BEFORE THE IOWA INDUSTRIAL COMMISSIONER GILBERT JOE TRUMP, Claimant, vs File No. 722320 DICKEY TRANSPORT, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNITED STATES FIDELITY & GUARANTY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Gilbert Joe Trump, claimant, against Dickey Transport, employer, and United States Fidelity & Guaranty, insurance carrier, defendants, for benefits as a result of an injury that occurred on December 8, 1982. This corrected date of injury was stipulated to by the parties at the time of the hearing instead of December 7, 1982. A hearing was held in Des Moines, Iowa on July 20, 1987 and the case was fully submitted at the close of the hearing. The record consists of joint exhibits B through I, claimant's exhibit one, the testimony of Gilbert Joe Trump (claimant), and Jo Anne Trump (claimant's wife). Both attorneys submitted excellent briefs. 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 sustained an injury on December 8, 1982 that arose out of and in the course of employment with employer. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the rate of compensation, in the event of an award, is to be based upon a married person with five exemptions. That all requested medical benefits have been paid except some prescription drugs (Exhibit I) and some mileage expenses (Ex. 1) which were first presented for payment at the time of the hearing. That defendants claim no credit pursuant to Iowa Code TRUMP V. DICKEY TRANSPORT Page 2 section 85.38(2) for previous benefits paid under an employee nonoccupational group health plan. That defendants are entitled to a credit for workers' compensation benefits paid prior to hearing for 145 weeks at the rate of $278.62 per week. That defendants stated on the record at the hearing that the issue of jurisdiction under Iowa Code section 85.71, appearing on the hearing assignment order, was withdrawn by the parties and was no longer an issue in the case. That the claim for penalty benefits under Iowa Code section 86.13 remains asserted. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether the injury of December 8, 1982 was a cause of temporary disability during a period of recovery. Whether the injury of December 8, 1982 was the cause of permanent disability. Whether claimant is entitled to temporary disability benefits during a period of recovery, and if so, the nature and extent of benefit entitlement. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefit entitlement. What is the proper weekly rate of compensation in the event of an award. Whether claimant is entitled to payment for prescription drugs as shown on Exhibit I. Whether claimant is entitled to payment for mileage expenses as shown on Exhibit 1 for medical treatment and for vocational rehabilitation training. SECTION 86.13 PENALTY BENEFITS Claimant's petition claims penalty benefits under Iowa Code section 86.13. This issue was not shown as an issue on the TRUMP V. DICKEY TRANSPORT Page 3 hearing assignment order. It will therefore not be addressed in this decision. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant was 33 years old at the time of the injury, married and he is the father of three dependant children. Claimant is a high school graduate and he had completed one year of college prior to the injury. Since the injury, he has completed another year of college and has one year to go in order to obtain an accounting degree. Claimant is presently enrolled in and is attending college. Past employments include over-the-road truck driving, service station attendant and construction work. Claimant has also performed shop work servicing trucks and he has operated his own over-the-road trucking business as a self-employed individual. Claimant has also been employed as a stock agent selling stocks, a crane operator and as a police officer. Details of his past employments appear at interrogatory number ten (Exhibit C, pages 14 & 15), his employment application with this employer (Ex. D, p. 3) and in a summary he gave to the vocational rehabilitation people (Ex. F, pp. 27, 29 & 30). Claimant started to work for this employer, this last time, in approximately October of 1981 (Ex. D). At 4 a.m. on December 8, 1982 while hauling a load of fruit baskets claimant hit a patch of black ice, lost control of the truck and turned over in the ditch. The tractor was a total loss. Black ice was described as ice that is the same color as the road. Therefore it is not detectable by looking at it. You don't see it until you are on it. Claimant testified that he did not receive any emergency medical treatment immediately after the accident. He first became stiff about 7 a.m. Claimant helped transfer his load to another truck and delivered it on December 8, 1982. He did report to his employer that he was hurt and he was told to see his family doctor. J. A. Kuehn, D.O., took x-rays, prescribed muscle relaxants and told claimant not to drive for two or three weeks. Claimant testified that he felt like he had a needle in his back and he had shooting pains down his legs. Claimant testified that he returned to work in March of 1983 on a trial basis. He said that he did load and unload trucks during this period of time when he could not find help. He stated that after his last trip, in May of 1983, he could hardly get out of the truck. He was not able to work again and Dr. Kuehn referred claimant to an orthopedic specialist, Glenn Browning, D.O., who took an EMG and myelogram and said there was damage to one or two discs. Claimant related that this doctor told him that his nerves were blocked off, put him to sleep and went in and dug them out with a needle. Claimant testified that this procedure relieved the pain. Claimant testified that manipulation also relieved his pain. Claimant testified that all of the drugs for which he is claiming payment, which totaled TRUMP V. DICKEY TRANSPORT Page 4 $253.37, were prescribed by either Dr. Kuehn or Dr. Browning for his back pain from this accident (Ex. I). This testimony was not controverted. On the contrary, defendants' counsel stated that these bills had never been presented for payment prior to the hearing. Exhibit one is an itemized list of mileage for which claimant testified that he drove to the doctors or to go to vocational rehabilitation at the request of the insurance carrier. Claimant testified that Dr. Browning said he could return to work on July 31, 1985 but that he could not drive a truck, lift over 30 pounds or sit for over one hour. Claimant testified that defendants did not rehire claimant or offer him a job after July 31, 1985. Claimant testified that he requested work from them within his restrictions. Claimant testified that he last saw Dr. Browning in July of 1985. He is not seeing Dr. Kuehn but is getting prescriptions from him. Claimant began vocational rehabilitation in March of 1984 with Jewish Vocational Services in Kansas City at the request of the insurance carrier. Claimant testified that the insurance carrier agreed to pay for his mileage and motel expenses. He said that he stayed with his aunt and there was no motel bill. The insurance carrier did not pay for his mileage. Claimant added that his workers' compensation checks were interrupted occasionally and stopped all together in June of 1985. Claimant testified that he has not presented any other workers' compensation claims. The vocational rehabilitation counselor recommended college in 1984. Claimant investigated college in 1984 and in 1985 but did not actually get started until the spring of 1986 according to his testimony. He explained the delay was due to the fact that he could not walk the steps or sit that long until he actually started. The vocational rehabilitation reports also indicate that claimant had financial problems producing the tuition of $267.00 per semester. Claimant is enrolled in a two year program of management and accounting. He stated that he is a C student and does fair. The grade reports for the fall of 1986 and the spring of 1987 show grades of B, C and D (Ex. F, p. 6). Claimant testified that he hopes to graduate in July or August of 1988. He hopes to be employed in accounting after he graduates. He testified that after the injury and up to the time of the hearing he has worked in filling stations, at a greenhouse and on farms for his parents and his brothers. Claimant did not know and could not estimate how much he would earn after he graduates. Eventually he hoped to get into business management. Claimant testified that with respect to his back he has good days and bad days. He cannot drive a truck because of the 30 pound weight restriction and the prohibition against sitting for more than one hour. He stated that his endurance is increasing in an eight hour day but he still gets sore, stiff and tired. Quick movements, bouncing and sitting a long time cause a sharp pain. Claimant testified that the state of Missouri has paid for part of his vocational rehabilitation because he is not able to perform his old job of truck driving due to this injury. Claimant saw Scott Neff, D.O., in December of 1985 at the TRUMP V. DICKEY TRANSPORT Page 5 request of defendants. He said that they visited five minutes and Dr. Neff had him bend over once. He granted that Dr. Neff did order a CT scan in April of 1986 which is something that Dr. Browning had not done. Claimant testified that in 1982, which was the last full year the he worked, he earned $20,000.00. He testified that he did not have taxable earnings in 1983, 1984 or 1985. In 1986, claimant reported earnings of $5,000.00 as a gas station attendant from August of 1986 to December 31, 1986. He stated that this also included his income for work in the greenhouse in 1986. Claimant testified that he was unemployed at the time of the hearing because the service station had closed. Claimant testified that he looked for jobs around home in Trenton, Missouri and had made one application at Bethany, Missouri but had not been successful in finding employment. Claimant said that he had not tried police work, because he believes it would be to strenuous for him. He said that he lives on a farm near his parents and brothers and sisters near Trenton, Missouri. Jo Anne Trump, claimant's wife of 17 years, testified that claimant is a hard worker and a good provider. She said that her husband is limited in his ability to do physically demanding work since the injury. His movements are limited. He cannot sit a long time. He cannot ride in a car for a long time. A review of the medical evidence shows that claimant saw Dr. Kuehn approximately eight times between December 15, 1982 and May 26, 1983. Dr. Kuehn described contusion, acute ligamentous strain and acute tenderness. He prescribed medication and performed manipulative back treatment. Dr. Kuehn referred claimant to Dr. Browning on June 20, 1983 (Ex. G, pp. 1-3). Dr. Browning made the following note at the time of claimant's first visit on June 20, 1983. Mr. Trump was seen today for evaluation of his back. He has had problems with it for a long time. He was in a truck wreck and has had further problems since then. He brings x-rays with him which reveal sacralization of L5 with large batwing deformity and fusion of the transverse process on one side causing excessive strain mechanism. He neurologically shows no deficits. He is somewhat restricted in motion. We will place him on non-steroidal antiinflammatories and also on Williams' flexion exercises and we will be rechecking him again in 2 weeks. (Ex. G, p. 9) An electromyograph and nerve conduction study on October 3, 1983 by Michael L. Kucera, D.O., failed to reveal any evidence of radiculophathy, plexopathy or entrapment neuropathy (Ex. G, p. 11) On January 4, 1984 claimant was admitted to the hospital for a myelogram. The result of the myelogram is not in evidence (Ex. G, pp. 17 & 18). On the following day, January 5, 1984, Dr. Browning administered manipulation under general anesthesia and TRUMP V. DICKEY TRANSPORT Page 6 injection of epideral morphine and steroids (Ex. G, pp. 18 & 19). It was reported that this relieved claimant's pain. When the course of conservative treatment in 1984 did not produce positive results, the manipulation under anesthesia was performed again on March 29, 1985 by Dr. Browning (Ex. G, pp. 20 & 21). Dr. Browning then prescribed a course of physical therapy in his office in April, May and June of 1985 (Ex. G, p. 16). On July 31, 1985 Dr. Browning said that claimant could return to light duty with a 35 pound weight restriction and stated that claimant had a 25 percent permanent partial impairment of his back (Ex. G, pp. 15 & 16). Claimant's vocational rehabilitation history begins in March of 1984 with Jewish Vocational Services (JVS) in Kansas City on March 29, 1984. Claimant was wearing a lumbosacral support at that time. They noted that Dr. Browning had recommended that claimant discontinue as a tractor truck driver because of the constant jarring and bumping (Ex. F, pp. 44 & 45). Dr. Browning's return to work evaluation which he completed on June 14, 1984 was very limiting. Dr. Browning said that claimant could not work eight hours a day (Ex. F, p. 40). On June 18, 1984 JVS recommended that claimant go to college at Trenton Junior College even though it would be a difficult adjustment for an adult and would require dedication and hard work (Ex. F, pp. 37-39). On August 18, 1984, Mike Horan, the vocational rehabilitation specialist, reported that Dr. Browning indicated that claimant had reached maximum medical improvement and had issued certain restrictions; however, Dr. Browning did not issue an impairment rating at that time. The specialist also indicated that claimant intended to enroll in Trenton Junior College (Ex. F, pp. 34 & 35). At the time of his next report, in January of 1985, the vocational rehabilitation specialist reported that Dr. Browning said that claimant was "making progress" and "gaining strength" and that the doctor still had not issued a disability rating (Ex. F, p. 33). On March 18, 1985 claimant and the specialist together saw Dr. Browning again and requested a release to return to work. Dr. Browning refused because he wanted to repeat the epideral injection and spinal manipulation again to increase claimant's functional level and to decrease his pain. After that, Dr. Browning wanted a six weeks physical therapy program through his own office and then he would provide a disability rating and a work release (Ex. F, p. 31). The specialist reported that claimant last saw Dr. Browning on July 31, 1985. The specialist said that claimant was reluctant to look for work (Ex. F, pp. 25 & 26). Terri Schmitz, claimant's new rehabilitation specialist, wrote to Dr. Browning for a rating, a release to return to work evaluation and a return to work date. Dr. Browning replied on July 30, 1985 as follows. This letter is in reference to G. Joseph Trump in answer to your letter of July 2, 1985. As you remember from our phone conversation of June 26, 1985; I stated that Mr. Trump would not be able to return to his former type of employment as a truck driver, but he should be able to perform other types of jobs and duties at that time or at least would be available for further testing and could perform light duty work, should not lift over 35 lbs. on an occasional basis and only up to 35 lbs. on a repetitive basis. While I feel TRUMP V. DICKEY TRANSPORT Page 7 that he could probably work an 8 hour shift at this time, it would be required that he be allowed to walk and sit and stand intermittently during that time. I feel that he has a permanent partial disability of 25% of his back. I hope that this clarifies any problem. (Ex. F, p. 17) On August 28, 1985 Schmitz reported that claimant was reluctant to look for work. He preferred to go to junior college. He talked about it but never started allegedly due to a lack of funds (Ex. F, pp. 15 & 16). Schmitz filed this final report on December 2, 1985. Final Report Mr. Trump has not responded to letters or telephone calls from this counselor; however, his mother indicated he is not going to school, but is working around the family farm. She also reported he has occasional back pains, but these come and go and are not major problems. * * * * * Recommendations TRUMP V. DICKEY TRANSPORT Page 8 As Mr. Trump has been released by Dr. Browning and Mr. Trump has not responded to calls or letters from this specialist, it would appear he is not interested in further vocational exploration or assistance, therefore, JVS will be closing our file at this time. (Ex. F, p. 12) On January 13, 1986 the JVS program director wrote to claimant's attorney. She pointed out that they had instructed claimant how to contact Missouri vocational rehabilitation assistance and how to contact the college financial aid office for a Pell Grant. She added that claimant never did follow through on either one of these suggestions. She pointed out that JVS counselors had stressed to claimant that he should begin his education while he was still receiving workers' compensation payments but claimant did not do so. She also stated that JVS had promised to help claimant with job placement but claimant did not respond to their telephone calls (Ex. F, pp. 7-9). Claimant did finally enter college in the fall of 1986 with the aid of the Missouri division of vocational rehabilitation (Ex. F, pp. 1-5). He has completed two semesters of college, namely the fall of 1986 and the spring of 1987 (Ex. F, p. 6). Defendants eventually had claimant examined by Scott B. Neff, D.O., on December 30, 1985. Dr. Neff was critical of the manipulations under anesthesia. He declared maximum healing should have ended one year after claimant's injury which would have been December of 1984 which was one year prior to the time of his examination in December of 1985. Dr. Neff stated claimant had a ten percent impairment of his back according to the guides published by the American Medical Association. Dr. Neff said that some persons can return to truck driving if they are able to avoid the heavy unloading. He said that claimant could return to many activities. He said claimant has stiffness and backaches. He said that claimant should avoid heavy lifting and should not shovel. Dr. Neff recommended a CAT scan and back school for claimant (Ex. E, pp. 1-3). Claimant attended back school on June 6, 1986 and again on June 13, 1986 (Ex. E, pp. 4 & 5). The CAT scan which Dr. Neff ordered showed the following: "Findings: There is diffusely bulging disc material seen at L3-L and L4-L5. Mild to moderate degenerative changes are seen in the posterior facets of the lower lumbar spine. No evidence of herniated disc. Nothing for central canalicular stenosis or lateral foraminal stenosis.O (Ex. E, p. 6). Claimant's wage records have been introduced into evidence for a proper computation of the rate (Ex. B). More will be presented on the rate in the next section of this decision. Claimant made a claim for transportation expenses to see the vocational rehabilitation specialists at JVS (Ex. 1, p. 1). Claimant also presented an itemized statement of mileage expense to come to Des Moines for medical examination and evaluation at the request of defendants (Ex. 1, p. 2). 12-30-85 Dr. Neff, Des 230 mi. $55.20 Moines, Iowa TRUMP V. DICKEY TRANSPORT Page 9 4-28-86 Iowa Lutheran 230 mi. $55.20 Hospital, Des Moines, Iowa and Dr. Neff, Des Moines, Iowa 6-13-86 Physical Therapy 230 mi. $55.20 Consultants, Des Moines, Iowa Total $165.60 (Ex. I) APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of December 8, 1982 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 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). 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.O Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 51, 257 (1963). TRUMP V. DICKEY TRANSPORT Page 10 The injury of December 8, 1982 was the cause of claimant's time off work for a period of recovery from the date of the injury, December 8, 1982 until March 2, 1983, the date that claimant returned to work (Form 2A, industrial commissioner's file; Ex. B, p. 3). The injury was also the cause of claimant's time off work for a period of recovery from May 19, 1983, when claimant terminated his employment with employer because he was unable to work, until July 31, 1985 when Dr. Browning formally released claimant to return to work and gave claimant a permanent functional impairment rating. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60 (Iowa 1981); Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 1984). Claimant is entitled to healing period benefits for both of these periods of time. It is true that at one point, on August 16, 1984, Dr. Browning told the vocational rehabilitation specialist that claimant had reached maximum medical improvement and Dr. Browning imposed restrictions (Ex. F, pp. 34 & 35). However, Dr. Browning refused to give a permanent functional impairment rating at that time. Also, he continued to treat claimant and subsequently noted that claimant was "making progress" and "gaining strength" on his next report (Ex. F, p. 33). Dr. Neff's statement that claimant should have reached maximum medical improvement a year after the injury may be correct. Claimant's period of recovery up to one and one-half years was unusually long in comparison with other back injuries of this nature. However, when the opinion is rendered three years after the injury it does not carry as much weight as a treating physician who was seeing claimant regularly in conjunction with a vocational rehabilitation specialist who was present during most of these examinations by Dr. Browning. Dr. Neff's opinion would have been more valuable if it had been rendered closer to the point in the recovery that it referred to rather than two years later. Therefore, deference is given to the treating physician, Dr. Browning, based upon the evidence presented in this case. Rockwell Graphic-Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (1985). The operative phrase in industrial disability is loss of earning capacity. Ver Steegh v. Rolscreen, IV Iowa Industrial Commissioner Report 377 (1984). This injury was the cause of permanent disability. Dr. Browning awarded a 25 percent permanent functional impairment rating. Dr. Browning imposed restrictions of no more employment as a truck driver and a weight restriction of 35 pounds. Dr. Neff awarded a 10 percent permanent functional impairment rating. He felt that claimant should avoid heavy lifting and should not shovel. With truck driving ruled out, claimant was forced from the method he had used most in the last 15 years to make a living. Claimant followed Dr. Browning's advice and did not drive a truck. Dr. Neff indicated that claimant might try to drive a truck because others do it. Claimant testified that he could not TRUMP V. DICKEY TRANSPORT Page 11 drive a truck because he could not stand the bouncing (Ex. E). Therefore, it is determined that claimant is foreclosed from the occupation of over-the-road truck driving which he had followed for the last 15 years and this will cause a sizable reduction in his earning capacity. Michael v. Harrison County, Thirty-fourth Biennial Report of the industrial Commissioner 218, 220 (Appeal Decision 1979). Claimant was age 33 at the time of the injury and age 37 at the time of the hearing. Claimant is young enough to be retrained. The feasibility of retraining is one of the considerations involved in determining industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 78 (1984). Claimant had completed high school and one year of college prior to the injury. Claimant has gone back to college although he was very slow in getting started. He was urged to go in 1984 but didn't get started until 1986. Claimant hoped to graduate with an accounting degree in 1988. His long term goal is business management. In the employer's favor is the fact that employer offered serious vocational rehabilitation to claimant and paid claimant a reasonable amount of workers' compensation benefits for this injury. Schelle v. Hygrade Food Products, Thirty-third Biennial Report of the Industrial Commissioner 121 (1977). Claimant was admonished by the vocational rehabilitation specialist to get his college training started while he was receiving workers' compensation payments. Claimant was actually paid workers' compensation payments for a total of 145 weeks. Even though claimant cannot return to over-the-road truck driving he has other skills and a varied employment background. Claimant has experience with construction, sales, maintenance, police work and self-employment. His past employments provide him with a number of qualifications and work experiences. Claimant apparently knows how to farm also. At several points in the medical evidence it was indicated that claimant had worked on farms. He had strained himself lifting bales and lifting a car out of a ditch. He admitted to helping his parents and brothers and sisters farm by driving a tractor. Dr. Browning's award of a 25 percent permanent functional impairment rating seems high when compared with other cases of this nature. Dr. Browning did not state how he arrived at this number. Dr. Neff's award of a ten percent permanent functional impairment rating appears to be more reasonable, particularly for a back injury that has not required surgery and for which no surgery is contemplated. Dr. Neff stated that he used the AMA guides. Furthermore, the sacralization that Dr. Browning initially described is normally a congenital defect. Also, Dr. Neff's CAT scan showed a considerable amount of degeneration for claimant's young age. Industrial disability can be equal to, less than or greater than functional impairment. Lawyer & Higgs, Iowa Workers, Compensation -- Law & Practice, section 13-5, page 116 and 1987 supplement page 20. The fact that claimant earned $20,000.00 in 1982 and only $5,000.00 in 1986 is not a real standard. Claimant has not tried to work full time since the injury. Claimant was a student for one-half of the year in 1986. TRUMP V. DICKEY TRANSPORT Page 12 Based on the foregoing discussion and all of the factors that are used to determine industrial disability, it is determined that claimant has sustained a 30 percent industrial disability to the body as a whole. Defendants' calculation of the proper rate is not correct. It leaves off the thirteenth week prior to the injury and considered the $200.00 of vacation pay as a week of earnings whereas it is actually a payment of accumulated vacation time rather than a separate weeks earnings. Claimant had earnings that same week of October 28, 1982 in the amount of $431.04 (Ex. B, p. 2). Claimant's attorney correctly computed the rate in his brief at paragraph six as follows. Claimant's rate of weekly compensation is $278.62. Claimant's last day of work was December 8, 1982. He received pay for that period of work on December 16, 1982, according to the payroll records (Combined Exhibit B). Claimant was paid 16 cents per mile (claimant's Petition, testimony of claimant). Consequently, the claimant is paid by his output so his earnings are properly computed in accordance with Section 85.36(6) of the 1987 Code of Iowa which provides that an employee paid on the basis of output should have his weekly earnings computed by dividing by TRUMP V. DICKEY TRANSPORT Page 13 13 the earnings not including overtime or premium pay of said employee earned in the employ of the employer in the last completed period of 13 consecutive weeks immediately preceding the injury. The last completed period of 13 consecutive calendar weeks preceding the injury would include the checks issued to Joe Trump on September 23, 1982, through December 16, 1982. The October 28, 1982, payment of $200.00 was vacation pay which he received for working during his scheduled vacation. Likewise, the payment of $107.18 on December 9, 1982, should be disregarded as it was reimbursement for expense receipts turned in by Joe Trump. However, the $20.00 paid on December 2, 1982, as holiday pay should be included in accordance with the Commissioner's decision in Stevens v. John Morrell Company, Vol I, No. 1 Iowa Industrial Commissioner Decision 236 (1984) which stated that holiday pay is a regular payment as opposed to an irregular bonus, overtime or premium pay. Except for the payment of $200.00, $107.18, and $20.00 previously discussed, all other payments were regular salary payments. Referring then to Combined Exhibit B, the gross pay of the claimant for the applicable pay period would be as follows: Date of Week Number Paycheck Gross Weekly Pay Week 1 9-23-82 $506.78 Week 2 9-30-82 308.04 Week 3 10-7-82 489.02 Week 4 10-14-82 486.88 Week 5 10-21-82 413.90 Week 6 10-28-82 431.04 Week 7 11-4-82 339.76 Week 8 11-11-82 748.86 Week 9 11-18-82 401.66 Week 10 11-25-82 305.06 Week 11 12-2-82 415.00 Week 12 12-9-82 439.88 Week 13 12-16-82 489.14 Total Gross Weekly pay for 13 weeks immediately preceding injury on December 8, 1982 $5,775.02 $5,775.02 divided by 13 equals $444.23 The average gross weekly wage is of Joe Trump for the 13 weeks immediately prior to his injury is $444.23. The parties have stipulated in the Pretrial Report and Order that Gilbert Joe Trump is married and has five exemptions. Referring then to the Worker's Compensation Benefit Schedule effective July 1, 1982, on page 45 referring to gross weekly wages of $444.00 for a married person with five dependents is $278.62. TRUMP V. DICKEY TRANSPORT Page 14 This amount of $278.62 is the same amount which the defendants have compensated claimant. Computation of gross weekly wage is in accordance with the applicable statutes. The rate of compensation is in accordance with the Worker's Compensation Benefits Schedule published by the Iowa Industrial Commissioner on July 1, 1982. Consequently, the proper rate of compensation for the claimant is $278.62. (Claimant's Brief, paragraph 6) The carrier paid claimant at the rate of $278.62 per week. Why defense counsel disputed the rate at the time of the hearing was not immediately clear. Claimant testified that all of the prescriptions claimed were prescribed by either Dr. Kuehn or Dr. Browning for this injury. This testimony was not disputed. Therefore, claimant has sustained the burden of proof that he is entitled to payment for these prescriptions in the amount of $253.37 (Ex. I). Claimant is not entitled to mileage for vocational rehabilitation training. Vocational rehabilitation is not one of the authorized itemized expenses in Iowa Code section 85.27 as a medical expense; nor is it one of the items that the legislature provided for in Iowa Code section 85.70. Claimant is entitled to the medical mileage to travel to and from Des Moines to see Dr. Neff at defendants request in the amount of $165.65. FINDS OF FACT WHEREFORE, based upon the evidence presented the following findings of fact are made. That claimant was off work for a period of recovery due to this injury from December 8, 1982 until March 2, 1983 and again from May 19, 1983 until July 31, 1985. That Dr. Browning stated that claimant sustained a 25 percent permanent functional impairment and Dr. Neff said that claimant sustained a ten percent permanent functional impairment. That the proper rate of compensation is $278.62 per week. That claimant incurred $253.37 in prescription drugs due to this injury. That claimant incurred $165.65 in medical mileage due to this injury. That claimant sustained an industrial disability of 30 percent of the body as a whole. CONCLUSIONS OF LAW TRUMP V. DICKEY TRANSPORT Page 15 WHEREFORE, based upon the evidence presented and the principles of law previously discussed the following conclusions of law are made. That the injury was the cause of temporary disability during a period of recovery. That the injury was the cause of permanent disability. That claimant is entitled to healing period benefits from December 8, 1982 until March 2, 1983 and again from May 19, 1983 until July 31, 1985. That claimant is entitled to 150 weeks of permanent partial disability benefits based upon a 30 percent industrial disability to the body as a whole. That the proper rate of compensation is $278.62 per week. That claimant is entitled to $253.37 in prescription drug expense. That claimant is entitled to $165.65 in medical mileage expense. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant healing period benefits for twelve point two eight six (12.286) weeks for the period from December 8, 1982 to March 2, 1983 and one hundred fourteen point five seven one (114.571) weeks of healing period benefits for the period from May 19, 1983 to July 31, 1985, a total of one hundred twenty-six point eight five seven (126.857) weeks of healing period benefits, at the rate of two hundred seventy eight and 62/100 dollars ($278.62) per week in the total amount of thirty-five thousand three hundred forty-four and 90/100 dollars (35,344.90). That defendants pay to claimant one hundred fifty (150) weeks of permanent partial disability benefits based upon an industrial disability of thirty (30) percent of the body as a whole at the rate of two hundred seventy-eight and 62/100 dollars ($278.62) per week in the total amount of forty-one thousand seven hundred ninety-three dollars (41,793.00) beginning on July 31, 1985. That defendants are entitled to a credit for one hundred forty-five (145) weeks of workers' compensation benefits paid prior to the hearing at the rate of two hundred seventy-eight and 62/100 dollars ($278.62) per week in the total amount of forty thousand three hundred ninety-nine and 90/100 dollars ($40,399.90). That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. TRUMP V. DICKEY TRANSPORT Page 16 That defendants pay to claimant two hundred fifty-three and 37/100 dollars ($253.37) for prescription drug expense and one hundred sixty-five and 65/100 dollars ($165.65) in medical mileage. That defendants pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. That if claimant desires a second bifurcated hearing on the issue of Iowa Code section 86.13 penalty benefits that claimant arrange a conference call with the prehearing deputy and defendants' attorney for that purpose within ten (10) days of the signing and filing of this decision. Signed and filed this 4th day of April, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Richard L. Ambelang Attorney at Law 1920 Court Avenue Chariton, Iowa 50049 Mr. Ross H. Sidney Ms. Iris J. Post Attorneys at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1402.40; 1802; 1803 2505; 3002; 3102 Filed April 4, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GILBERT JOE TRUMP, Claimant, vs File No. 722320 DICKEY TRANSPORT, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNITED STATES FIDELITY & GUARANTY, Insurance Carrier, Defendants. 1402.40; 1802; 1803 Truck overturn was the cause of claimant's temporary and permanent disability. He was awarded benefits based on treating physician's period of recovery and defendant's evaluating physician's percent of impairment. 2505 Claimant awarded prescriptions and medical mileage. No allowance for mileage for vocational rehabilitation because sections 85.27 and 85.70 make no allowance for it. 3002 Claimant's attorney correctly calculated rate. 3102 Insurance carrier provided serious and beneficial vocational rehabilitation and workers' compensation benefits so claimant could go to school. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GILBERT JOE TRUMP, Claimant, vs. DICKEY TRANSPORT, File No. 722320 Employer, A P P E A L and R U L I N G UNITED STATES FIDELITY & GUARANTY, Insurance Carrier, Defendants. On May 25, 1988 claimant filed a motion to dismiss defendants' appeal in the above entitled action. Defendants have not filed an affidavit as required by section 86.24 of the Code of Iowa. From claimant's motion and review of the file it is also apparent that defendants have not complied with Division of Industrial Services Rule 343-4.30. WHEREFORE, claimant's motion to dismiss is sustained. Signed and filed this 3rd day of June, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Richard L. Ambelang Attorney at Law 1920 Court Avenue Chariton, Iowa 50049 Mr. Ross H. Sidney Ms. Iris J. Post Attorneys at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROBERT W. ROSE, Claimant, FILE NO. 722500 VS. A R B I T R A T I 0 N PEOPLES NATURAL GAS COMPANY, D E C I S I O N Employer, Self-Insured Defendant. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Robert W. Rose against Peoples Natural Gas Company, his self-insured employer. The case was heard at Council Bluffs, Iowa on December 16, 1986 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from Robert W. Rose; claimant's exhibits 1 through 5; and defendant's exhibits A through E. Exhibit 1 is records from claimant's initial hospitalization on December 24, 1982. Exhibit 2 is a series of reports from Raymond G. Lewis, M.D. Exhibits 3 and 4 are reports from James W. Dinsmore, M.D. Exhibit 5 is a deposition of Dr. Lewis taken July 9, 1986. Defendant's exhibit A is the deposition of Robert H. Westfall, M.D., taken September 4, 1986. Exhibits B and C are additional records from Jennie Edmundson Hospital dealing with the December 24, 1982 admission. Exhibit D is Dr. Westfall's standard surgeon's report. Exhibit E is a drawing made by claimant at hearing which purports to show his position at the time of the explosion from which this claim resulted. ISSUES Claimant seeks compensation for permanent partial disability based upon injuries allegedly sustained in an explosion which occurred on December 24, 1982. All other benefits, including section 85.27 benefits and weekly compensation for the time claimant has been off work, have been voluntarily paid by the employer. Claimant's claim for permanent partial disability deals with headaches and complaints of pain in his neck and shoulder region which he attributes to the explosion. The primary issues identified for determination at the time of hearing are whether the current complaints are a result of the explosion and whether such complaints constitute an injury which arose out of and in the course of employment. In the event that compensability for the complaints is found, then the issue regarding the degree of permanent partial disability is to be decided. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at hearing was considered when deciding the case. Robert Rose is a 58 year old man who is currently employed as a welder by People's Natural Gas Company. He has been so employed for approximately 20 years. On December 24, 1982, Rose was on call for emergencies which involved responding to suspected gas leaks after normal business hours in the Council Bluffs, Iowa district. Shortly after 4:00 p.m. on that date he was called out to the First Federal Savings and Loan Building located at 32nd and Broadway. While at the scene an explosion occurred which demolished the building and injured both claimant and a co-employee. Claimant testified that he suffered burns on his face and hands, had glass embedded in his legs and face and that he was thrown around by the impact but was not knocked down. Claimant was taken to Jennie Edmundson Hospital in Council Bluffs where his primary treating physician was Robert H. Westfall, M.D. Claimant's lacerations were sutured and burns were treated. He was discharged from the hospital on December 27, 1982 and then returned to work on January 9, 1983. Claimant testified that he now experiences headaches and pain in his neck. He takes pain medication on a daily basis. Claimant stated that his complaints, including dizziness, are most acute if he works with his hands over his head, works looking up or when he tries to hold his head up while working when laying down. He stated that it causes problems when he tries to weld pipe from a laying position. He testified that the nature of his duties has changed somewhat since the injury but that he still performs the same type of work and is able to perform all of his assigned duties. In recent years the extent of his work as an inspector has increased. Claimant testified that his pay has not decreased and that he is the only welder in the Council Bluffs district. Claimant stated that he has a high school equivalency certificate but has welded since he was 16 years old. He feels that his job is presently secure and he plans to retire when he reaches age 65. Claimant testified that he had considerable pain in his back and neck at the time he was initially hospitalized and that he reported it to Dr. Westfall. He stated that Dr. Westfall told him that he should hurt all over after what he had been through. Claimant testified that the symptoms continued and that in the spring of 1983 he sought care from Raymond G. Lewis, M.D., his family doctor. After several months of treatment by medication, ultrasound and massage did not seem to help he was referred to James W. Dinsmore, M.D., an orthopedic surgeon. Dr. Dinsmore prescribed additional medication and cervical traction. Claimant testified that he was in good health and had not had problems with his neck, back or headaches prior to the explosion. He denied sustaining any subsequent trauma. Claimant testified that at the time of the explosion he was located between the building and his van. Claimant denied telling the people at the hospital that the van had protected part of his body from the blast but that they seemed to have the idea that it had. Claimant stated that he was heavily clothed at the time and that the clothing protected part of his body. Defendant's exhibit A is the deposition of Dr. Westfall. Dr. Westfall, a general surgeon, provided claimant's initial medical care following the injury. His treatment of claimant ROSE V.PEOPLES NATURAL GAS COMPANY Page 3 commenced on December 25, 1982 and ended on January 7, 1983 (Ex. A, pp. 4-6). Dr. Westfall observed claimant to have burns and multiple lacerations to his face, forehead, lower extremities and the backs of his hands (Ex. A, pp. 5 & 8). Dr. Westfall felt that the injuries were caused by flying glass and debris from the explosion (Ex. A, pp. 8 & 9). Exhibit B, the admission note from the hospital, indicates that claimant had stated that he was standing opposite his truck with the door open when the explosion occurred and that part of his body was protected by the truck. Dr. Westfall made a similar indication in his deposition (Ex. A, p.9). Dr. Westfall testified that claimant made no complaint of pain in his back or neck during the course of treatment and that in his opinion claimant had not sustained any injury to his neck or back and that he expected no permanent disability to result from the injury (Ex. A, pp. 10-13). Raymond G. Lewis, M.D., a specialist in internal medicine, had seen claimant in December, 1971, for a general physical examination. He felt that claimant had been in good health at that time (Ex. 5, pp. 5 & 6). Dr. Lewis next saw claimant on May 31, 1983, with complaints of severe headaches, stiff neck with discomfort, dizziness when lying down, general stiffness and soreness (Ex. 5, pp. 6, 17 & 18). Dr. Lewis treated claimant with muscle relaxants, anti-inflammatory medication, and ultrasound to his neck (Ex. 5, pp. 8 & 9). When claimant's symptoms were not relieved, Dr. Lewis referred claimant to James W. Dinsmore, M.D., an orthopedic surgeon, for consultation. Dr. Dinsmore treated claimant with additional medication and cervical traction (Ex. 5, pp. 10 & 12). Dr. Lewis testified that claimant currently complains of problems when working while looking up with his hands overhead. He stated that claimant exhibits a full range of motion of his neck but with pain when doing so (Ex. 5, p. 13). Dr. Lewis testified that in his opinion claimant has a 25 percent permanent partial disability of the body as a whole due to the cervical condition and headaches which he experiences (Ex. 5, pp. 14, 30 & 34). He attributes the disability to the explosion and states that it was an injury in the nature of an aggravation of a preexisting condition in claimant's neck (Ex. 5, pp. 16 & 26). Dr. Lewis felt that claimant had been struck by considerable force, as evidenced by the substances that were embedded in his face, head, hands and legs. He felt that such force would be sufficient to aggravate a preexisting neck condition (Ex. 5, pp. 31-33). James W. Dinsmore, M.D., an orthopedic surgeon, examined claimant on November 29, 1983. He received complaints of pain in claimant's neck, the back of his shoulders, headaches and dizziness when lying down. He found claimant to exhibit a full range of neck motion but with pain on extension. X-rays showed narrowing at the C4-5 level with spurring and degenerative changes. They also showed the C4 vertebrae to be positioned slightly posterior to the C5. Dr. Dinsmore's initial impression was that claimant had a preexisting degenerative spondylitis at the C4-5 level which was aggravated by injury in the nature of an ROSE V.PEOPLES NATURAL GAS COMPANY Page 4 acute sprain of the cervical spine as a result of the injury on December 24, 1982. He initially did not expect claimant's cervical complaints to be a permanent problem but indicated that such a condition can become permanent (Ex. 3). A subsequent report, exhibit 4, dated April 22, 1986, indicates that Dr. Dinsmore found claimant to have continuing complaints. He stated that claimant has a 10 percent permanent impairment of the cervical spine and that the injury dates back to December 24, 1982. APPLICABLE LAW AND ANALYSIS There is no doubt but that claimant was injured on December 24, 1982 in the explosion. The injuries clearly included lacerations and burns. The dispute in this case deals with whether or not the injuries extended into claimant's cervical spine and produced the headaches, dizziness and pain in the neck of which claimant currently complains. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 24, 1982 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 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). 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). The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may,be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The evidence in the case presents a factual dispute regarding claimant's position at the time of the explosion. Claimant testified that the explosion produced sufficient impact to demolish and level the building. He stated that he was knocked about but not knocked down by the blast. Whether part of claimant's body was protected by a vehicle or protected by heavy clothing is a major point of contention with defendant urging that the mid-part of his body was protected by a vehicle while claimant denies such occurrence. The physical facts of the matter are that claimant had lacerations on his face, the backs of his hands and foreign fragments embedded at approximately the junction of the mid and distal third of the right leg which appear to have impacted the bone (Ex. 1). It appears that the lacerations existed only above the neck and below the knees. This would be a very unusual pattern for someone who had taken ROSE V.PEOPLES NATURAL GAS COMPANY Page 5 the full force of the impact in a standing position. It would not be impossible, however. As indicated by Dr. Lewis the neck is a stalk which supports the head. It would seem that the whipping or whiplash effect could have been greater if the head were exposed to the full impact of the blast and the body protected, as could occur if a person were standing behind a vehicle. There would likewise be substantial trauma and impact if the entire body were exposed to the impact of the blast. Generalized pain and discomfort would be expected following exposure to an impact such as the explosion. Where Dr. Westfall treated claimant for a period of approximately two weeks in late 1982 and early 1983, it is questionable regarding whether he would have much independent recollection apart from his records, particularly where claimant did not return to him for further treatment. The records of the initial hospitalization do not report any complaints of pain at any location in claimant's body, even those which were burned or lacerated. The admission note, exhibit B, contains a statement that claimant denied chest or abdominal distress but it makes no mention of complaints of neck pain. The physical examination contained in exhibit B shows the neck to be supple, that the trachea was in a midline position and that there were no burns. Neither the notes regarding the neck nor extremities, which were obviously injured, contained any indication of whether or not claimant made complaint of pain. It would normally be expected that a person with burns and lacerations would experience pain at the sites of those injuries. It would normally be expected that a person exposed to an impact of an explosion, as was claimant, would experience generalized stiffness and soreness. The records and reports in evidence make no showing of complaints of pain at any location on claimant's body. The fact that they failed to record reports of neck pain is not deemed to be particularly significant with regard to whether or not complaints of neck pain were made. Claimant's testimony regarding experiencing pain in his neck and back ever since the explosion occurred are accepted as correct. Drs. Lewis and Dinsmore relate claimant's neck complaints and headaches to the blast. Dr. Westfall does not. The basis for Dr. Westfall's opinion, however, is that claimant, to his recollection, made no complaint of pain in his neck. That rationale is found to be inconsistent with the actual facts of claimant experiencing pain in his neck with an onset at the time of the explosion. For these reasons the testimony and evidence from Drs. Lewis and Dinsmore is accepted as correct with regard to the explosion being a proximate cause of claimant's current complaints. While it is clear that claimant had a preexisting condition in his neck our Supreme Court has consistently stated 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 v. Firestone Tire & Rubber Co., 252 Iowa 369, 112 N.W. 2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613,106 N.W. 2d 591 (1960) ROSE V.PEOPLES NATURAL GAS COMPANY Page 6 A cause is proximate if it is a substantial factor in bringing about the results; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). In accordance with the opinion expressed by Dr. Dinsmore, claimant is found to have sprain of the cervical spine which has left him with a 10 percent permanent functional impairment of the cervical spine. The injury is an aggravation of a preexisting condition. Claimant also experiences headaches as indicated by Dr. Lewis. 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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Drs. Dinsmore and Lewis have provided differing impairment ratings. Dr. Dinsmore has provided a 10 percent rating and Dr. Lewis a 25 percent rating, both of the body as a whole. Dr. Lewis explains the difference as resulting from his decision to include headaches while Dr. Dinsmore's rating appears to be based solely on the condition of claimant's neck. More important than any functional impairment rating is the fact that claimant has been able to return to his usual employment and has not suffered any loss of earnings as a result of the injuries. He testified that he is able to perform his work, albeit with discomfort. He has not been unable to perform any of his assigned duties. Claimant appears to be appropriately employed in light of his education, experience and physical condition. Claimant's employment appears secure and the evidence provides no reason to expect that he will not be able to fulfill his plan of working until retirement at age 65. When all the appropriate factors of industrial disability are considered, it is found that claimant's disability, when evaluated industrially, is 10 percent of the body as a whole which entitles him to receive 50 weeks of compensation at the stipulated rate under the provisions of section 85.34(2)(u). Claimant's healing period under section 85.34(l) was terminated by his return to work on January 9, 1983. At that time he was not symptom free but it appeared that no permanency would result according to the evidence that has been received. It is only when a course of medical treatment failed to relieve ROSE V.PEOPLES NATURAL GAS COMPANY Page 7 all of claimant's symptoms that there became some indication that permanent partial disability would result. In his report of August 20, 1984 (Ex. 3), Dr. Dinsmore indicated that permanency was unlikely. It was not until the report of April 22, 1986 that Dr. Dinsmore assigned a permanent impairment rating (Ex. 4). Exhibit 2, at page 3, a report from Dr. Lewis dated August 3, 1984 indicates that claimant had permanent disability that would be approximately 25 percent. This is the first rating which appears in the record. On May 1, 1984, Dr. Lewis had indicated that claimant had not yet reached maximum recovery (Ex. 2, p. 2). This is a proceeding in arbitration. It would seem that the rules of Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); and Farmer's Elevator Co. Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979) would be controlling. In his case, however, it was not apparent that any permanent disability would result. This is a substantial difference from the two cases cited. The first medical indication, other than complaints and a continuing course of treatment with Drs. Lewis and Dinsmore, that permanency had resulted is found in the report from Dr. Lewis dated August 3, 1984. Accordingly, payment of claimant's entitlement to compensation for permanent partial disability is determined to run from August 3, 1984, the first day on which it was indicated that permanency would result. The employer will be held responsible for interest from the date that a basis existed to support a claim for some degree of permanent partial disability. That date is August 3, 1984. FINDINGS OF FACT ROSE V.PEOPLES NATURAL GAS COMPANY Page 8 1. On December 24, 1982, Robert W. Rose was a resident of the State of Iowa employed by People's Natural Gas Company in Council Bluffs, Iowa. 2. While performing the duties of his employment Rose was injured in an explosion. 3. The injury included a sprain of claimant's cervical spine which has become permanent. 4. Claimant has not experienced actual loss of earnings or income as a result of the injury. 5. Claimant does have some limitations, however, which affect his earning capacity. 6. Claimant has suffered a 10 percent loss of his earning capacity as a result of the injuries suffered in the explosion on December 24, 1982. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury and disability to claimant's cervical spine, his dizziness and headaches are the result of an injury that arose out of and in the course of his employment with People's Natural Gas Company on December 24, 1982. 3. Claimant has sustained a 10 percent permanent partial disability, when evaluated industrially, which entitles him to receive 50 weeks of compensation under the provisions of section 85.34(2)(u). ORDER IT IS THEREFORE ORDERED that defendant pay claimant fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of two hundred ninety-seven and 21/100 dollars ($297.21) per week commencing August 3, 1984. IT IS FURTHER ORDERED that all amounts be paid in a lump sum together with interest at the rate of 10 percent per annum from the date each payment became due as ordered herein. IT IS FURTHER ORDERED that defendant pay the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4 .33. IT IS FURTHER ORDERED that defendant file a claim activity report as requested by the agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 21st day of April, 1987. ROSE V.PEOPLES NATURAL GAS COMPANY Page 9 MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dean T. Jennings Attorney at Law Suite 222 Council Bluffs Savings Bank Bldg. Council Bluffs, Iowa 51501 Mr. James R. Talcott Attorney at Law People's Natural Gas Company 25 Main Place Council Bluffs, Iowa 51501 1108; 1402.30; 1402.40 1803; 2206; 3800 Filed April 21, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROBERT W. ROSE, Claimant, FILE NO. 722500 VS. A R B I T R A T I 0 N PEOPLES NATURAL GAS COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 1108; 1402.30; 1402.40; 1803; 2206; 3800 Claimant was injured in an explosion. He was initially treated for burns and lacerations. Approximately three months later he sought medical care for headaches and neck pain which he attributed to the explosion. Where the records of his initial hospitalization contain no entries of complaints of pain in any portion of his body, even those obviously injured, it was found that those records were not persuasive evidence of a lack of pain in claimant's neck. A. course of treatment for the headaches and neck complaints was unsuccessful at resolving them. The physician treating those complaints assigned a permanent impairment rating. The date the rating was assigned was held to be the date upon which compensation for payment of PPD commenced and interest was awarded accordingly. Teel v. McCord was distinguished because in this case there was no indication from the outset that any permanency would necessarily be forthcoming. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DONALD UMPHRESS, Claimant, VS. File No. 723184 ARMSTRONG RUBBER COMPANY, A P P E A L Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding claimant permanent partial disability benefits based on a 30 percent industrial disability. The record on appeal consists of the transcript of the arbitration hearing together with joint exhibits 1 and 2 and the briefs of the parties on appeal. ISSUE Defendants state the following issue on appeal: "Whether the deputy's award of thirty percent (30%) industrial disability is excessive under the facts and law in this case." REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be fully reiterated herein. Claimant sustained a work injury to low back on January 4, 1983 when he was lifting tire cord. Claimant's primary treating physician, Marshall Flapan, M.D., has diagnosed claimant as suffering from degenerative disc disease which makes claimant susceptible to back injury. Dr. Flapan revealed that claimant has a herniated disc which may require surgery in the future and opined that the work injury claimant sustained in January 1983 was the precipitating cause of the problems for which he has treated claimant. Finally, Dr. Flapan opines that claimant has a five percent permanent impairment to the body as a whole as a result of his back condition. Claimant is 47 years old and a high school graduate. Prior to starting his employment with defendant-Armstrong Rubber Co. (hereinafter Armstrong) in 1966, claimant served in the armed forces as an aircraft technician, worked as a carpenter and worked in a bank. Claimant's primary job at Armstrong has been truck tire building which requires lifting from 90 to 135 pounds frequently. Claimant was released to return to work on January 26, 1983 with restrictions against lifting over 25,pounds and no repetitive lifting, twisting, bending, pushing or pulling. Claimant now works as janitor at Armstrong. Claimant estimates that he earns about $1.50 an hour less as a janitor than he earned as truck tire builder, but he admits that he is allowed to work more hours as a janitor. APPLICABLE LAW 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 v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). 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. UMPHRESS V. ARMSTRONG RUBBER COMPANY Page 3 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 formula 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). ANALYSIS As indicated previously the parties are unable to agree to claimant's permanent disability. Functional impairment is one factor in determining industrial disability as well as in the actual reduction of earnings, however, these are not the only factors used in determining reduction in earning capacity. Claimant has a five percent functional impairment rating and restrictions. These restrictions keep claimant from returning to the position he held at the time of his injury. Claimant is 47 years old and has worked for Armstrong since 1966. Although claimant has worked for Armstrong at a lower paying position, he will be able to work more hours per year and is secure in that position. Claimant may require surgical intervention some time in the future but not at this time. Claimant's age, work restrictions and actual reduction in earnings are factors which adversely affect his earning capacity. The deputy, in his decision, stated: Little evidence was offered to demonstrate claimant's potential for vocational rehabilitation but such rehabilitation is not necessary at this time as claimant is engaged in suitable, stable employment at the present time. However, despite his current employment, claimant is a semiskilled heavy laborer who has been significantly [sic] impaired in his ability to perform semiskilled heavy labor. Should he lose his current light duty job for any reason, he probably will experience great difficulty in finding replacement employment. "It is a well-known fact of modern economic life that the demand for unskilled and semiskilled labor has been rapidly declining with the advent of the age of mechanization and automation, and that the great bulk of the persistent hard-core unemployment of the United States is in these categories." Guyton v. Irving Jensen Co., 323 N.W.2d 101, 105 (Iowa 1985). It appears from this that the deputy based his decision in part on what may occur to claimant in the future as opposed to his present condition. This is mere speculation. Furthermore UMPHRESS V. ARMSTRONG RUBBER COMPANY Page 4 claimant is not hard-core unemployed and the holding of Guyton is not relevant in this case. It is determined that claimant's industrial disability is 12 percent as a result of his injury on January 4, 1983. FINDINGS OF FACT 1. Claimant started working for Armstrong in 1966. 2. Although prior to January 4, 1983 claimant injured his back. Claimant had no functional impairment or working restrictions. 3. On January 4, 1983 claimant injured his back while working for Armstrong as a truck tire builder. 4. As a result of his injury on January 4, 1983 claimant has a functional impairment of five percent. 5. As a result of his injury on January 4, 1983 claimant is restricted by his physician from lifting over 25 pounds and from repetitive bending, lifting, pushing and pulling. 6. Claimant is unable to return to the job he held at the time of his injury because of the restrictions. 7. Claimant has suffered an actual reduction in earnings as a result of his injury on January 4, 1983. 8. Claimant is highly motivated to remain gainfully employed. 9. Claimant is 47 years old, has a high school education and, is intelligent. 10. Claimant is presently employed by Armstrong as a janitor. 11. As a result of his injury on January 4, 1983 claimant has an industrial disability of 12 percent. 12. Defendants have previously paid claimant 25 weeks of permanent partial disability. CONCLUSIONS OF LAW Claimant has met his burden in proving he is entitled to an additional 35 weeks of permanent partial disability benefits. WHEREFORE, the decision of the deputy is modified. ORDER THEREFORE, it is ordered: That defendants shall pay to claimant thirty-five (35) additional weeks of permanent partial disability benefits at the UMPHRESS V. ARMSTRONG RUBBER COMPANY Page 5 rate of two hundred eighty-two and 39/100 dollars ($282.39) per week from March 1, 1985 (this date is twenty-five (25] weeks after the stipulated commencement date of September 7, 1984). That defendants shall pay accrued weekly benefits in a lump SUM. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That all costs including the transcription of the hearing proceeding are taxed to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of August, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Robert L. Pratt Attorney at Law 1913 Ingersoll Des Moines, Iowa 50309 Mr. Terry L. Monson Attorney at Law 300 Liberty Bldg. Des Moines, Iowa 50309 1803 Filed August 27, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DONALD UMPHRESS, Claimant, VS. File No. 723184 ARMSTRONG RUBBER COMPANY, A P P E A L Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ 1803 The dispute on appeal was the extent of claimant's industrial disability. The deputy found 35 percent, however, the deputy based his decision on what may occur to claimant in the future as opposed to his present condition. This is mere speculation. Deputy's citation of the holding in Guyton was irrelevant as claimant is not hard-core unemployed. Claimant found 12 percent industrially disabled. Modified. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROY L. GRAVES, Claimant, File No. 723352 VS. CROUSE CARTAGE COMPANY, A R B I T R A T I 0 N Employer, and D E C I S I 0 N LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Roy L. Graves against Crouse Cartage Company, his former employer, and Liberty Mutual Insurance Company, its insurance carrier. The case was heard at Des Moines, Iowa on March 17, 1987 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of claimant's exhibit 1, an exhibit which has 65 pages, and testimony from Roy L. Graves and Gary Walljasper. ISSUES The claimant seeks authorization to have surgery performed as recommended by William R. Bouldon, M.D. Claimant seeks additional healing period and an award of permanent partial disability if surgery is not authorized. The issues presented by the parties include whether the stipulated injury of January 7, 1983 is a proximate cause of permanent disability of any degree; whether claimant is entitled to additional healing period over and above the 36.85 weeks which the parties stipulated have been paid at the rate of $305.08 per week, which rate is stipulated to be the correct rate in this case; and, determination of claimant's entitlement to compensation for permanent partial disability, should claimant not be authorized to have the surgery recommended by Dr. Boulden. SUMMARY OF EVIDENCE All evidence received at hearing is considered when deciding GRAVES V. CROUSE CARTAGE COMPANY Page 2 this case even though it may not necessarily be referred to in this decision. Roy L. Graves is a married, 32-year-old man with two minor children. He is a graduate of Pleasantville High School and lives in Knoxville, Iowa. Graves was injured on January 7, 1983 while unloading large truck tires. There is no evidence in the record of prior back problems and claimant denied having any prior back problems. Following the injury of January 7, 1983, Graves was off work for several weeks and treated under the direction of Thomas B. Summers, M.D. The treatment was generally in the nature of physical therapy (exhibit 1, pages 23-37). Dr. Summers diagnosed claimant's condition as a herniated lumbar disc (exhibit 1, page 22). Following the treatment, claimant returned to work with Crouse Cartage Company in the same position as he had occupied at the time of injury. He continued to work until laid off in October, 1983, drew unemployment and then found work driving a coal truck in March, 1984. After approximately one and one-half years, claimant was laid off from the coal truck position. Claimant subsequently returned to Dr. Summers and voiced complaints consistent with those he expressed at hearing. Namely, he indicated that he had gotten along reasonably well while off work and while receiving physical therapy, but that when he returned to work for Crouse Cartage Company, his symptoms returned. He expressed discomfort with extended walking, standing on cement or sitting in a truck for a long period of time. Dr. Summers found no evidence of a neurological deficit and no evidence of any muscle spasm. He suspected that claimant may have a lumbar radicular syndrome, but recommended against surgery. He advised that claimant obtain a second opinion and expressed no objection to having claimant examined by Dr. Boulden (exhibit 1, page 40-41). Under the direction of Dr. Boulden, a CT scan of claimant's lumbar spine was performed which was interpreted as showing marked lateral foraminal stenosis at the L4-L5 level on the left and also a bulging disc at that same level (exhibit 1, page 7). A discogram was also performed and interpreted by Dr. Boulden as being abnormal. Dr. Boulden recommended that claimant undergo discectomy and posterior lumbar interbody fusion -and felt that there was an 80% chance that the surgery would be effective at relieving claimant's symptoms (exhibit 1, page 11). Claimant was agreeable to having surgery, but Liberty Mutual Insurance Company, in accordance with its normal procedures, sought a second opinion on the advisability of surgery and sent claimant to Thomas A. Carlstrom, M.D. Dr. Carlstrom recommended against the performance of an anterior fusion or any other surgery. He, did state, however, "...a myelography may indicate a large central herniated disc that could possibly be excised for improvement of his symptoms." Dr. Carlstrom said he would recommend surgery if a myelogram were to indicate the existence of a large central herniated disc. He felt that claimant had reached maximum healing, had a 3-5 percent permanent functional impairment and should be restricted to lifting a maximum of 50 pounds or 20 to 25 pounds repetitively (exhibit 1, pages 1-3). GRAVES V. CROUSE CARTAGE COMPANY Page 3 Claimant was also evaluated at the University of Iowa Hospitals and Clinics by Thomas R. Lehmann, M.D. The report states, "Our opinion is that it seems reasonable that if he has an abnormal discogram and Dr. Bowden [sic] feels this is the cause of his pain, then it is reasonable to do an interbody fusion. It is also reasonable that further diagnostic studies might be done to possibly to [sic] look for any other abnormality being a myelogram followed by a CT scan." (Exhibit 1, page 9) Based upon the history given to them, Drs. Carlstrom and Boulden both opined that the injury of January, 1983 was a cause of claimant's symptoms and complaints (exhibit 1, pages 1 and 10). Dr. Boulden went on to state, however, that if claimant were symptomatic subsequent to recovery from the 1983 injury, that some new causative factor would be responsible for the symptoms. From the record it is clear that claimant did improve through treatment in early 1983. The final therapy note (exhibit 1, page 35) states, "During final treatment patient had very little muscle spasm or discomfort in the low back." The concluding report from Dr. Summers in 1983 states that claimant was essentially symptom free..." It concludes with the statement, OSeemingly, Mr. Graves has enjoyed complete and satisfactory recovery" (exhibit 1, page 44). It should be noted that claimant had not yet returned to work at the time the statements from the therapist and Dr. Summers were made. Claimant testified that he was never completely symptom free. APPLICABLE LAW AND ANALYSIS The occurrence of the injury in January, 1983 was stipulated by the parties. Proximate cause is, however, at issue. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 7, 1983 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The opinions expressed by Drs. Carlstrom and Boulden depend upon the accuracy of claimant's history. He testified concerning GRAVES V. CROUSE CARTAGE COMPANY Page 4 ongoing symptoms and complaints commencing with his return to work in early 1983. The notes of physical therapy and from Dr. Summers showing improvement were made at a time when claimant had not yet returned to work. Close reading of those reports does not show complete recovery although they do indicate substantial improvement. Claimant's demeanor was observed at hearing. There is nothing in the record which contradicts his testimony of continuing complaints and that testimony is accepted as correct. Dr. Summers diagnosed a herniated lumbar disc in 1983 and that diagnosis remains in effect at the present time. The injury of January 7, 1983 is found and determined to be a proximate cause of claimant's current symptoms and condition in regards to his low back. Claimant seeks authorization for surgery. Code section 85.27 gives the employer the obligation to furnish reasonable services and supplies to treat an injured employee and the right to choose the care. The statute also gives the employee, if dissatisfied with that care, the option to apply to the industrial commissioner for a change of care. If an employer denies compensability of an injury, it cannot guide the medical treatment. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). It could be held that, since the employer denied liability due to an alleged lack of causation, the employer has no right to select the care. Choice of physician is not, however, the ultimate issue in this case. It appears from the record that Dr. Boulden whom claimant wishes to have provide his treatment, was authorized by the insurance carrier. The real issue is whether or not surgery is to be performed by Dr. Boulden at the employer's expense. The general rule is that once an employee has justifiably engaged a physician, a belated attempt by the employer to control the care will not cut off the right of the employee to continue with that care in the absence of a change of condition or evidence that the treatment is defective (2 Larson Workmen's Compensation, section 61.12(d), pages 10-821 to 10-823). What is meant by the provision in section 85.27 giving the employer " ... the right to choose the care" is sometimes misunderstood. Section 61.12(b) of 2 Larson Workmen's Compensation indicates that the reason for giving the employer choice of the medical care is as follows, "If the injured employee has completely unlimited free choice of his doctor, in some cases he may select a doctor, because of personal relationship or acquaintance, who is not qualified to deal with the particular kind of case, or who at any rate is incapable of providing service of the quality required for the optimum rehabilitation process." It has previously been held that section 85.27 gives the employer, and its insurance carrier, the right to choose a treating physician, but does not give them the right to invade the province of medical professionals in determining what diagnostic tests and/or methods of treatment are to be utilized. Pote v. Mickow Corp., #694639 (Review-reopening decision June 17, 1986); Martin v. Armour Dial Inc. #754732 (Arbitration decision July 31, 1985). Drs. Carlstrom, Boulden, Lehmann and Summers are all known to this agency as specialists who are well regarded and recognized as excellent physicians. This case is not one which presents a claimant who is seeking care by a physician who will accommodate unreasonable claims of disability. It likewise is GRAVES V. CROUSE CARTAGE COMPANY Page 5 not a case where the employer seeks to authorize only a physician who takes the position that a complete recovery has occurred and that no further treatment is warranted. Two Larson section 61.12(e) deals with the issue of differing diagnoses. It suggests that one approach is to let the result be determined by which diagnosis was eventually proven to be correct. It also indicates, however, that it is not improper to permit a change of medical care, upon petition, where there is a legitimate professional dispute as to the proper method of treatment for the injury. Southwestern Bell Telephone Co. v. Brown, 256 Arkansas 54, 505 S.W.2d 207 (1974). It appears in this case that the insurance carrier, acting on behalf of the employer, has authorized treatment by Dr. Boulden, Dr. Summers and Dr. Carlstrom. Claimant is permitted to obtain treatment, at the employer's expense, from whichever of those three physicians he chooses. The employer and its insurance carrier are not permitted to withdraw authorization for treatment by any of those three physicians and further, are not permitted to dictate to any of the physicians how the physician should practice medicine in providing treatment to Roy L. Graves. Neither the employer nor the insurance carrier has been shown to possess the expertise necessary to tell highly-regarded medical professionals how to practice medicine. Drs. Lehmann and Carlstrom have both indicated that a myelogram would be advisable prior to performing-any surgery. It is difficult to understand how claimant can be willing to undergo surgery, but is not willing to undergo a myelogram for diagnostic purposes in order to be more certain with regard to whether or not surgery is required. Claimant seeks a running award of healing period compensation. There is no evidence in the record which indicates that claimant has been disabled subsequent to April 4, 1983. It has been stipulated in paragraph 10 of the pre-hearing report that claimant has been paid 36.85 weeks of compensation at the correct rate. Reports filed by defendants show payment of 11.857 weeks. The difference between the Claim Activity Reports and the pre-hearing report is unexplained. Claimant's entitlement to healing period at this time is found to be 11.857 weeks running from January 8, 1983 through January 23, 1983 and from February 7, 1983 through April 4, 1983 in accordance with the records from Drs. Foley and Summers. Claimant's entitlement to future compensation for healing period will commence at such time as it is medically indicated that he is unable to engage in employment substantially similar to that in which he was engaged at the time of the injury in January, 1983. It will certainly commence upon hospitalization if such should occur. FINDINGS OF FACT 1. The injury of January 7, 1983 is a substantial factor in bringing about the herniated disc in claimant's spine and the symptoms referable to his spine with which he is now afflicted and for which he seeks treatment from William R. Boulden, M.D. GRAVES V. CROUSE CARTAGE COMPANY Page 6 2. William R. Boulden, M.D., is a physician who has been authorized by the employer and its insurance carrier to treat claimant. 3. The treatment recommended by Dr. Boulden is reasonable. 4. Claimant has not shown that, at any time subsequent to April 4, 1983, he has been medically incapable of performing work substantially similar to that in which he was engaged at the time of the injury. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and it parties. 2. The injury of January 7, 1983 is a proximate cause of the low back condition.which currently afflicts Roy L. Graves. 3. Defendants are responsible for expenses of treatment performed by or under the direction of William R. Boulden, M.D. 4. Section 85.27 of the Code gives the employer and its insurance carrier the right to select the physician or physicians who will treat an injured worker (and also other choices of selection such as selection of hospital, therapist, source of prosthetic devices, etc.), but it does not give them the right to direct or control the physician in matters involving the exercise GRAVES V. CROUSE CARTAGE COMPANY Page 7 of professional medical judgment such as determining what methods or diagnosis or treatment are to be employed in any particular case. 5. Claimant is not entitled to additional healing period over and above that which has been paid at this time. ORDER IT IS THEREFORE ORDERED that claimant may obtain medical care from William R. Boulden, M.D., and that the employer and its insurance carrier may not direct Dr. Boulden with regard to the methods of diagnosis or treatment to be employed. All treatment performed by Dr. Boulden will be at defendants' expense under the provisions of code section 85.27. IT IS FURTHER ORDERED that claimant has, as of date of hearing, an entitlement to eleven point eight five seven (11.857) weeks of compensation for healing period at the rate of three hundred five and 08/100 dollars ($305.08) per week, which entitlement has been previously fully satisfied by defendants. IT IS FURTHER ORDERED that defendants are not permitted to withdraw authorization for treatment from Drs. Boulden, Carlstrom or Summers without first obtaining an order from this agency permitting them to do so. IT IS FURTHER ORDERED that costs of this proceeding are assessed against defendants. Signed and filed this 27th day of July, 1987. MICHAEL G.TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jim Lawyer Attorney at Law 2141 Grand Avenue P.O. Box 367 Des Moines, Iowa 50312 Mr. W.C. Hoffmann Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 2501, 2700 Filed July 27, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROY L. GRAVES, Claimant, File No. 723352 VS. CROUSE CARTAGE COMPANY, A R B I T R A T I 0 N Employer, and D E C I S I 0 N LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 2501, 2700 This case presented a dispute between competent medical specialists regarding whether or not surgery for claimant's condition was appropriate. The dispute was between physicians who had been authorized by the employer, acting through its insurance carrier. It was held that the employer, and its insurance carrier, have the right to select which physicians will provide treatment, but do not have the right to dictate to the physicians how to practice medicine in matters involving the exercise of professional medical judgment such as selection of diagnostic tests or methods of treatment. Claimant was allowed to select care from the authorized physicians. Claimant was specifically granted approval to obtain care from the authorized physician of his choice; the decision regarding surgery was left up to that physician and the claimant; and, defendants were prohibited from withdrawing authorization without obtaining an order from this agency permitting them to do so.