982. Defendants did not object to these motions and they were granted. The parties agreed that even though the hearing assignment order shows that rate, medical benefits and whether claimant is an odd-lot employee are issues to be determined by this hearing, that the parties had reached agreement on these issues and that they were to be deleted as hearing issues in this case (Transcript page 6). STIPULATIONS The parties stipulated to the following matters: That.an.employer-employee relationship existed between claimant and employer at the time of the injury. That claimant did sustain an injury on December 14, 1982, that arose out of and in the course of employment with employer. That the injury was the cause of both temporary and permanent disability. That claimant is entitled to 30 weeks of permanent partial disability benefits based on a 20 percent permanent impairment of the foot. That the rate of compensation, in the event of an award, is $115.06 per week. That claimant's entitlement to medical benefits is no longer in dispute and that all requested medical benefits have been or will be paid. That defendants make no claim for credit for nonoccupational group health plan benefits paid prior to hearing. That defendants are entitled to a credit for 89 and 1/7 weeks of workers' compensation benefits at the rate of $115.06 per week which were paid prior to hearing. That there.are no bifurcated claims. That the issue of whether claimant is an odd-lot employee was withdrawn at the time of the hearing. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant is entitled to healing period benefits, and if so, the amount of benefits to which he is entitled (Tr. p. 6). What is the proper commencement date for permanent partial disability benefits (Tr. p. 6). EXPLANATION OF ISSUES Defendants paid claimant temporary disability benefits from December 15, 1982 until August 29, 1984. Claimant asserts that he is entitled to additional healing period benefits from August 29, 1984 to July 1, 1986 (Tr. p. 7). Defendants contend that the amount of healing period benefits paid prior to August 29, .1984, were an overpayment.of benefits and that they are entitled to a credit against the permanent partial disability benefits that they have agreed to pay (Tr. p. 7). SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant was 31 years old at the time of the injury on December 14, 1982. He fractured his left heel bone when he jumped approximately 20 to 21 feet onto hard packed frozen ground when the ladder on which he was standing began to slide (Tr. pp. 20 & 21). In the medical evidence, the heel bone is sometimes called the calcaneous and other times it is called the os calcis. Claimant was taken to Jennie Edmundson Hospital (Tr. p. 22). He was examined by the emergency room doctor, E. Mathiasen, M.D. He was subsequently treated by R. Michael Gross, M.D., Bernard Kratochvil, M.D., and Robert J. Klein, M.D., all of the same professional corporation. Claimant was diagnosed as having a calcaneal fracture extending into the posterior facet of the subtalar region. He was hospitalized for six days, from December 14, 1982 to December 20, 1982. He was treated with medication for pain and physical therapy. The prescribed method of treatment was early motion without weight bearing and without cast immobilization. Claimant was unable to work after the injury on December 14, 1982 (Exhibits 1 & 2) Dr. Kratochvil continued to be claimant's treating physician in 1983. He reported considerable pain on May 3, 1983 (Ex. 3A). He decided against a subastragalar fusion on July 5, 1983 (Ex. 4). On August 23, 1983, he reported that osteoporosis had subsided, but claimant had not reached maximum medical improvement. He felt that some permanent disability would be associated with this injury (Ex. 5). On November 3, 1983, Dr. Kratochvil reported continued soreness of the heel and a clicking sensation in the subastragalar joint. Claimant was not able to work. Surgery was reconsidered (Ex. 6). On November 10, 1983, Dr. Kratochvil said surgery was not contemplated. Claimant was not able to return to the heavy work that he was doing at the time of the accident (Ex. 7). Claimant said that they x-rayed his whole body because he fell so far. He did not wear a cast or braces, but he did use crutches. He said they told him that he had broke his heel bone, which is like an eggshell, and it was the hardest bone in the body to heal (Tr. p. 25). Claimant said he used crutches until midyear 1983. During this same period, he attended Iowa Western Community College for five quarters until midyear 1983. He studied English, mathematics, psychology and business courses (Tr. pp. 26 & 27). Claimant testified that he became .dissatisfied with the progress of his recovery in November and December of 1983. He continued to have soreness and clicking in his left heel. The insurance carrier then transferred his care to Oscar M. Jardon, M.D., an associate professor of orthopedic surgery at the University of Nebraska Medical School in Omaha, Nebraska. He began seeing Dr. Jardon on January 5, 1984 (Tr. pp. 29 & 30; Ex. 8; Ex. 15, p. 4). Dr. Jardon began with conservative treatments of a medial heel wedge and nonsteroidal anti-inflammatory medications. A release of the peroneus longus tendon was a long range consideration (Ex. 8). Dr. Jardon's diagnosis was tendonitis of the peroneus longus tendon with slight impingement in gait on this tendon (Ex. 9; Ex. 15, p. 5). Dr. Jardon gave a deposition on August 24, 1987. He stated he was licensed in 1957 and was board certified in 1972 (Ex. 15, p. 3). He curriculum vitae is impressive (Ex. 15; deposition ex. 2). In his deposition, Dr. Jardon testified that fractures of the heel bone tend to be disabling for long periods of time. "It's probably the one fracture that's longest in disability for a patient that there is." (Ex. 15, p. 5). Claimant was admitted for peroneus release on May 29, 1984 (Ex. 15, p. 6; Ex. 12; Tr. p. 33). The surgery showed no evidence of peroneal tendonitis, but it did disclose scarring of the talofibular ligament that was impinging on the tendon and a bone spur, which was not apparent on x-ray, was resected. Claimant was cast and used crutches after the surgery. Claimant then continued to putz along with recovery for a period of time until July of 1986 when he showed marked improvement with anti-inflammatories and injections. He still had a small amount of pain in the fibula, but all-in-all his rehabilitation program showed steady progress (Ex. 15, pp. 7 & 8). Dr. Jardon said that his last note from the physical therapist on July 1, 1986, said that the patient was better and not interested in further rehabilitation. It was felt his loss of flexibility and intermittent pain represented a 20 percent loss of permanent partial disability to the lower extremity. He also had trouble with his hip from his limp caused by the foot which was diagnosed as acute trochanteric bursitis. Claimant was dismissed from the clinic on July 15, 1986, but could return as he felt necessary (Ex. 15, p. 8). Earlier in claimant's treatment on August 2, 1984, and August 23, 1984, Dr. Jardon anticipated releasing claimant from active medical treatment (Ex. 10 & 11). However, on December 13, 1985, Dr. Jardon said claimant continued to have sharp pain in October of 1984 and he attempted to reduce the pain using ultrasound and phonophoresis of hydrocortisone. On October 25, 1984, Dr. Jardon noted slight improvement in the pain, ,but the ankle still.had a lot of cracking and popping. He said he concluded on September 12, 1985, that claimant could do some useful work and awarded a rating of 20 percent permanent partial disability of the foot (Ex. 13). Dr. Jardon testified that claimant's left foot problems were caused by the fall on December 14, 1982 (Ex. 15, p. 14). The doctor explained why this injury caused claimant so much trouble (Ex. 15, p. 15). Dr. Jardon repeated; "As I mentioned early on in this deposition, fractures of the heel bone are notorious for being disabling during their healing phase longer than about any other kind of a fracture you get in the lower extremity, go on for a year or two or three." (Ex. 15, p. 16). Dr. Jardon added that there was slight improvement after the tendon release and that they kept at it until he was released in July of 1986 (Ex. 15, p. 13). Dr. Jardon agreed that it was true that claimant missed appointments July 17, 1984 and July 19, 1984 (Ex. 15, Dep. Ex. 3, pp. 19 & 20), but a card was sent to claimant to reschedule the appointments (Ex. 15, p. 19). He admitted that he had considered releasing claimant from active medical treatment at his next appointment as he stated in his letter on August 2, 1984 (Ex. 10), but it didn't work out this way (Ex. 15, p. 20). Dr. Jardon said, "It didn't happen quite that way." (Ex, 15, p. 22). Dr. Jardon said that claimant may have tried to work (Ex. 15, p. 22) but claimant was not able to work on October 4, 1984 (Ex. 15, p. 23). He wanted claimant to lay off to gain control of it and he wanted to start phonophoresis, range of motion exercises, stretching and ice bags with a goal toward gaining some better motion and reduction in pain. He had shown improvement. The ligaments were intact. The ankle was stable (Ex. 15, p. 24). Dr. Jardon did not see claimant from October of 1984 until September of 1985. Claimant missed an appointment in December of 1984 and on August 13, 1985, but he showed up on September 12, 1985. Claimant was improving but still had some pain. Dr. Jardon explained that it was alright that claimant did not come in to see him from October of 1984 until September of 1985. He had instructed claimant to do what he felt like doing. That included work or playing around or going fishing or dancing with his girlfriend, but if he had trouble he was admonished to come in and see Dr. Jardon. Claimant had intermittent trouble and when he became acute enough, he came to see him (Ex. 15, pp. 25-27). Dr. Jardon said that claimant's activities in this period were up to claimant. This included work as tolerated, if he felt like it. Dr. Jardon told him to do what he wanted to do until he got hurting and then to come in and see him (Ex. 15, p. 28). Dr. Jardon testified it was not contrary to his advice for claimant to work insofar as he was capable (Ex. 15, p. 29). Dr. Jardon said that by the first of July 1986, claimant was doing a lot better. On July 17, 1986, claimant was much improved with his injections and physical therapy. It was at this point that Dr. Jardon released claimant from treatment to come in whenever he needed to. Dr. Jardon said this is not an unusual story for this injury. It is the longest partial permanent recovery period following a fracture of this kind, of about any break in the body, because it is down in a tightly fitted joint with a lot of tendons and soft tissue around it. It is not unusual to be monkeying with these things for two and one-half to three years in a fracture of the heel bone (Ex. 15, p. 27) . Dr. Jardon added that this is the best that he can do with these kinds of cases. The worst thing to do is to take them clear off work indefinitely. You've got to get them to keep trying and they will get back to the work force eventually (Ex. 15, pp. 29-31). Claimant testified at the hearing that his heel still clicks. He demonstrated it in the court room at the hearing. He has pain in the morning and on cloudy days. It stiffens up after long periods of standing and walking. Sitting is alright if he can move around. Weight bearing still hurts the surgical area (Tr. pp. 32 & 33). Claimant granted that he missed some appointments with Dr. Jardon, but he always rescheduled them again (Tr. 34 & 35). Exhibits 16 and 17 are letters from the insurance carrier to claimant urging him to keep certain appointments (Tr. pp. 83-87). Claimant explained that sometimes he had no car, or only one car. Sometimes the car was broken down. Sometimes he would have trouble at home. Sometimes Dr. Jardon was running behind schedule and claimant did not have the money for the parking meter or to pay the fine for overtime parking. Claimant asserted that he always rescheduled the appointments. He testified that Dr. Jardon and the physical therapist never complained about.his missing any of these appointments (Tr. pp. 27 & 34-36). Claimant testified that he attended school until May of 1984, had surgery in June of 1984 and recuperated until August of 1984. He indicated that he did not work at all until August of 1984 (Tr. p. 37). Claimant was impeached on this testimony (Tr. p. 89). Defendants introduced checks which claimant had received from Jack T. Stageman and Teresa A. Stageman as follows: July 22, 1983 $ 100.00 July 27, 1983 93.00 July 30, 1983 107.50 August 22, 1983 137.50 August 27, 1983 240.00 August 29, 1983 67.50 September 15, 1983 107.50 TOTAL $ 853.00 (Ex. 18) Claimant contended that he bought and resold these air conditioners to the Stagemans. The memo portion of the checks showed that they were for labor, as well as air conditioners (Ex. 18). Claimant denied that there was any labor involved (Tr. pp. 91-93). Claimant testified that he bought air conditioners and Stagemans have him a check for what he had in them. He was just swapping money. He received a reimbursement for air conditioning parts. He was just helping friends that he had met at an A.A. meeting (Tr. pp. 96-99). When benefits stopped on August 29, 1984, claimant said that he started picking up used air conditioners under the name of Southside Associates. He scavenged air conditioner parts like motors, condenser coils and switches and sold them to air conditioning outfits but he did not make any money at it (Tr. pp. 37, 38, 71, 72 and 74). He testified that he quit scavenging air conditioner parts because he could not make any money at it and because Dr. Jardon advised against it (Tr. p. 40). Claimant testified that his girlfriend supported him with her welfare payments and food stamps. He sold his blood once a week to get money for gas to go make about 35 job applications (Tr. p. 39). He worked for a bedding company, Omaha Bedding Company, for one day running a staple gun, but he could not stand on the concrete floor all day (Tr. pp. 41 & 72). He then worked for Benchmark Homes Remodeling for less than one or two weeks doing fix-up work (Tr. p. 73). He then took a part-time job three or four nights a week as a bartender at Offutt Air Force Base beginning on November 1, 1984, earning $136 per week gross. Claimant granted that this was not a wise choice because he had a drinking problem and was going to A.A. (Tr. pp. 41, 42 & 77). Also, the standing and walking behind the bar were not possible for him to do (Tr. p. 44). Claimant said the insurance carrier never explained to him why benefits had ceased on August 29, 1984. He called once. The claim representative was on vacation and he never called back again. Claimant said he was never told to report that he was looking for work, was working or that he made any money working (Tr. pp. 43 & 44). No one told him benefit checks would be stopped if he worked. He did not know you could not have a part-time job and draw benefits (Tr. p. 70). Claimant performed the part-time bartender job from November 1, 1984, to January 15, 1985. On January 15, 1985, claimant was hospitalized at the Veterans Administration Hospital for alcohol abuse, multiple substance abuse, personality disorder and gastritis. He was released to seek employment on March 25, 1985 (Ex. 14; Tr. pp. 44, 77 & 78). Claimant acknowledged that he served in Viet Nam, was shot twice, exposed to Agent Orange, became alcohol and drug addicted, was caught with heroin, served 11 months in Fort Leavenworth and received a bad conduct discharge (Tr. p. 46). Claimant said the stress of his injury and his inability to find employment and a flashback to Viet Nam caused his VA hospitalization. The main concern about his hospitalization was his desire to take his own life (Tr. pp. 45-49 & 52). The Veterans Administration Hospital did not treat his foot (Ex. 14; Tr. pp. 48 & 50). Claimant testified that after his discharge from the VA hospital that he worked, very, very part-time for his brother-in-law at Otto Kessler Investments performing light maintenance, fixing doorknobs, doorjambs, hanging cabinets and doing small plumbing jobs for approximately one and one-half to two months. This was during the period from approximately March 25, 1985, to May of 1985. Claimant testified that this job ended because there was not enough work to keep him busy and because there wasn't enough money in it (Tr. pp. 53 & 80). Claimant said that he earned approximately $300 to $400 per month on this job (Tr. p. 81). Claimant testified that he then started to work for Peterson Brothers Realty doing painting, electrical, plumbing and carpentry work from May of 1985 until March of 1986. Claimant admitted that he lied and concealed the fact that he had a prior employment injury in order to get this job. Claimant said that he patched walls, changed light box covers, fixed doorjambs, changed faucets and did general.light duty maintenance. He also scraped snow in the winter. He thought he earned $2,000 in the first three months in 1986. He said that he did not see a doctor during this period of time (Tr. pp. 56-59, 81 & 82). Claimant testified that from March of 1986 to midyear 1986, he was self-employed fixing up apartment houses and painting houses, but he paid out more than he took in because he had to hire other people to do the work (Tr. pp. 59 & 60). At about this time, claimant testified that he returned to see Dr. Jardon because of pain in his left knee and left hip and back. Dr. Jardon prescribed more physical therapy (Tr. p. 62). Dr. Jardon told him that he was going to have trouble sometimes. There would be days when he could not work, but there is nothing more that he could do for him. He was told that he can take aspirin and live with it. This was the last time he saw Dr. Jardon (Tr. pp. 63, 64, 67 & 68). Claimant testified that he could not support his family on any of these jobs. He went $10,000 in debt while doing them. None of the jobs provided medical insurance (Tr. pp. 64 & 65). Claimant did not know if he earned enough to file income tax returns in 1984 and 1985. He did file an income tax return in 1986 (Tr. p. 82). Claimant confirmed that Dr. Jardon told him to do what he felt like doing after September of 1984. This included working. If he had trouble he was to come back. The next time he found it necessary to see Dr. Jardon was in August of 1985 (Tr. pp. 75 & 76). At another point in his testimony, claimant reiterated that after the operation, Dr. Jardon said that he was going to have to try to do something. Work when you feel like it. Try to do something. Stay off the strenuous stuff, find something you can handle (Tr. p. 101). Lucinda Donoho, claimant's wife, testified that she married claimant on November 9, 1983, which was after the injury occurred on December 14, 1982. She corroborated that claimant bought and sold air conditioners, but he wasn't working for anyone. She said they were both going to school at that time. He did not start to look for work until 1984. He constantly tried to figure out something that he could do to remedy his unemployment situation (Tr. pp. 107-110). She said that the VA hospital incident was caused by his lack of employment, stable employment, lack of self-esteem for not finding employment or having enough income and they were losing the house that they were living in at that time (Tr. p. 111). At the time of the hearing, claimant testified that he was employed as a project estimator. He had been doing this for seven months, since October of 1987. His duties involved making bids on new commercial and residential housing for his employer, Carlson Dry Wall. He submitted these bids to the general contractor, selected and ordered materials and scheduled work on a bar graph form (Tr. pp. 18 & 19). Claimant testified that his prior work experience has been in construction work (Tr. p. 102). APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of December 14, 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). In this case, the question of causal connection between the injury and the amount of temporary disability is essentially within the domain of one medical expert, Dr. Jardon. His testimony will be considered with all of the other evidence. It will be accepted and applied in its simplest and plainest meaning. Dr. Jardon was claimant's primary treating physician. He is the only physician to give a statement or render an opinion on the single issue in this case. Dr. Jardon was an authorized physician and was selected by defendants. His testimony is not contradicted by any other doctor. Dr. Jardon was licensed in 1957 and became board certified in 1972. He is both a practicing physician and also an associate professor of orthopedic surgery. Claimant did sustain the burden of proof by a preponderance of the evidence that he is entitled to temporary disability benefits during a period of recovery beginning on December 15, 1982, the day after his injury, until the last time he saw Dr. Jardon on or about July 1, 1986. Since the parties have stipulated that claimant is entitled to permanent partial disability of 20 percent of the foot, then the type of temporary disability benefit is to be characterized as healing period disability. The statute says it begins on the date of the injury and goes on until, (l) the employee has returned to work, or (2) it is medically indicated that significant improvement from the injury is not anticipated, or (3) until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury, which ever occurs first [Iowa Code section 85.34(1)]. Dr. Jardon, the singular and eminently qualified medical authority in this case, stated that fractures of the heal bone tend to be disabling for the longest period of time. It is the one fracture that has the longest disability for a claimant (Ex. 15, p. 5). Claimant continued to show recovery in his opinion, until July of 1986. He thought claimant's rehabilitation program showed steady progress until this time (Ex. 15, pp. 7 & 8). His last note on July 15, 1986, shows that the physical therapist said that the patient was doing much better and was not interested in further rehabilitation (Ex. 15, p. 8). He did not dismiss claimant until July 15, 1986 (Ex. 15, p. 8). Even though the insurance carrier terminated benefits on August 29, 1984, Dr. Jardon was still actively treating claimant with ultrasound and phonophoresis of hydrocortisone in October of 1984. On October 25, 1984, Dr. Jardon noted slight improvement in the pain since the release of the ligaments, but the ankle remained sore with a lot of cracking and popping and Dr. Jardon was continuing to treat this condition (Ex. 13). Defendants were not justified in terminating claimant's temporary disability benefits on August 29, 1984. The alleged basis for the termination of benefits was stated to be, (l) failed appointments and (2) surreptitious employment (Tr. pp. 11 & 123; Def. brief p. 2). It should be noted that the calendar in defendants' brief, appendix A, was very helpful in seeing the dates applicable to this case in graphic form. A third defense is that defendants further contend that claimant is only entitled to temporary partial disability benefits in July, August and September of 1983, when claimant received $853 in checks from Jack and Teresa Stageman (Ex. 18). Citing Iowa Code section 85.33(4) defendants prepared a calculation of temporary partial disability benefits to show that claimant was only entitled to a benefit payment of $25.22 per week instead of the $115.06 per week which claimant had received. This resulted in an overpayment to claimant in the amount of $89.84 per week for six weeks. Defendants asserted that they were entitled a total credit in the amount of $539.03 (Def. Brief pp 2-4). Defendants assertion that claimant was only entitled to temporary partial disability benefits is without merit. Both paragraph 3 and 4 of Iowa Code section 85.33 state that they apply to the situation where the employer, for whom the employee was working at the time of injury, provides suitable work for the employee. Claimant did not return to work for this employer. Instead, claimant worked for other employers and for himself as a self-employed person. Iowa Code section 85.33(3) provides as follows: If an employee is temporarily, partially disabled and the employer for whom the employee was working at the time of injury offers to the employee suitable work consistent with the employee's disability the employee shall accept the suitable work, and be compensated with temporary partial benefits. Iowa Code section 85.33(4) provides as follows: If an employee is entitled to temporary partial benefits under subsection 3 of this section, the employer for whom the employee was working at the time of injury shall pay to the employee weekly compensation benefits, as provided in section 85.32, for and during the period of temporary partial disability. Since claimant did not work for the employer for whom he was working at the time of the injury, then Iowa Code section 85.33 which provides for temporary partial disability benefits has no application to this case. Two prominent authors in the field of workers' compensation have commented on this point. They state that it should be noted that temporary partial disability is appropriate only in those circumstances in which the employee goes back to work the employer for whom employed when the injury occurred. Lawyer and Higgs, Iowa Workers' Compensation--Law & Practice , 13-2, pp. 106 & 107. In addition, it should be noted that claimant denied that he was employed by the Stagemans. Claimant testified that he sold the air conditioner parts for the same amount that he paid for them (Tr. pp. 91-93, 96, 97 & 103). Therefore, defendants assertion that claimant was employed by Stagemans is contradicted, controverted and rebutted. Neither party called the Stagemans to testify to resolve this conflict of evidence. In conclusion, defendants claim for a credit based upon the theory of temporary partial disability is without merit and cannot be granted. Defendants contend that claimant's workers' compensation benefits should be suspended due to missed medical appointments on April 3, 1984, July 17, 1984, July 19, 1984, and August 13, 1985 (Tr. p. 11-16), citing Iowa Code section 85.39. The fallacy of this proposition is that none of these appointments were scheduled as Iowa Code section 85.39 examinations. By contrast, they were simply routine periodic medical follow-up examinations. Claimant further testified that he rescheduled these examinations. Claimant testified that neither the doctor nor the physical therapist complained about the missed appointments. Dr. Jardon did not testify that any of these appointments were critical or that they prolonged claimant's medical treatment. On the contrary, Dr. Jardon indicated that claimant needed an extensive long period of time without appointments to see what he was able to to with his left ankle which included work and nonwork activities. Industrial Commissioner David E. Linquist recently held that an employee's failure to attend some of his medical appointments, followed by attendance at rescheduled appointments, did not constitute a refusal of treatment and warrant a suspension of benefits under Iowa Code section 85.39. Assmann v. Blue Star Foods, file number 866389 (declaratory ruling dated May 18, 1988). Even though Dr. Jardon said that he had hoped to discharge claimant on July 19, 1984, (Ex. 11) Dr. Jardon ruled this out when he actually saw claimant in October of 1984 (Ex. 13). When quizzed on this point in his deposition, Dr. Jardon said, "It didn't happen quite that way.", due to the difficulties that claimant was exhibiting in October of 1984 (Ex. 15, pp. 22 & 23). Therefore, defendants contention that claimant's benefits should be suspended under Iowa Code section 85.39 because of his failure to attend routine scheduled medical appointments, which were rescheduled, is not correct. So much of Iowa Code section 85.34(1) which states that claimant is to received benefits until the employee has returned to work is construed to mean the work that claimant was performing at the time of the injury or some other substantial gainful full-time employment. Dr. Jardon verified that claimant was not able to return to the kind of work that he was doing at the time of the injury. Earlier, Dr. Kratochvil said that claimant was not able to return to the heavy work that he did previously, at least at that time in November of 1983 (Ex. 7). So much of Iowa Code section 85.34(1) that states that claimant is to receive benefits until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury is a factual determination in every case. Substantially similar employment, in this case, should at least be full-time gainful employment from which the employee can earn a living. In this case, claimant never performed full-time gainful employment, but rather performed part-time jobs and odd jobs of inherently short term duration. Scavenging air conditioner parts for the Stagemans for three months, July, August and September of 1983, for $853, whether done as a favor, or for profit, is not full-time gainful employment from which the employee could earn a living. Scavenging air conditioner parts for himself as a self-employed individual, in August of 1984, failed to sustain claimant and cannot be construed as full-time gainful employment. Working for the bedding company for one or two days was not full-time gainful employment. Claimant was not able to perform this job because he could not stand on cement every day, all day long, because of the residual problems with his left ankle. Tending bar for three nights a week at Offutt Air Force Base for a confirmed alcoholic and drug addict cannot be determined to be realistic full-time gainful employment. First of all, it was not full time. Second, it was established that claimant was not able to perform this job for any sustained period of time. Light apartment maintenance work was another on call type of odd job work which is not full-time gainful employment, when he did it as a self-employed person and also when he did it as an employee of Peterson Brothers Realty. As a pure legal matter, claimant cannot be held to account for the fact that he did not report these employments to employer. There is nothing in Iowa Code sections 85.33 or 85.34 that requires an employee receiving temporary total disability benefits or healing period benefits to, on his own initiative, report part-time income, odd job income or any other income. Defendants did not prove that they communicated to claimant that he was under any duty to report any work or any income to them. Furthermore, the workers' compensation law does not provide any statutory credit for earnings which an employee might make while receiving either temporary total disability benefits or healing period benefits. Therefore, claimant was under no duty to voluntarily and spontaneously report these part-time and odd job employments or the income from them. Likewise, claimant is not liable for any offset or credit for what he earned. If defendants wanted to terminate healing period benefits, it was entirely possible for them to obtain a written statement from the physician they authorized that either, (l) claimant could return to work, (2) claimant had reached maximum medical improvement, or (3) claimant could perform work in substantially similar employment. Defendants terminated claimants benefits without this evidence. In addition, or in the alternative, defendants could have requested still another examination and evaluation by a doctor or their own choosing under either Iowa Code section 85.27 or Iowa Code section 85.39. Defendants did not choose this course of action even though it was entirely possible for them to do so before terminating claimant's benefits. It is also noted that defendants did not offer any vocational rehabilitation assistance to claimant after the surgery, but rather terminated his benefits because he displayed the motivation to do some odd job work scavenging air conditioner parts. Effective vocational rehabilitation might have returned claimant to substantial gainful full-time employment much sooner in this case because claimant demonstrated that he was willing to work. In his deposition he testified that he continued to try to improve claimant's condition after September of 1984 and that it did in fact improve after that date. In this case, Dr. Jardon gave claimant a rating on September 12, 1985 (Ex. 13). Nevertheless, in his deposition Dr. Jardon testified that he found that claimant had not obtained maximum medical improvement at that time. Furthermore, there is evidence that Dr. Jardon was not completely sure of the amount of permanent partial disability in September of 1985 because he said it was "about" 20 percent. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 1981); Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124 (Iowa appeals 1984). The assessment of an impairment rating is considered to be an indication of maximum medical improvement; however, in this case, the doctor specifically stated that he did expect claimant to improve after September of 1984 and that claimant did, in fact, improve after September of 1984. In conclusion then, the tests for determination of healing period benefits in this case is until it is medically indicated that significant improvement from the injury is not anticipated. Dr. Jardon found improvement up until the time he discharged claimant on July 17, 1986. Therefore, claimant is entitled to healing period benefits from December 15, 1982, until July 1, 1986. July 1, 1986, is the date agreed upon by the parties as the appropriate terminal date for healing period benefits. Therefore, claimant's permanent partial disability benefits are to commence on July 1, 1986. Claimant is entitled to 30 weeks of permanent partial disability benefits based upon a 20 percent rating of the left foot as stipulated to by the parties. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant was unable to return to the job that he was performing at the time of the injury. That claimant did not and could not perform full-time gainful employment substantially similar to the employment that he was performing at the time of the injury. That based upon the testimony of Dr. Jardon, the treating physician, and the only physician to testify on the subject of maximum medical improvement, claimant continued to improve until July 17, 1986, at the time he was discharged by Dr. Jardon. That all of the employments that claimant performed in the evidence in this case were part-time or odd job employments for short periods of time and did not demonstrate that his recuperation was completed. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed, the following conclusions of law are made. That the injury of December 14, 1982, was the cause of temporary disability from December 15, 1982, until July 1, 1986. That claimant is entitled to healing period benefits for the period from December 15, 1982, to July 1, 1986. That claimant is entitled to 30 weeks of permanent partial disability benefits based upon a 20 percent functional impairment to the left foot as stipulated to by the parties. That claimant's part-time and odd job earnings were not paid by the employer for whom the employee was working at the time of the injury and defendants are not entitled to a credit or offset based upon these earnings. That claimant's failure to attend regularly scheduled follow-up routine appointments is not the same as failure to attend a scheduled Iowa Code section 85.39 examination. That claimant's failure to attend some of his routine medical appointments, which were rescheduled and attended, did not constitute a refusal of medical treatment under Iowa Code section 85.39. That claimant was not under a statutory duty to voluntarily and spontaneously report odd job and part-time earnings which he received at the same time he was receiving healing period benefits. ORDER THEREFORE, IT IS ORDERED: - That defendants pay to claimant one hundred eighty-four point four two nine (184.429) weeks of healing period benefits for the period from December 15, 1982, to July 1, 1986, at the rate of one hundred fifteen and 06/100 dollars ($115.06) per week in the total amount of twenty-one thousand two hundred twenty and 40/100 dollars ($21,220.40). That defendants pay to claimant thirty (30) weeks of permanent partial disability benefits at the rate of one hundred fifteen and 06/100 dollars ($115.06) per week as stipulated to by the parties in the total amount of three thousand four hundred fifty-one and 80/100 dollars ($3,451.80) commencing on July 1, 1986. That defendants are entitled to a credit for eighty-nine point one four (89.14) weeks of workers' compensation benefits paid prior to hearing at the rate of one hundred fifteen and 06/100 dollars ($115.06) per week in the total amount of ten thousand two hundred fifty-six and 79/100 ($10,256.79). That these benefits are due to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 28th day of February, 1989. WALTER R. MCMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert V. Rodenburg Attorney at Law 100-101 Park Bldg. Council Bluffs, IA 51501 Mr. Theodore Stouffer Mr. David Blagg Attorneys at Law 8805 Indian Hills Dr. STE 300 Omaha, NE 68114 1401, 1402.40, 1700, 1704, 1801.10, 1802 Filed February 28, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROLAND DONOHO, Claimant, File No. 722150 vs. A R B I T R A T I O N T & T SERVICES, D E C I S I O N Employer, and AETNA LIFE AND CASUALTY CO., Insurance Carrier, Defendants. 1401, 1402.40 Claimant proved he was entitled to the healing period benefits that he requested. The only doctor supported his contention. There was no other medical evidence to controvert it. The healing period for a fracture heal bone was from December 15, 1982 to July 1, 1986, according to the only medical evidence. It was a long period but the doctor said it was justified. 1700, 1704, 1801.10, 1802 Defendants could not claim that payment of earnings by employers, other than the employer for whom claimant was working at the time of the injury were temporary partial disability benefits. Likewise, defendants were not entitled to a credit or offset for earnings claimant received doing part-time and odd job work while he was receiving healing period benefits. Claimant had no statutory duty to voluntarily report these part-time employment and odd job employment earnings to employer on his own initiative when he was receiving healing period benefits. That claimant's failure to attend regularly scheduled follow-up routine appointments is not the same as failure to attend a scheduled Iowa Code section 85.39 examination. That claimant's failure to attend some of his routine medical appointments, which were rescheduled and attended, did not constitutes a refusal of medical treatment under Iowa Code section 85.39.