BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH R. COOK, Claimant, VS. IOWA MEAT PROCESSING COMPANY, Employer, File Nos. 727578/771086 and A P P E A L ARGONAUT INSURANCE COMPANY, D E C I S I 0 N and CHUBB INSURANCE COMPANY, Insurance Carriers, and SECOND INJURY FUND OF IOWA, Defendants. STATEMENT OF THE CASE Defendant-second injury fund appeals from a consolidated review-reopening and arbitration decision in which the second injury fund was ordered to pay to claimant 93 3/4 weeks of compensation. Claimant was denied all compensation for the injury he alleged in file no. 771086 (arbitration proceeding). The record on appeal consists of the transcript of the consolidated proceeding; joint exhibits 1 through 9; and claimant's exhibit B and joint exhibits (second injury fund and claimant) C, D, E, F, G, I, J, L, N and S together with the briefs and filings of all parties on appeal. ISSUES Defendant-second injury fund states the following issues on appeal: I. Whether the deputy erred in determining claimant's first injury was an injury to a scheduled member as contemplated by the second injury fund statute? II. Whether the deputy erred in determining claimant's second injury was an injury to a scheduled member as contemplated by the second injury fund statute? III. Whether the deputy erred in finding that claimant was 75% industrially disabled? IV. Whether the deputy erred in finding that only 10% of claimant's industrial disability resulted from claimant's second injury? V. Whether the deputy erred in making his computation of fund liability? REVIEW OF THE EVIDENCE The consolidated review-reopening and arbitration decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Briefly stated, claimant sustained a work injury on February 17, 1983 to his left arm for which he was awarded, in an appeal decision filed February 8, 1985, 50 weeks of permanent partial disability benefits for a 20 percent impairment to the left upper extremity. Claimant, in 1975, suffered an injury to his right arm and shoulder as a result of an improperly administered blood test. The 1975 injury resulted in the removal of the first right rib. Phillip J. Monnig, M.D., opines that claimant sustained a 50 to 75 percent impairment of the right upper extremity as a result of the 1975 injury. Dr. Monnig was the treating physician for that injury. Claimant alleges that he sustained an injury to his left arm on September 19, 1984 when he was cutting meat off of jaw bones. Claimant has worked intermittently since the 1983 injury with continued pain because, he states, he needed the money. At the time of the hearing claimant was 47 years old with a sixth grade education. His work experience is limited to unskilled manual labor. Claimant has worked for numerous different employers over the years which he attributes to alcoholism. However, he states that he has not had a drink in five years. APPLICABLE LAW AND ANALYSIS Claimant's recovery in this case as the deputy correctly noted lies with the second injury fund. Claimant has established neither a change of condition since the appeal decision of February 8, 1985, nor a new injury on September 19, 1984. Therefore, the analysis here will focus on the extent of liability of the second injury fund. The first argument made by the second injury fund is that claimant's 1975 injury affected his body as a whole. Undoubtedly that injury affected claimant's body as a whole; however, that injury also resulted in a loss of use of a scheduled member-claimant's right arm. For the purpose of imposing second injury fund liability, a prior injury affecting a scheduled member is all that is necessary. The second argument made by the second injury fund is that claimant's second injury resulted in disability to the body as a whole. The nature of the injury that claimant sustained on February 17, 1983 was specifically found by the appeal decision filed February 8, 1985 to be limited to claimant's left arm. See findings of facts, Appeal Decision, February 8, 1984. As no change of condition is found in this decision which holds that the February 17, 1983 injury has resulted in subsequent disability to the body as a whole, the nature of claimant's 1983 injury is res judicata. COOK V. IOWA MEAT PROCESSING COMPANY Page 3 The third argument made by the second injury fund concerns the extent of claimant's industrial disability. The analysis of this issue set out in the consolidated review-reopening and arbitration decision is adequate and accurate and adopted herein. The last two arguments made by the second injury fund will be considered together. In the consolidated decision in this case the deputy, relying on prior agency interpretation of Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979), assessed the industrial disability which resulted from the second injury. The deputy then gave the second injury fund a credit for the amount of that disability. However, subsequent agency interpretation of the Mich Coal case has held that assessment of industrial disability is appropriate only when the second injury extends to the body as a whole. See Fulton v. Jimmy Dean Meat Company, Appeal Decision, July 23, 1986. Therefore, the correct computation of the liability of second injury fund would be 75 percent of the body as a whole or 375 weeks less 156 1/4 weeks for previous impairment to the right upper extremity and 50 weeks for impairment to the left upper extremity (the deputy's analysis with regard to previous impairment is adopted herein) for a total of 168 3/4 weeks. The findings of fact, conclusions of law and order of the consolidated review-reopening and arbitration decision are modified in accordance with this decision. FINDINGS OF FACT 1. As a result of his work-related injury of February 17, 1983, claimant has a permanent functional impairment of his left upper extremity equal to twenty percent. 2. As the result of an injury in 1975, claimant has permanent functional impairment or loss of use of his right arm equal to 62 1/2 percent. 3. Claimant is 47 years old and has a sixth grade education. 4. Claimant has no special vocational training., 5. All of claimant's past employment involved heavy lifting. 6. Claimant is well motivated and has continued to work in spite of severe pain. 7. It is unlikely claimant will be able to continue employment with defendant employer. 8. Claimant's employability is not presently known. 9. Claimant's rate of compensation is $282.42. COOK V. IOWA MEAT PROCESSING COMPANY Page 4 10. Claimant's present industrial disability is 75 percent of the body as a whole. 11. The compensable value of the impairment to claimant's right arm is 156 1/4 weeks. 12. The compensable value of the impairment to claimant's left arm is 50 weeks. 13. Claimant did not receive an injury on September 19, 1984. 14. Claimant's left arm condition has not changed since the hearing of June 14, 1984. CONCLUSIONS OF LAW Claimant has proven by a preponderance of the evidence that he is entitled to benefits from the second injury fund equal to 168 3/4 weeks. Claimant has failed to prove by a preponderance of the evidence that he received an injury arising out of and in the course of employment on September 19, 1984. Claimant has failed to prove by a preponderance of the evidence that he is entitled to further benefits against the employer as a result of his injury of February 17, 1983. WHEREFORE, the consolidated decision is affirmed and modified. ORDER THEREFORE, it is ordered: That in file number 771086 claimant shall take nothing from these proceedings. That in file number 727578 the Second Injury Fund of Iowa shall pay unto claimant two hundred eighteen and three-fourths (168 3/4) weeks of compensation at his rate of two hundred eighty-two and 42/100 dollars ($282.42) commencing December 20, 1984 and ending March 15, 1988. Accrued payments are to be paid in a lump sum together with interest pursuant to section 85.30, Code of Iowa. That the costs for file number 771086 are taxed to claimant. Costs for file number 727578 are taxed to the second injury fund. Signed and filed this 12th day of May, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER COOK V. IOWA MEAT PROCESSING COMPANY Page 5 Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 Mr. Barry Moranville Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 Ms. Shirley A. Steffe Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 1402.20 - 1402.40 3200 Filed May 12, 1987 ROBERT C. LANDESS BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH R. COOK, Claimant, VS. IOWA MEAT PROCESSING COMPANY, Employer, File Nos. 727578/771086 and A P P E A L ARGONAUT INSURANCE COMPANY, D E C I S I 0 N and CHUBB INSURANCE COMPANY, Insurance Carriers, and SECOND INJURY FUND OF IOWA, Defendants. 1402.20 - 1402.40 - 3200 Claimant failed to establish a new injury as alleged in File Number 771086 or a change of his left arm condition since the hearing of June 14, 1984. However, claimant has established a prior injury affecting a scheduled member and a subsequent compensable injury affecting a scheduled member. Therefore, claimant may recover from the second injury fund. The deputy assessed industrial disability which resulted from the second injury. However, assessment of industrial disability is appropriate only when the second injury extends to the body as a whole. See Fulton v. Jimmy Dean Meat Company, Appeal Decision, July 23, 1986. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN BEEMBLOSSOM, Claimant, File No. 727594 VS. A R B I T R A T I 0 N TINDAL FARM SUPPLY CO., D E C I S I 0 N Employer, and ALLIED INSURANCE, a/k/a AID INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, John Beemblossom, against his employer, Tindal Farm Supply Co., and its insurance carrier, Allied Insurance f/k/a Aid Insurance Co., to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained February 21, 1983. This matter came on for hearing before the undersigned deputy industrial commissioner at the Division of Industrial Services office in Des Moines, Iowa, on December 11, 1986. But for briefs subsequently filed and considered, the record was considered fully submitted at close of hearing. The record in this case consists of the testimony of claimant, of Janet Craven, of Donna Daniel, of Jill Boileau, and of Kathleen Benson-Larson, as well as of joint exhibits 1 through 41. Joint exhibit 1 is a radiological consultation report of May 24, 1983. Joint exhibit 2 is records of reports of John C. VanGilder, M.D. Joint exhibit 3 is records and reports of David Naden, M.D. Joint exhibit 4 is physical therapy records prepared by Pam Hazell. Joint exhibit 5 is records of Muscatine General Hospital for an admission of claimant of June 25, 1984. Joint exhibit 6 is records of E. A. Dykstra, M.D. Joint exhibit 7 is further physical therapy department notes prepared by Pam Hazell. Joint exhibit 8 is records of David M. Paul, M.D. Joint exhibit 9 is a consultation report of July 5, 1983 from University of Iowa Hospitals. Joint exhibit 10 is a report of Walter L. Gerber, M.D.. Joint exhibit 11 is interrogatories submitted to Kathleen Benson. Joint exhibit 12 is the ruling on claimant's application for social security disability benefits. Joint exhibit 13 is a ISCRF discharge entry of December 17, 1985. Joint exhibit 14 BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 2 is records of the State of Iowa Department of Public Instruction Rehabilitation Education and Services Branch. Joint exhibit 15 is records of the Washington County Development Center. Joint exhibit 16 is records and reports of Professional Rehabilitation Management, Inc. Joint exhibit 17 is a radiological consultation report of March 30, 1983. Joint exhibit 18 is the deposition of Dr. VanGilder. Joint exhibit 19 is the deposition of Dr. Naden. Joint exhibit 20 is the deposition of claimant. Joint exhibit 21 is the deposition of Leonard Tindal with attached exhibits. Joint exhibit 22 is claimant's original notice and petition and defendants' answer. Joint exhibit 23 is wage, earnings, and salary information concerning claimant. Joint exhibit 24 is reports and filings of defendants before the Iowa Industrial Commissioner. Joint exhibit 25 is aft admission record and CT scan of January 11, 1983. Joint exhibit 26 is letters between counsel of June 16, 1986 and June 25, 1986, respectively. Joint 27 is a March 16, 1986 Professional Rehabilitation Management, Inc., report. Joint exhibit 28 is a February 27, 1986 Professional Rehabilitation Management, Inc., report. Joint 29 is a medical report of D. C. Shimp, D.O. Joint exhibit 30 is clinical notes of Dr. Shimp. Joint exhibit 31 is a radiology report of September 21, 1984. Joint exhibit 32 is a radiology report of February 24, 1983. Joint exhibit 33 is a radiology report of February 23, 1983. Joint exhibit 34 is a radiology report of February 10, 1977. Joint exhibit 35 is a duplicate of joint exhibit 17. Joint exhibit 36 is a neurology report from the University of Iowa Hospitals of November 14, 1979. Joint exhibit 37 is a Washington County Developmental Center report to Dr. Shimp of March 3, 1986. Joint exhibit 38 is the resume of Kathleen Benson-Larson. Joint exhibit 39 is the deposition of Pam Hazell. Joint exhibit 40 is interrogatories answered by Leonard Tindal. Joint exhibit 41 is a letter from defense BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 3 counsel to claimant's counsel Mullins. ISSUES The issues for resolution are: 1) Whether an employer-employee relationship exists between claimant and the alleged employer; 2) Whether claimant received an injury which arose out of and in the course of his employment; 3) Whether a causal relationship exists between the alleged injury and the claimed disability; 4) Whether claimant is entitled to benefits and the nature and extent of such benefit entitlement, including the question of whether claimant is an odd-lot worker under the Guyton doctrine; 5) Whether claimant is entitled to vocational rehabilitation benefits; and 6) Claimant's rate of weekly compensation. REVIEW OF THE EVIDENCE The following is a summary of the evidence most -relevant to the issues before us. All evidence relevant to those issues was reviewed and considered in the disposition of this matter even if such evidence is not expressly set forth in the following review of the evidence. Fifty-five year old claimant who resides in Washington, Iowa, testified that he began working for Tindal Farm Supply Co. in January 1980 and worked there until he was laid off in November 1982. He reported that he was originally hired by B & T Farm Supply which became Tindal Farm Supply Co. in 1981, and that he felt his employment was continuous as he performed the same duties under each entity. Tindal Farm Supply sold seed corn, chemicals, and farm supplies, and bought and sold grain. The entity also transported livestock and operated livestock and crop farms. Claimant assisted in all of The Farm Supply's operations but principally operated tractor-trailer rigs which The Farm Supply owned. Claimant neither owned nor rented a tractor-trailer in either 1982 or 1983. Claimant used The Farm Supply's tools for any repairs made on tractor-trailers and did such work in The Farm Supply's shop or on Farm Supply property. The Farm Supply either paid any fuel oil or maintenance repair fees or claimant paid those and was reimbursed by The Farm Supply. Prior to his November 1982 layoff, claimant received a weekly paycheck from The farm Supply from which state and federal taxes, social security taxes, and court ordered child support was withheld. Claimant received both vacation pay and health insurance when those benefits were paid to full-time regular Farm Supply employees. He testified that he received no sick leave or disability benefits. Claimant testified that he was not paid for work done on February 21, 1983. Mr. Leonard Tindal, sole shareholder in BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 4 Tindal Farm Supply, testified that claimant was paid a straight $200 for trucking done on that date and that represented claimant's only compensation from Tindal Farm Supply in 1983. Claimant's 1983 W2 form with Tindal Farm Supply reflects that federal and state income and social security tax were withheld from the $200 total compensation. Leonard Tindal testified that claimant was paid on either an hourly or on a per-job basis depending on which would be more fair compensation for the particular job. He testified that truckers for The Farm Supply were generally paid a percentage on the number of loads hauled and on the number of bushel hauled. Individuals and corporations contracting with The Farm Supply for hauling paid The Farm Supply which then paid the trucker. Claimant's daily work hours apparently varied with the job he was performing. Mr. Tindal either directly or through his secretary instructed claimant as to his duties on each day. Mr. Tindal testified that when The Farm Supply sends a trucker out with a Farm Supply truck, either The Farm Supply directs the trucker as to the particular trip or the person contracting for hauling from The Farm Supply directs the trucker as to the particulars of the hauling Job. On February 21, 1983, Rath Packing Company apparently called Leonard Tindal and sought hauling of livestock from its Columbus Junction plant to its Waterloo plant. Tindal then contacted claimant who appeared at Tindal Farm Supply to undertake the haul. Mr. Tindal testified that when claimant got to the Columbus Junction Rath Packing plant, Tindal expected claimant to go wherever Rath Packing told him to but that claimant had the ability to say yes or no. Claimant testified that when he arrived at Tindal Farm Supply on February 21, 1983, he discovered the truck had a blown air bag which could cause difficulties with braking. Claimant stated that he had not wanted to take the truck for that reason, but was told to take the truck and proceed to Rath. Tindal testified that he expected claimant to go directly from Columbus Junction to Waterloo with a load of hogs he was hauling but for stops for dinner or other necessities, but that claimant, as a trucker, was expected to know the appropriate route to take to Waterloo and was not specifically directed as to which route to travel. Tindal testified that it was never discussed whether claimant had the ability to hire other individuals to assist claimant in either loading or unloading or transporting livestock, but that Tindal himself would have assumed no financial obligation for anyone else. A friend of claimant's was traveling with claimant on the injury date without The Farm Supply's express permission. Tindal testified that as of February 21, 1983, The Farm Supply had no long range plans as to how much they "were going to use John" and that he was not sure that that was discussed with claimant before he left. The three tier tractor-trailer rig which claimant was driving on February 21, 1983 overturned enroute to the Waterloo Rath Packing plant as claimant attempted to maneuver a sharp corner. The truck and trailer tipped on the right side onto the road shoulder and claimant was thrown in and out of his seat a few times and was straddled on the gearshift. Claimant was transported by ambulance to the St. Luke's Hospital emergency room where he was treated and released after approximately three BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 5 hours. Claimant reported that immediately following the injury, he had a bruise on his thigh but no other abrasions, that his left leg was numb, and that his neck bothered him. Claimant saw D. C. Shimp, D.O., at the Washington Clinic the following morning. Dr. Shimp apparently examined claimant, ordered x-rays, and prescribed physical therapy consisting of whirlpool, hot packs, and heat. On May 3, 1983, Dr. Shimp indicated that claimant continued to make slow progress with medication and physical therapy, but that he had no other suggestions for therapy. His diagnosis of that date was of myofascitis of the entire spine. An x-ray report of J. Gardner, M.D., of February 24, 1983, reports that on a coned down view of L2, there is a very slight irregularity in the anterior border of the L2 vertebral body which the doctor believes to be a developmental variation rather than a compaction fracture. The doctor opined that he did not expect this defect to be the cause of claimant's rather severe progressive neurological findings. Dr. Gardner interpreted cervical and lumbar spine views of that date overall as showing normal lordotic curvature of the cervical region and the lumbar region with vertebral body heights maintained. He noted a narrowing of of the C5-6 and the C6-7 disc spaces accompanied by osteophyte lipping. In the lumbar region, the disc spaces were normal with vertebral body heights measuring unchanged from 1977. An earlier x-ray report of a Dr. Fedge of February 10, 1977 was reported as essentially negative with vertebral body heights maintained at all levels and no definite loss of disc space, no significant congenital variations, and no misalignment. Dr. Fedge subsequently interpreted lumbar sacral spine x-rays of February 14, 1984 as showing some accentuation of the normal lumbar lordosis and a modest scoliosis. Moderate degenerative change was noted but no evidence of significant congenital variation or recent or previous trauma. He interpreted x-rays of May 21, 1984 as showing a slight narrowing of the 4-5 and 5-1 disc interspaces, but no appreciable misalignment and no definite spondylolysis. Degenerative changes in the posterior articular facets were noted. Dr. Shimp subsequently referred claimant to John C. Van Gilder, M.D., a professor and chair of the division of neurosurgery at the University of Iowa Hospitals and Clinics. Dr. VanGilder initially saw claimant on March 3, 1983 with chief complaints of paraspinal pain in the lower thoracic and lumbar area, left hip pain, and left leg pain. On examination, claimant was moderately tender in the lower parathoracic and lumbar area bilaterally with scoliosis of the lumbar spine, convexity to the right, secondary to muscle spasm. Claimant had moderate tenderness in the left inguinal anterior thigh area and in the left hip. Knee reflexes were +1; ankle reflexes were trace on the left, +1 on the right; both toes were downgoing to plantar stimulation. There was questionable weakness of dorsiflexion of the left foot. Flexion of the back and the lumbar spine was limited to 40 degrees with exacerbation of his scoliosis with stretching of the low back muscles. Straight leg raising was positive at 60 degrees on the left and 70 degrees on the right. No "clear cut" muscle atrophy was present. Claimant had mild BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 6 paracervical tenderness of his cervical spine with good strength in the upper extremities and reflexes +1 and symmetrical. The doctor then believed that claimant's condition represented a contusion on a muscular basis; that claimant had given a clear history of improvement both in the painful [sic] syndrome and weakness in the left foot and felt that claimant should continue with conservative management. Dr. VanGilder again saw claimant on April 5, 1983. Low back examination revealed a normal lordotic curve. Low back flexion remained at approximately 40 degrees with lateral bending of 30 degrees to the right and 35 degrees the to the left. There was no evidence of focal weakness of the lower extremities and sensory examination to vibration and position and pinprick was normal with no evidence of neurological deficit. VanGilder suggested claimant continue with conservative management consisting of physical therapy, analgesics, and antispasmodic medication. VanGilder prescribed Elavil, 50 mg. hour of sleep as well. On examination on May 25, 1983, claimant could flex the low back approximately 70 degrees with lateral bending of 35 degrees right and left. Again, claimant had no evidence of focal weakness of the lower extremities and sensory examination remained normal. Reexamination July 5, 1983 was essentially the same, but for straight leg raising positive at 75 degrees left and 80 right in the supine position. When seen on September 1, 1983, claimant had a normal lordotic curve and could flex his low back to 80 degrees with lateral bending of 35 degrees left to right. Straight leg raising was 90 degrees bilaterally with a mild loss of normal lordotic curve of the lumbar spine. Sensory examination was normal. Dr. VanGilder opined that claimant was gradually demonstrating improvement, quite marked since July and indicated that claimant could return to work in approximately two months. In a handwritten note of September 7, 193, Dr. VanGilder opined again that claimant could return to work as a truck driver on or about November 1983 and that he doubted that any permanent disability would result. He also noted that he could find no evidence of malingering in claimant. Claimant was again seen on November 8, 1983. Claimant then reported that he continued to have low back pain which radiatedinto the left buttock but not down the leg. Parathesis was still present in the left foot but was improved since September. Physical examination was essentially similar other than sensory examination demonstrated spotty hypalgesia over the dorsum of the left foot as well as mesial aspect of the left leg. Increased exercise, particularly hip strengthening exercises, were prescribed. On reexamination on June 14, 1985, claimant's physical condition was essentially unchanged with straight leg raising at 80 degrees bilaterally and no evidence of hypalgesia on sensory examination of the lower extremities. Dr. VanGilder opined that claimant remains with intractable pain somewhat helped with Elavil. He opined that claimant continued to be disabled and would be unable to return to truck driving. VanGilder agreed claimant had approximately 20 percent "medical disability." He doubted claimant's condition would significantly change in the future given his prolonged consistent symptomatology. On August 26, 1985, Dr. VanGilder opined that claimant would be limited to no climbing, no lifting greater than 20 pounds, no prolonged standing greater than one hour, and no BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 7 prolonged sitting associated with jostling, as would be associated with driving a truck, and that claimant is employable only in sedentary work. In his deposition, Dr. VanGilder opined that claimant had reached maximum medical healing as of his June 13, 1985 examination. The doctor further opined that claimant's 20 percent functional impairment and his limitations resulted from the February 1983 injury. Claimant was subsequently examined by David C. Naden, M.D., a board certified orthopedic surgeon. Dr. Naden initially evaluated claimant on December 8, 1983. Examination findings were not significantly different from those of Dr. VanGilder other than that Dr. Naden found lateral bending only to be about 10 to 15 degrees each way with muscle spasm and guarding, and rotation of 5 to 15 degrees each way and maybe 5 to 10 degrees of hyperextension. All motion of the back was found to produce muscle spasm, pain and tightness. Dr. Naden noted that in the prone position claimant had evidence of instability of his spine from L5-Sl to the lower dorsal spine. Dr. Naden opined that claimant's prognosis was guarded and felt that claimant would probably not be able to return to work in his then present condition. Claimant was admitted to the Muscatine General Hospital on January 25, 1984 for myelogram and CT scan. The CT scan revealed mild anterior spur formation of the lumbar spine .With slight narrowing of the L5-Sl disc space. No evidence of a herniated disc was seen. The myelogram was interpreted as BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 8 revealing bulging discs at the L4-5 and the L5-Sl levels. The nerve roots were not cut off or compromised, however. In a February 28, 1984 report, however, Dr. Naden indicated that the AP films of the myelogram did not show really good evidence of a nerve root cutoff at either of the levels, but that he thought that claimant had as bulging disc midline at the two levels which was probably intermittently causing symptomatology down into his lower left extremity. He characterized claimant as having had a preexisting condition that was aggravated by his truck accident and which has caused an intermittent bulging disc in the lower spine. The doctor opined that claimant had a physical impairment of around 17.5 to 20 percent which the doctor would attribute approximately 50 percent to his preexisting conditions and approximately 50 percent to his [February 1983] accident. The doctor then felt that the prognosis was not excellent but that while it may be difficult for claimant to get back to driving, he would probably improve with time and eventually be employable and function in a "halfway decent fashion." Dr. Naden reexamined claimant on January 29, 1985. His physical examination was essentially as presented previously. The doctor's ultimate diagnosis was of degenerative disc disease with some evidence of nerve root encroachment on the left, probably involving both the L-5 and S-1 nerve roots. The doctor opined that surgery would not really profit claimant and that he was getting along adequately albeit not driving a semi. In his deposition, Dr. Naden opined that claimant could lift or carry from 10 to 12 pounds on a repetitive basis, that claimant could do intermittent sweeping, that claimant could either sit or stand approximately 40 to 50 percent of the time during an eight hour work day. Dr. Naden noted that claimant has a mild limp which is probably secondary to his condition and habit. The doctor agreed that he had seen no significant change in claimant's condition during the approximate year between his last two examinations and that as of his last examination no significant medical improvement was likely. The doctor further opined that while 50 percent of claimant's condition could be attributed to degenerative changes, it was the February 1983 incident which caused these preexisting changes to become symptomatic. Dr. Naden further stated that claimant could not bend, stoop, or twist. He subsequently stated that because of the intermittent nature of claimant's symptoms, claimant would need employment which would accommodate those times in which he was having more difficulty and [was unable to perform within the limitations outlined]. Dr. Naden opined that claimant's activities as a laborer and trucker at Tindal Farm were such that could logically lead to degeneration of the spine. Claimant was examined and treated by E. A. Dykstra, M.D., an orthopedic surgeon, initially on September 21, 1984 per referral .of Dr. Shimp Initial physical examination was consistent with those outlined above. EMG's were nondiagnostic. Further physical therapy and epidural steroid injections were prescribed. Claimant reported benefits from both regimes but continued to have symptoms with very minimal change in his condition as of February 18, 1985. Dr. Dykstra then opined that claimant would be unable to return to truck driving and that there would be no long term changes in the original "disability" of 15 to 20 percent, 10 of which was related to the present episode. BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 9 Claimant testified that the insurer subsequently refused to continue authorization for physical therapy. David M. Paul, M.D., examined claimant on February 14, 1984 and November 13, 1984, both pursuant to a disability determination for the Social Security Administration. Following the February examination, Dr. Paul stated that claimant did not appear to require professional care nor significant amounts of pain- relieving medication as he could walk a mile and was fully independent in all areas of daily living but for a problem of pain. He stated that claimant may have "a mechanical backache" or a "chronic pain syndrome," but that there was much in the history and examination findings to suggest symptomatic or conversion overlay. He noted that there appeared to be no examination findings which could confirm significant musculoskeletal system functional limitations. The November examination and report was consistent. In both reports, Dr. Paul commented on claimant's performance on testing. Noting that "according to a Burns' bench study," Burns' bench patients who show inability to perform or who refuse to even try the bench test also show a significant correlation with conversion personality features as defined on MMPI testing. Claimant was seen for evaluation of epididymitis and prostatitis following his February 1983 accident. The conditions were treated and resolved successfully. Claimant testified that he initially had a TENS unit prescribed following his injury; subsequently a back brace which he continues to wear was prescribed. Claimant testified that during the period when he lived by himself following his injury his son mowed lawn and shoveled snow while his daughters did laundry and grocery shopped. He admitted that he occasionally washed dishes himself. Claimant now lives with his children's mother in a one story house which has three front steps and two back steps as well as a garage. Claimant admitted that he moved furniture when the couple moved into their current home following his February 1983 accident. Claimant reported that he has constant low back pain which goes into his left leg with leg numbness at times. Claimant localized his pain as in the left center of the back and approximately three inches above the beltline and radiating into the left .buttock and hip through the mid thigh. He reported that at times the leg is completely numb to the mid thigh and that he then uses a walker. Claimant expressed his belief that when he favors his left leg, the right leg "flares up." Claimant reported that he walks approximately a mile every day but must stop after about two blocks and rest. He indicated that if he sits from one-half to three-quarters of an hour, he is awfully stiff and that he therefore tries to get up every fifteen minutes. Claimant stated that he can drive an automatic car but has not tried to drive a stick shift car as he is unable to push the clutch down in his son's stick shift truck. Claimant testified that prior to his injury he handled ninety to one hundred pound seed corn bags but now he does not even attempt to pick up five pounds of potatoes. He reported that he gives himself rest periods during the day when at home or he simply lies down or sits. Claimant testified that he depends on his BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 10 Elavil to sleeps through the night and that following his injury he began to sleep on a heated waterbed. Claimant river or creek fishes on occasion and hunted mushrooms four times last spring. Claimant has no medical appointments currently scheduled and sees Dr. Shimp only for renewal of his Elavil prescription. He occasionally takes Tylenol during the day. Claimant could not recall having complaints of pain and numbness in both legs in February 1977, but stated he went to a chiropractor at that time and came out of it just like that. A note of Dr. Shimp on February 9, 1977 reflects complaints of pain and numbness in both legs. Claimant reported that he was offered a job last year but was unable to accept it on account of his injury. He reported that he has applied for other jobs through his counsel. Claimant indicated that he talked to Erv Lewis of State Vocational Rehabilitation at the Washington County Development Center and that Mr. Lewis referred him for vocational rehabilitation inhouse evaluation in Des Moines. Claimant subsequently underwent inhouse evaluation in Des Moines and also on the job evaluation at the Washington County Development Center. Claimant testified that he met on two occasions with Jan Craven, a vocational rehabilitation coordinator with Professional Rehabilitation Management. He agreed that she had told him he could call her at any time and that he had not done so. He refused to indicate that those calls could be made collect. Claimant testified that he attempted a work hardening program involving further physical therapy as well as exercise through the YMCA, but that he was unable to do so as he developed poison ivy over an extended portion of his body. He stated that the poison ivy cleared up after a month but, by then the YMCA program was not available. Claimant testified he followed up on any employment references which Ms. Craven gave him. He stated he has lived in Washington, Iowa throughout his life and his family resides there. He indicated that he relies on his family to fulfill his physical needs. He testified he has difficulties with driving substantial distances. Jan Craven testified that she has a masters degree in special education; behavioral disorders, educationally and mentally handicapped and behavior disordered, as well as a masters degree in vocational counseling. Craven met with claimant for initial assessment on October 3, 1985. Following the initial job readiness assessment, claimant's case was put on hold until January 21, 1986 pending completion of the State Vocational Rehabilitation evaluation. Ms. Craven testified that upon reinstitution of services, a work hardening program consisting of physical therapy at the Washington Community Hospital and exercise at the Washington YMCA was instituted to prepare claimant for functioning throughout an eight hour work day. She reported that the YMCA was contacted on January 29, 1986. A letter regarding the program sent to claimant and his counsel on February 4, 1986. Craven testified that claimant never entered into the work hardening program but that she had been informed that claimant's brother had heart surgery and that may have been a reason why claimant did not attend classes. She subsequently testified that she did have some indication BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 11 concerning the poison ivy episode. She noted that the work hardening program was available to claimant from January through May 1986 even though he never participated. In her deposition, Pam Hazell, licensed physical therapist, stated she advised Ms. Craven that Ms. Hazell would initiate a program with claimant at,the YMCA. Hazell testified claimant once attempted contact with her as to a time for them to work together, but that for whatever reason contact was not made between her and claimant. Ms. Craven testified that she authorized a labor market survey which identified positions in both the Iowa City and Muscatine area which claimant could possibly fill. These included small engine repair, rod and lure tying, gun repair, and small parts assembly. She agreed that some of the positions offered on-the-job training but noted that many were small family-operated firms. She stated that an August 1, 1986, approximately thirty-two openings in small assembly and repair and mechanics in the Iowa City to Muscatine area were identified, but stated only one or two were actually accepting applications for employment and that she had identified only one possible job opening. Craven agreed that her August 6, 1986 report states there does not appear to be an abundance of jobs within claimant's capacities within claimant's geographic area and that she had been unable to find a single employer who had a job within claimant's restrictions. She opined, however, that claimant's employability was a function of his locale and if claimant lived near or was mobile to Iowa City, claimant was employable. She opined that claimant had expressed an interest in employment in Iowa City or Muscatine, or otherwise within thirty minutes of his home if he were able to travel to those locales. Ms. Craven testified that she had advised claimant to contact and speak with the job training partnership act coordinator in the Washington area and that claimant had met with that individual on one occasion. Ms. Craven indicated that claimant did not wish to relocate and characterized the Washington, Iowa economic picture as very poor at the time of the labor market survey. She characterized this as a "very significant factor" in job availability. Ms. Craven's written reports concerning her involvement in claimant's case are consistent with her oral testimony. Donna Daniel testified that she is a vocational rehabilitation counselor with the State Vocational Rehabilitation Program and has been such since 1976. Ms. Daniel has a masters degree in vocational rehabilitation counseling. She has been assigned to the state's evaluation facility in Des Moines since 1984 and was claimant's rehabilitation counselor during his stay at the evaluation facility in November and December 1985. She reported that while claimant's stay at the evaluation facility was interrupted on account of the Thanksgiving holiday and also on account of a personal tragedy in claimant's life, claimant completed his assigned evaluation program and was ultimately discharged on December 17, 1985. Ms. Daniel indicated that claimant was willing to cooperate in the evaluation program and desired to do his best in all that he was assigned to, but that while claimant had some skills, the most significant concern was whether claimant could physically tolerate performing any skills on a full-time competitive level. Ms. Daniel characterized BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 12 claimant as best at hands on activities in the industrial skills area, particularly small parts assembly, electronics portion of such tasks. She reported that on-the-job evaluation was recommended in order to observe whether claimant could handle such work physically. She agreed that actual work hardening was not a specific recommendation at the facility. Records concerning claimant's stay and performance at the evaluation center were consistent with Ms. Daniel's oral testimony. Ms. Daniel's January 3, 1986 report noted that vocationally, claimant received selective recommendations to pursue employment as a production assembler, small parts assembler, and related assembly portions of an electronics worker job. She noted that his hands on performance met expectations for those positions but his physical tolerance for full-time employment and activities that might be related and necessary to these positions is questionable. Ms. Daniel characterized claimant as a very cooperative, mature, and motivated individual. A building maintenance final report of Dorothy Tarr indicated that no vocational recommendations were made in that area since in the reporter's opinion, work requiring comparable physical movements-walking, bending, twisting, pushing, pulling, etc., would be contraindicated. It was suggested that possibly inspection-type tasks or dispatcher work could be considered and this would not be so physically demanding and would provide claimant an opportunity to alternate his physical position between sitting, standing, and walking. In a work awareness final report, claimant was noted to be better able to follow BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 13 verbal with demonstrated instructions than he was able to follow written or verbal [instructions] only. Academic-related tests were very difficult for claimant and he needed much encouragement and support to carry them out. The psychological evaluation report indicated that the WAIS-R was administered claimant and the results suggested intellectual functioning within the average range with claimant's nonverbal skills surpassing his verbal skills [WAIS verbal IQ 89, performance IQ 98, full scale IQ 92]. Claimant's performance on reading tests was at the 5.8 grade equivalent; math test placed at the seventh grade [23rd percentile]. The reporter stated that performances at those levels were not supportive of further academic training. Performances on the DAT mechanical reasoning and space relation tests were both in the inferior range, and did not reflect claimant's prior experience in mechanical work. Jill Boileau, director of client services at the Washington County Developmental Center, testified that the center is a sheltered work activity center and work adjustment center that serves vocationally, physically, mentally and emotionally handicapped individuals. She reported that claimant attended the center through the work adjustment program upon referral of his regional vocational rehabilitation counselor. Ms. Boileau indicated that claimant was in the development center program for ten working days and that following that time it was concluded that claimant was not ready for competitive employment and that although motivated, it was doubtful that claimant could competitively be employed. Ms. Boileau indicated that Dr. Shimp reported at her request that claimant could do hand sorting; hand pickups, which would involve lifting bags and placing items into a truck; read envelopes, which would involve sitting for long periods; fiber rolls, which would involve sitting for long periods; janitorial, which would involve some lifting; tempo paper folding, which would involve sitting for long periods; and bending; running the drill press; table saw; band saws; and participating in activities. Dr. Shimp indicated that claimant could not do tempo delivery which involves walking for long periods. The witness indicated that claimant's program at the center was based on Dr. Shimp's checkoff report as well as on the limitations Dr. VanGilder had suggested. Kathleen Benson-Larson, director of the Iowa Methodist Medical Center Low Back Institute, and formerly a vocational consultant and branch manager at Crawford Health and Rehabilitation Services, testified. Ms. Benson-Larson has testified before the agency on other occasions and her qualifications are well known to the undersigned as well as outlined in exhibit 38. They will not be further set forth here. Ms. Benson-Larson indicated that she first became acquainted with claimant when, in her capacity as a certified social security vocational expert, she was asked to review claimant's file concerning his application for social security disability benefits and answer interrogatories prepounded. She reviewed all matters in that file as of December 1985 and was present for all testimony on the day of this hearing. Ms. Benson-Larson opined that claimant could not function physically in competitive sustained employment. She indicated that claimant could function only in casual or intermittent employment or in selective placement. Benson-Larson opined that claimant is not capable of BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 14 dependably and continually selling his services in the competitive labor market. She further opined that the work hardening program which Ms. Craven had attempted for claimant was an appropriate approach in that the physical tolerance problem was the most significant hurdle to claimant's employability in that he has innate abil- ities and interests, as well as skills which could be utilized to return him to the job market if his physical abilities would so permit. Ms. Benson-Larson's answers to interrogatories propounded in the social security administration hearing as well as the ultimate decision in that hearing were reviewed and considered in the disposition of this matter. Evidence concerning claimant's earnings with the employer was reviewed and considered. APPLICABLE LAW AND ANALYSIS We first consider the employer-employee relationship question. Iowa Code sections 85.61(l) provides in part: 2. "Worker" or "employee" means a person who has entered into employment of, or works under contract of service, express or implied, or apprenticeship, for an employer .... The Iowa Supreme Court stated in Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1213, 146 N.W.2d 261 (1967): This court has consistently held it is a claimant's duty to prove by a preponderance of the evidence he or his decedent was a workman or employee within the meaning of the law.... And, if a compensation claimant establishes a prima facie case the burden is then upon defendant to go forward with the evidence and overcome or rebut the case made by claimant. He must also establish by a preponderance of the evidence any pleaded affirmative defense or bar to compensation. (Citations omitted.) Given the above, the court set forth its latest standard for determining an employer-employee relationship in Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981). The court stated in part: I. The employer-employee relationship. As defined in section 85.61(2), The Code, an "employee" is a "person who has entered into the employment of, or works under contract of service...for an employer." Factors to be considered in determining whether this relationship exists are: (1) the right of selection, or to employ at will, (2) responsibility for payment of wages by the employer, (3) the right to discharge or terminate the relationship, (4) the right to control the work, and (5) identity of the employer as the authority in charge of the work or for whose benefit it is performed. The overriding issue is the intention of the parties. BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 15 McClure v. Union, et al., Counties, 188 N.W.2d 285 (Iowa 1971).(Emphasis added). Workers' compensation law is for the benefit of workers and should be liberally construed. Irish v. McCreary Saw Mill, 175 N.W.2d 364 (Iowa 1970). Workers' Compensation Act is remedial in nature and should be given a liberal construction to accomplish the purpose intended. Snook v. Herrmann, 161 N.W.2d 185 (Iowa 1968). In cases of doubt as to workers' compensation cases, the court must construe statutes liberally with view to extending aid to every employee who can fairly be brought within them. Usgaard v. Silver Crest Gay Club, 127 N.W.2d 636 (Iowa 1964). When the above factors are applied to claimant's case, it is evident claimant was an employee of Tindal Farm Supply when injured. The Farm Supply had the right of selection and employed claimant at will. Likewise, The Farm Supply had the right to discharge claimant. Indeed, The Farm Supply had discharged claimant in November 1982 and voluntarily called him back on his injury date. The Farm Supply was responsible for payment of wages to claimant. The parties considered those payments made as wages and not as payment for services an independent contractor rendered. Tindal Farm Supply withheld state, federal and FICA taxes. Tindal Farm Supply paid claimant vacation pay and any other benefits its full-time employees were entitled to all times during which claimant was employed. Tindal Farm Supply had the right to control the work. Leonard Tindal, directly or indirectly, assigned claimant his daily work duties. While Tindal testified claimant could say 'yes" or "no," claimant's testimony as regards driving the tractor-trailer rig with its blown air bag demonstrates that claimant believed he would jeopardize his job were he to refuse to perform directed duties. Claimant did have some control over how he performed his work in that he could determine the routes he followed while driving and apparently was not prohibited from permitting nonemployees to ride in the rig with him. Claimant had no actual control over the nature of his assigned work, however; that rested with The Farm Supply. Whatever control claimant exercised was that which with one would expect a skilled employee to be trusted; namely, that related to carrying out his assigned duties with minimal direction or instruction. Similarly, Tindal Farm Supply was identified as the authority in charge of the work. Rath Packing contacted The Farm Supply and not claimant for trucking services. Nothing in this record suggests Rath or any other entity or individual believed claimant had actual authority over the work performed or that claimant performed his services for other than The Farm Supply's benefit. That the immediate benefit may -have been to Rath is not relevant. Rath contracted with The Farm Supply for hauling services and paid The Farm Supply for those services. Clearly, the ultimate benefactor from claimant's labor was The Farm Supply. The parties stipulated as to the arising out of and in the course of issue provided the employer-employee relationship was established. We need not, therefore, discuss that issue. We consider whether claimant has established a causal relationship BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 16 between his work injury and his claimed disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 21, 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. Dr. VanGilder opined claimant's current low back and lower extremity difficulties resulted from his February 1, 1983 work accident. Dr. Naden believes that claimant's condition results from the work accident and from degenerative changes in claimant's spine. Dr. Naden believes both that claimant's prior activities for The Farm Supply were of a type which could "logically lead" to degenerative spinal changes and that claimant's work incident caused those preexisting changes to become symptomatic. Claimant's only known prior incident of low back and leg problems occurred in 1977. That difficulty, whatever its nature, apparently resolved and claimant had been able to work as a trucker and farm laborer until his work injury. Only then did his condition become so manifest that he has been unable to work or live as he had prior to that incident. Claimant's 1983 work injury materially aggravated any prior degenerative changes such that the requisite causal relationship between the work injury and the disability is found. BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 17 We now reach the fighting issues, namely, the nature and extent of claimant's benefit entitlement and whether claimant is an odd-lot worker under the Guyton holding. Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 18 the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. The burden of persuasion on the issue of industrial disability always remains with the worker. However, when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Id. Even under the odd-lot doctrine, the trier of fact is free to determine weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Id. In Guyton, the court also stated the following regarding determination of a worker's industrial loss. The question is more than the one posed by the commissioner concerning what the evidence shows Guyton "can or cannot do." The question is the extent to which the injury reduced Guyton's earning capacity. BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 19 This inquiry cannot be answered merely by exploring the limitations on his ability to perform physical activity associated with employment. It requires consideration of all the factors that bear on his actual employability. See New Orleans (Gulfwide) Stevadores v. Turner, 661 F.2d 1031, 1042 (5th Cir.1981) (are there jobs in the community that the worker can do for which he could realistically compete?) Id. Claimant has not made a prima facie showing that he is an odd-lot worker. Under the odd-lot doctrine, the injury must be the factor which makes the worker incapable of obtaining employment in any well known branch of the labor market. In claimant's case, we cannot ascertain whether claimant's current nonemployability arises from his injury as such or from claimant's nonparticipation in a work hardening program. All vocational experts agreed that claimant's primary problem is his physical condition and lack of physical tolerance. Both Ms. Craven and Ms. Benson-Larson testified that work hardening was the appropriate and necessary approach to rehabilitate claimant for productive employment. Defendants, through Ms. Craven's efforts, attempted to establish a work hardening program for claimant. At least portions of that program were available to claimant from February through early Summer 1986. Claimant who by that time certainly had some understanding that physical conditioning was essential to his vocational wellbeing never participated in the program. He did not even visit the YMCA and use his employer-provided membership. While claimant asserts and we would like to believe that claimant's non-participation resulted from a series of unfortunate mishaps in claimant's life, we conclude the record does not support that conclusion. Claimant made little effort to communicate to either defendants or his own counsel that he was unavailable for the program. Claimant did not inform his own counsel of his alleged problems with participation until June 10, 1986. While claimant did not have a telephone during part of the time in question, Mr. Mullins, his co-counsel, has his office in the same small community in which claimant resides. One suspects that if claimant had considered preservation of and participation in the work hardening program a priority, either he personally or one of the family members on whom he relies for assistance would have contacted Mr. Mullins in April or May 1986. Mr. Mullins or his co-counsel then could have immediately contacted defendants and, thereby, demonstrated that claimant had a good faith desire to participate in the work hardening efforts. Likewise, neither claimant nor any family member on his behalf directly attempted to call Ms. Craven collect or communicate to defendants by letter that claimant then could not participate in the work hardening efforts. While we agree claimant has academic limitations, he was able to function with enough common sense and social appropriateness in his adult life to remain employed until his injury. Hence, we do not feel that his intellectual abilities and level of social sophistication precluded his realizing the importance of communicating his inability to participate in the work hardening program in a timely fashion. Further, claimant's, at best, languid approach to the work hardening efforts offered him raises serious questions as to his motivation. As the Guyton court pointed out, the question of the extent to which the injury reduced the claimant's earning capacity requires BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 20 consideration of all factors that bear an actual employability. Motivation is such a factor. We agree that claimant participated in the state vocational rehabilitation program and the opportunity center program. Both of those programs assessed claimant's ability to perform employment tasks in his current physical state. Neither was designed to assist claimant in achieving a higher level of physical functioning. Only the work hardening program was designed to achieve that. Work hardening was essential to claimant's employability in that claimant had transferable skills. We also agreed that claimant at one time contacted Pam Hazell regarding initiating work hardening and that Ms. Hazell was uncertain why further contact did not occur. We believe, however, that claimant had a responsibility to make further efforts at contact with Ms. Hazell on his own behalf. His failure to do so or to offer a credible reason why he did not do so over an extended period also raises serious questions as to his motivation. Claimant's failure to seriously attempt to either participate in or preserve the possibility of participating in such a program counterbalances any finding of motivation to work through his participation in less essential vocational efforts. Claimant has not shown that his failure to find any employment in a well-known branch of the labor market results from his injury and not from his own lack of motivation. Claimant is not an odd-lot worker. Other evidence does show that claimant has sustained a substantial loss of earning capacity, however. Claimant is an older worker. He lives in a smaller, economically depressed, community where employment opportunities are limited. His desire not to relocate is reasonable and cannot be used as a negative factor in assessing his current industrial disability. He is a high school graduate but is academically limited and apparently lacks the abstract thinking skills required for more sophisticated academic retraining. His prior experience is largely as a truck driver and manual labor. His residual physical problems from his injury are likely such that he could not return to like jobs even were he to complete the work hardening offered. On the other hand, he has transferable skills identified through state vocational rehabilitation and with work hardening might be able to find employment within his permanent limitations. As discussed above, claimant's motivation to work is, at best, marginal. All factors support an overall. loss of earning capacity of 75 percent. A significant change in any of the factors bearing an employability would, of course, make this award ripe for review-reopening. We reject both claimant's and defendants' position as to the running of healing period benefits. Evaluation and care by Dr. Naden initially was intended to discover whether claimant's condition could be improved with further treatment. Hence, the initial examination time could not constitute the end of the healing period. Reexamination on January 29, 1985 demonstrated claimant's condition had not changed significantly in the subsequent year and raised a fair assumption that significant further improvement could not reasonably be anticipated. That assumption was supported by Dr. DykstraOs February 18, 1985 conclusion that claimant had very minimal changes in his condition even with physical therapy and steroid injections and BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 21 Dr. VanGilder's June 14, 1985 opinion that claimant's condition would not change significantly in the future. Claimant's healing period is found to run through January 29, 1985. Claimant seeks vocational rehabilitation benefits. The reason he seeks them is unclear from the record. Section 85.70 entitles claimant to such benefits during that time in which he was actively participating in a vocational rehabilitation program recognized by the state board for vocational education. If either the Washington City Opportunity Center Program or the State Vocational Rehabilitation on site evaluation program qualifies under the section, claimant is entitled to vocational rehabilitation benefits for times in which he was in attendance and defendants are advised to pay claimant any such entitlement. The rate issue remains. In his brief, claimant states: Since John had not returned to work for the full thirteen-week period of time before his injury, it would appear that Iowa Code Section 85.36 (7) is applicable and as Defendants earlier admitted, the gross weekly wage for purposes of determining John's rate of compensation is $263.00. The appropriate rate is, therefore, no less than $164.44 per week. Claimant appears to be waiving all other rate issues raised but for that of claimant's entitlement to an exemption for his son. Claimant's son was 18 at the time of the injury. Claimant's son apparently was still attending high school, however, and claimant apparently still was required to and was paying child support for him. We conclude the claimant could properly have claimed his son as an exemption. Therefore, the appropriate rate is $164.44. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Tindal Farm Supply, d/b/a B & T Farm Supply, originally hired claimant in January 1980 and laid him off in November 1982. Tindal Farm Supply called claimant back to work on February 21, 1983. Tindal Farm Supply had the right of employee selection, employed claimant at will and had exercised the right to discharge claimant. Tindal Farm Supply was responsible for paying claimant wages and withheld federal and state income taxes, FICA taxes, and child support from claimant's wages. Tindal Farm Supply paid claimant vacation pay and any other benefits to which its full-time employees were then entitled. Tindal Farm Supply's chief executive officer assigned claimant his daily work activities and claimant's discretion was largely limited to determining how to reasonably perform the job BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 22 assigned. Tindal Farm Supply had the right to control the work performed. Rath Packing Company contacted Tindal Farm Supply for trucking services. Tindal Farm Supply either directly purchased fuel and other supplies for the tractor-trailer or reimbursed claimant for purchase of those items. Any repairs on the tractor-trailer were made on Tindal Farm Supply property with Farm Supply tools and supplies. Tindal Farm Supply was identified as the authority in charge of the work and for whose benefit the work was performed. Claimant was an employee of Tindal Farm Supply on February 21, 1983. Claimant sustained an injury which arose out of and in the course of his employment on February 21, 1983 when the tractor-trailer he was driving overturned. Claimant was thrown about in the truck cabin. Claimant initially was treated for a bruise on his thigh, left leg "numbness" and neck pains. BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 23 Claimant has no evidence of neurologic deficit but has continuing leg "numbness,O low back pain radiating into his left buttock, and weakness and fatigue. Claimant did not generally have similar complaints or limitations prior to his injury. Claimant is limited from lifting greater than 20 pounds, from climbing, prolonged standing, and from prolonged sitting. Claimant's limitations and complaints result from his work injury. Claimant injured his testicle in his work accident. That injury has since resolved. Significant improvement in claimant's condition could not reasonably be anticipated after January 29, 1985. Claimant is 55 years old; a high school graduate and has limited academic ability. Claimant's work experience is primarily as a manual laborer and truck driver. Claimant cannot return to either occupation. Claimant has transferable skills which might result in gainful employment but claimant's present physical condition prevents his attempting employment utilizing those skills. Work hardening is advisable for claimant. Defendants attempted a work hardening program for claimant. Claimant was not well motivated to either participate in or preserve the right to participate in that program. Claimant has not made prima facie showing that his inability to obtain employment in any well-known branch of the labor market results from his work injury and not from his own lack of motivation. Claimant is not an odd-lot worker. Claimant's local labor market is limited and economically depressed. Claimant has a reasonable desire to remain near his family and not relocate. Claimant has a moderately severe functional impairment. Claimant has sustained a loss of earning capacity of 75 percent. Claimant had been in the employ of the employer for less than thirteen calendar weeks immediately preceding the injury. Claimant's gross weekly wage for rate commutation purposes is $263.00, the wage amount paid a similar Tindal Farm Supply BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 24 employee. Claimant's son was over 18 but still attending high school on the injury date. Claimant still was obligated to support his son and was paying child support for the son on claimant's injury date. Claimant was entitled to claim his son as a federal income tax exemption on claimant's injury date. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has established that claimant was an employee of the employer, Tindal Farm Supply, on February 21, 1983. Claimant has established his February 21, 1983 injury arose out of and in the course of his employment. Claimant has established that his February 21, 1983 injury is the cause of the disability on which he now bases his claim. Claimant is entitled to healing period benefits from his injury date through January 29, 1985. Defendants are entitled to credit for benefits previously paid. Claimant is entitled to permanent partial disability benefits resulting from his February 21, 1983 injury of seventy-five percent (75%). Claimant's rate of weekly compensation is one hundred sixty-four and 44/100 dollars ($164.44). ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for three hundred seventy-five (375) weeks at a rate of one hundred sixty-four and 44/100 dollars ($164.44) with those payments to commence on January 30, 1985. Defendants pay claimant healing period benefits from his injury date through January 29, 1985 at a rate of one hundred sixty-four and 44/100 dollars ($164.44). Defendants receive credit for benefits previously paid. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30 Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. Defendants file claim activity reports as required by the BEEMBLOSSOM V. TINDAL FARM SUPPLY, CO. Page 25 agency. Signed and filed this 29th day of January, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael R. Mullins Attorney at Law P.O. Box 88 112 South Avenue B Washington, Iowa 52353 Ms. Lorraine J. May Attorney at Law 404 Equitable Bldg. Des Moines, Iowa 50309 Mr. James Q. Blomgren Attorney at Law P.O. Box 732 110 North Market Street Oskaloosa, Iowa 52577 1108; 1402.10; 1803; 1802; 2001; 3001; 3002; 4100 Filed 1-29-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN BEEMBLOSSOM, Claimant, File No. 727594 VS. A R B I T R A T I 0 N TINDAL FARM SUPPLY CO., D E C I S I 0 N Employer, and ALLIED INSURANCE, a/k/a AID INSURANCE, Insurance Carrier, Defendants. 1108; 1402.10; 1803; 1802; 2001; 3001; 3002; 4100 Employer-employee relationship established where formerly full-time trucker/general manual laborer received an injury which arose out of and in the course of his employment while driving a truck for employer on call back after three month layoff. Claimant's present back condition causally related to truck accident. Seventy-five percent industrial disability awarded 55 year old male claimant with work history in trucking and manual labor and transferable skills which current physical condition precluded his using. Claimant had avoided participation in work hardening program defendants initiated even though two vocational experts testified work hardening was key to his potential employability. Held claimant not an odd-lot worker in that claimant had made a prima facie showing his inability to find employment resulted from his injury and not from his own lack of motivation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PATRICK H. MALLOY, : : Claimant, : : vs. : : File No. 727883 FLOYD VALLEY PACKING COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : ARGONAUT INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy January 23, 1991 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Even if claimant's garden incident of back spasm and pain does not constitute an intervening cause of his present back condition, claimant's medical evidence fails to establish a causal connection between his work injury and his present condition. Most of claimant's physicians did not attribute his back condition to his work injury, including physicians who were unaware of the garden incident. In addition, claimant's fibrositis was cited as a possible cause of his condition. Claimant bears the burden of proof. Claimant has failed to carry his burden to show that his present condition was caused by his work injury. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Raymond E. Pogge Mr. Christopher J. Tinley Attorneys at Law P.O. Box 1502 Council Bluffs, Iowa 51503 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Ste 16 Des Moines, Iowa 50312 9999 Filed July 30, 1991 Clair R. Cramer WRM before the iowa industrial commissioner ____________________________________________________________ : PATRICK H. MALLOY, : : Claimant, : : vs. : : File No. 727883 FLOYD VALLEY PACKING COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : ARGONAUT INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed January 23, 1991 with short additional analysis. 51106; 51401; 51402.20; 51402.30; 51402.40; 51801; 51803; 51402.60; 52501; 52700; 2906 Filed January 23, 1991 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PATRICK H. MALLOY, Claimani, vs. File No. 727883 FLOYD VALLEY PACKING COMPANY, A R B I T R A T I O N Employer, D E C I 5 I 0 N and ARGONAUT INSRANCE COMPANY, Insurance Carrier, Defendants. 51106; 51401; 51402.20; 51402.30 Claimant proved a right thigh and back injury. 51402.40 51801 Claimant awarded temporary total disability for the same few weeks tltat defendants had paid him prior to hearing. 51402.40 51803 Claimant did not prove the injury was the cause of permanent disability-. 51402.60 52501 52700 Claimant did not prove several succeeding doctors retained after his initial treatment by company authorized doctors was caused by this injury and he was denied those expenses. 2906 Claimant's previous attorney failed to serve a favorable medical report pursuant to rule 343 IAC 4.17 some two and onehalf years prior to hearing. Current attorney did serve it 15 days prior to hearing. Defendants objected to the report. The objection was overruled and the report was admitted because MfiLLOY V. FLOYD VALLEY PACKING CO. Page 2 defendants' attorney did not express any desire to depose this doctor after the report was served on him, he did not ask for a continuance to depose this doctor, but did depose two of his own doctors witi'out any objection, but with the cooperation of claimant's attorney within the 15 day period prior to hearing. It was determined that to exclude this report would be too harsh a sanction under the circumstances. Defendants' objection to the admission of claimant's medical bills for the reason that the charges were not reasonable, were not for reasonable treatment, were not causally connected to this injury and were not authorized was overruled. Defendants' objection goes to the weight of the evidence and not the admissibility. It would not be possible to tell if the charges were reasonable, were for reasonable treatment and causally connected without examining the bills. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PATRICK I-I. MALLOY, ~ ~ LEo Claimant, Jh1l~3 l~l vs. File No. 72 88~3JSTRl.Al sERVloeFjC FLOYD VALLEY PACKING COMPANY, A R B I T R A T I O N Employer, D E C I 5 I 0 N and ARGONAUT INS[JRANCE COMPANY, Insuran<e Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Patrick H. Malloy, claimant, against Floyd Valley Packing Company, employer and Argonaut Insurance Company, insurance carrier, defendants for benefits as the result of an alleged injury which occurred on February 22, 1983. A hearing was held in Sioux City, Iowa, on January l9, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by Christopher J. Tinley and Raymond E. Pogge. Defendants were represented by Harry W. Dahl. The evidence consists of the testimony of Patrick H. Malloy, claimant; Joyce Malloy-Bressler, claimant's mother; Rhonda McNeeley, claimant's witness; and, Ervin Sencenbaugh, supervisor. At the hearing, the attorneys referred to joint exhibits 1 through 18 (transcript pages 18, 40, 196 and 197). Later in the hearing, exhibits 19 through 21 were added to the exhibits. The deputy noted that the exhibits had not been prepared pursuant to paragraph nine of the hearing assignment order and in particular, the exhibits did not have page numbers so they could be identified in the decision (tr. p. 25). Subsequently, Mr. Tinley remarked the exhibits and the case is determined on the following remarked exhibits--joint exhibits 1 through 5, 8 through 10, 15, 17 through 21 and defendants' exhibits 1 through 3. The exhibits contain the deposition of Paul From, M.D., and Alfredo Soccaras, M.D., but these exhibits do not bear any identification number or letter. No exhibit l.ist was submitted. Defendants objected to exhibit 8, pages 1 through 4 and exhibit 18, as being considered joint exhibits because defendants objected to those exhibits. It was agreed that they would be considered as claimant's exhibits even though marked as joint exhibits. At the time of hearing, claimant's attorneys presented claimant's contentions of disputed issues. Defendants' MALLOY V. FLOYD VALLEY PACKING CO. Page 2 attorney presented defendants' description of disputes. Both attorneys submitted excellent posthearing briefs. Defendants ordered a copy of the transcript and agreed to supply a copy for the industrial commissioner's file (tr. pp. 46 & 47). PRELIMINARY MATTERS The original notice and petition requested a reviewreopening proceeding. The deputy inquired if there had been a prior award or settlement agreement. Claimant then moved to amend the petition to request an arbitration decision. Defendants did not object to the motion. The motion was granted and the petition is amended to request a proceeding in arbitration. Iowa Code section 86.14. Defendants moved to close the record to any testimony from claimant concerning his employment history, earnings history or claimant's income for the reason that claimant had not complied with the order of Deputy Industrial Helenjean Walleser, dated January 13, 1989, to supply income tax returns to defendants prior to the hearing. Claimant replied that he had furnished individual income tax returns to defendants just a few days prior to hearing. Defendants responded that claimant had not supplied partnership income tax returns for the period in question. Claimant countered that partnership returns had not been requested. Uefendants agreed that they had not specified partnership income tax returns, but expected to receive all income tax returns of any kind. CIaima"t's income tax preparer was contacted during the hearing and claimant obtained the partnersriip income tax returns requested by defendants during the hearing. These were marked joint exhibits 19, 20 and 21. Defendants motion then became moot and defendants further withdrew the motion that the record be foreclosed to claimant's testimony concerning his employment history, earnings history and other income testimony (tr. pp. 3-14; 59 and ~n) Claimant initially objected to defendants' exhibit 2, which are excepts rrom the treatise entitled Manual for Orthopedic Surqeons in Evaluatinq Permanent Physical Impairment which defendants counsel had used to interrogate Chester H. Waters, III, M.D., at the time of his deposition. Defendants' counsel stated that he used the entire book to cross-examine Dr. Waters, but needed to keep the book and had prepared these copies of the pages used to cross-examine Dr. Waters as a deposition exhib.it. After some discussion, claimant's counsel withdrew his objection to defendants' exhibit 2 and it was admitted into evidence (tr. pp. 35-40). Defendants objected to joM~LLOY V. FLOYD VALLEY PACKING CO. Page 3 responded tlt~t this report was served on January 4, 1989, which was the fifteenth day prior to hearing; and therefore, it was timely served pursuant to paragraph six of the hearing assignment order. Ciaimant demonstrated a notice of service of January 4, 1989, and defendants withdrew their objection to the exhibit on that ground. Defendants then objected to exhibit 8, pages I through 4, for the reason that the document was not served on them within ten days after receipt of the document by claimant as required by rule 343 IAC 4.17. The date of Dr. Hagen's report is March 20, 1987. Defendants' counsel argued that the document was almost two years old and that he had never seen it until it was served on January 4, 1989. Claimant's counsel asserted that they served it as soon as they received it from claimant's previous counsel, but they were unable to say when they received it and could not demonstrate that it was served shortly after it was received from the previous attorney. Rule 4.17 states, "A party failing to comply with the provisions of this rule shall, if the failure is prejudicial to an opposing party, be subject to the provisions of 4.35(86)." Oefendants' attorney claimed prejudice because the report addresses causal connection and the nature and extent of disability, which are ultimate issues to be decided in this case. Claimant's counsel could not demonstrate that the document was timely served as required by rule 4.17. Claimant's counsel acknowledged in their brief that the document had not been served upon defendants by claimant's prior counsel in 1987 (claimant's brief page 7). Claimant's counsel asserted that defendants' counsel had known for several months that claimant had seen Dr. Hagen and to exclude the exhibit at this time would be highly prejudicial to claimant. Ruling was reserved on defendants' motion until the time of the decision. Rule 341 lAC 4.36 empowers a deputy 'to close the record to further activity or evidence or to dismiss the action. It is now determined and ruled that defendants' objection to exhibit 8, pages I through 4 is overruled. The report was served on defendants on January 4, 1989. Defendants made no request to depose Dr. Hagen, nor did they ask for a continuance in order to do so. At the same time, defendants, with the cooperation of claimant's counsel, deposed Paul From, M.D. and Alfredo Socarras, M.D., both on January Il, 1989, but expressed no desire to depose Dr. Hagen. Under these circumstances, it would be too harsh of a sanction to exclude the exhibit from evidence. Therefore, exhibit 8 pages 1 through 4, the medical report of Dr. Hagen, dated March 20, 1987, is admitted into evidence at this time (tr. pp. 22-34). Defendants objected to exhibit 18, certain medical bills, for the reasons that the fees charged were not reasonable, the treatment was not reasonable and necessary treatment, the treatment was not causally connected to this injury and the treatment was not authorized by defendants (tr. pp. 18-20, 34, 41, 48). Ruling was reserved until the time of decision. It is MALLOY V. FLOYD VALLEY PACKING CO. page 4 now ruled th't defendants' objection to exhibit 18 is overruled. Defendants' objection goes to the weight of the evidence and not the admissibility of it. Exhibit IS is admitted into evidence at this time. In order to determine the reasonableness of the charges, the reasonableness of the treatment and their casual connection to this injury, it is necessary to examine the bills themselves. At the close of the hearing, the parties agreed to file briefs by April 1, 1989 (tr. pp. 197-202). See also posthearing order. Claimant's counsel requested an extension of time until May 1, 1989, which was granted. Defendants' brief was timely filed on May 1, 1989. Claimant's brief was not received until August 7, 1990. Defendants then filed a motion to strike brief on behalf of claimant for the reason that it was more than 15 months late. Defendants' motion was not resisted. The deputy ruled on ~eptember 11, 1990, that he would rule on defendants' motion at the time of decision. When briefs were requested, the deputy stated that it was to give each party a final opportunity to summarize their best evidence and apply it to their respective proposition on each issue in this case so that they could be considered at the time of the decision (tr. p. 199). Therefore, even though defendants' brief was timely and claimant's brief was untimely, the evidence was all in and the briefs were not intended to be responsive; and therefore, no prejudice to defendants results from considering claimant's brief at this tame. Therefore, defendants' motion to strike claimant's brief is overruled. Claimant's brief was examined and considered in the determination of the issues in this case. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That defendants were willing to stipulate that if they were found liable for the injury that claimant was entitled to temporary disability benefits for one day on February 23, 1983 and then again from March 8, 1983 through April 25, 1983; a total of 7.143 weeks of temporary disability benefits. Claimant agreed that claimant was entitled to temporary disability benefits for this period, but contended claimant was also off work until October of 1983 and furthermore, his healing period did not end until March 20, 1987 (tr. p. 14). That the rate of compensation, in the event of an award of benefits, is $235.01 per week. That de!=endants claim no credit for benefits paid to claimant prior to hearing under an employee nonoccupational group health plan. M~LLOY V. FLOYD VALLEY PACKING CO. Page 5 That defendants paid claimant 7.143 weeks of workers' compensation benefits at the rate of $235.01 per week prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the Lime of the hearing: Whether claimant sustained an injury on February 22, 1983, which arose out of and in the course of employment with employer. Whether the injury was the cause of temporary disability. Whether claimant is entitled to temporary disability benefits, and if so, the nature and extent of benefits to which he is entitled. Whether the injury was the cause of permanent disability, to include whether claimant sustained an injury to the body as a wltole or whether claimant sustained a scheduled member injury. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled. Whether claimant is entitled to medical benefits. Even though the hearing assignment order designated odd-lot as a hearing issue, the prehearing report did not specify that this was proposed as a hearing issue at the time of the hearing, and thus it appears that the parties had abandoned this issue. Even though paragraph 7a and 7b on the prehearinq report showed that claimant was asserting the affirmative defenses of untimely claim under Iowa Code section 85.26 and untimely notice under Iowa Code section 85.23, defendants' counsel stated that these were not issues in this case at this time. Furthermore, neither one of these issues appeared on the hearing assignment order (tr. p. 17); and therefore, could not be addressed by the deputy anyway. Defendants contentions (1) that costs should be taxed to claimant and (2) that claimant is not entitled to any interest on any award because of the delays and continuances occasioned by claimant, are not designated as hearing issues on the hearing assignment order and will not be addressed in this decision (tr. p. 30; defendants' prehearing description of disputes, paragraph 7). int exhibit 8, pages 1 through 4, a medical report from Mark P. Hagen, D.C., for the reason that it was not served within 15 days prior to hearing pursuant to paragraph six of the hearing assignment order. Claimant MALLOY V. FLOYD VALLEY PACKING CO. Page 6 FINDINGS OF FACT INJURY It is determined that claimant sustained an injury to his right t;tigh and lower back on February 22, 1983, which arose out of and in the course of employment with employer. Claimant started to work for employer on April 28, 1982. He voluntarily quit on March 5, 1984, in order to open a bar in partnership with a friend. The injury occurred on February 22, 1983. Claimant was off work due to a strike from June 1, 1983 to October 1, 1983 (defendants exhibit 3). Claimant testified that he worked on night cleanup (tr. p. 52). One of his jobs was to clean combos. A combo is a metal container which measures four feet by four feet by four feet and weighs approximately 325 pounds when empty. It is used to transport hams, loins and other meat products within the packing house. On February 22, 1983, claimant attempted to place the lifting bars of a floor jack under a combo in order to raise it up and clean it out. The floor jack did not lower the Iifting bars like it was supposed to and the lifting bars and floor jack struck the combo with a jerk and it came to a sudden stop. This impact forced claimant's body forward and he struck the battery casing on the floor jack from the waist down and he also flipped over into the combo about three to four feet in front of him (tr. pp. 54-58). Claj.mant testified that he reported that he hurt his leg to Erv Sencenbaugh, his supervisor. Sencenbaugh told him to see Milton D. Grossman, M.D., the company physician. Claimant said he lost one day of work on February 23, 1983, pursuant to Dr. Grossman's orders. Claimant was working alone and there were no witnesses to the accident (tr. pp. 58-63). Dr. Grossman reported on March 29, 1983, that claimant bumped his ri.ght thigh into a fork lift on February 22, 1983 and sustained a contusion of the right thigh for which he was disabled one day on February 23, 1983. He administered first aid, took x-rays, and prescribed medication. Claimant was returnetr to work on February 24, 1983 (ex. 8 1-2; ex. 15, p. 6). Employer prepared an internal first report of injury for this incident which indicated that claimant bumped his right thigh against the fork lift causing pain and difficulty walking (ex. 15, p. 5). cencenbaugh also completed a supervisor's report of injury on February 23, 1983, which indicated that claimant bumped his knee and thigh (ex. 15, p. 11). Sencenbaugh verified at the hearing that claimant reported the injury to him at the time it happened (tr. p. 174). lie said claimant bruised his thigh and bumped his knee (tr, p. 175). The supervisor testified that when claimant returned to work, he inquired about his leg and claimant said it was alright. His work was good. He did everything. He did not have any problem that Sencenbaugh can remember (tr. p. 176). Sencenbaugh MALLOY V. FL.OYD VALLEY PACKING CO. Page 7 did not detect that claimant was in pain or having any difficulties after February of 1983 except on one occasion when claimant tol<! him that he was stiff and sore from working out lifting weights in a gym (tr. pp. 176 & 185). Claimant admitted that he belonged to a club, but denied that there were any weights involved. Claimant testified that when he told Sencenbaugh that he was stiff and sore, it was because of his job with employer (tr. p. 192). Claimant also admitted that he belonged to a nautilus club, but stated this was before the injury date. Claimant responded that he did not complain about being stiff and sore after the accident because he wasn't released by any doctor to work out (tr. p. 193). Claimant testified that after he returned to work on February 24, 1983, his leg and back continued to bother him and Sencenbaugh told him to go see his own doctor, A. J. Callaghan, M.D. However, claimant did continue to work at his same job of night cleanup from February 24, 1983 until he was taken off work by Dr. Callaghan on March 8, 1983 (tr. pp. 63-66). Dr. Callaghan reported, "Teeth jammed on fork l~ft, throwing patient against mead combo. He twisted his back. He returned to work following day, but back got worse." (ex. 8 G-4). Dr. Callaghan reported that x-rays were negative for fracture and that he diagnosed, "Acute sacroiliac". He took claimant off work on March 8, 1983, prescribed medication and physiotherapy and referred claimant to Dr. Paulsrud (full name unknown), an orthopedic surgeon (ex. 8 G-4). Dr. paulsrud saw claimant on April 1-4', 1983, for low back pain without radicular symptoms. X-rays demonstrated an increased lumbar lordosis. Dr. paulsrud diagnosed, "Low back strain with superimposed postural back problem." (ex. 8 G-3). He prescribed a postural program of exercises and said that claimant should be ab!e to return to work in the next week or two (ex. 8 G-3). Dr. Callaghan estimated as of April 18, 1983, that claimant would be able to return to work in approximately two weeks (ex. 8 G-5) Dr. Callaghan reported on September 16, 1985, "He was involved in a work accident on February 22, 1983, at which time I took care of him." (ex. 8 G-l). Company records and medical records show that claimant was taken off work on March 8, 1983. On April 25, 1983, he was released to return to work the following day on April 26, 1983 (ex. 15, pp. 3, 4, 12, 13, 14, 18, 19). Claimant then worked full time at his night cleanup job from April 26, 1983, until the time of the strike on June 1, 1983. Claimant testified that during the strike in the summer of 1983, he went to stoop over to cut a weed and his back went into severe spasm. He felt severe pain in his back and left leg. He MALLOY V. FLOYD VALLEY PACKING CO. Page 8 laid down in a ditch behind his car and then was helped into the back ser~t of the car and was eventually taken home. He testified that he had severe spasms on other occasions and when it was severe lie would be off his feet for three to four days, unable to move (tr. pp. 87-89). Claimant verified that he testified in his deposition that, "Everything went out on me." and that he was home in bed for about three days because, "I couldn't move it." Claimant further testified there was a lot of pain. "Seemed like anything I would do, I go into a lot of pain." (tr. pp. 127 h 128) Claimant returned to work when the strike ended 0!' October 1, 1983 and worked either on night cleanup or the cut floor, until he resigned on March 5, 1983 (tr. pp. 116, 119 & 129). From the foregoing evidence, it is determined that claimant sustained an injury to his right thigh and lower back on February 22, 1983, which arose out of and in the course of employment with employer eve't though the accident was not witnessed. Claimant reported it immediately; the supervisor made a written report; the company made out an internal first report of injury; claimant was treated by the company physician, Dr. Grossman, for his right thigh; claimant was later treated by Dr. Callaghan and examined by Dr. Paulsrud for his low back based on the history of this work injury and no prior episodes of back injury. CAUSAL CONNECTION-ENTITLEMENT-TEMPORARY DISABILITY Claimant is entitled to one day of temporary disability benefits on February 23, 1983, when Dr. Grossman kept claimant off work on the day following the injury.. 'Claimant is also entitled to temporary disability benefits for the period from March 8, through April 25, 1983, when Dr. Callaghan took claimant off work. Both Dr. Grossman and Dr. Callaghan indicated that these times off work were due to injury which occurred in February 22, 1983. Claimant received chiropractic treatments from Lloyd G. Molstad, D.C., from August 12, 1983 through September 30, 1983 and incurred a bill in the amount of $402 (ex. 8 C-l & C-2; ex. 15, pp. 23-25). It is determined that claimant did not sustain the burden of proof by a preponderance of the evidence that this period of treatment was caused by the injury of February 22, 1983. First of all, claimant returned to work and performed all of his duties without any difficulty according to Sencenbaugh until t)'e time of the strike on June 1, 1983. Then during the summer of 1983 while out on strike, claimant experienced an intervening severe traumatic back episode while working in his garden. No physician has stated that the garden incident was related to his injury on February 22, 1983. In fact, Dr. Molstad does not even mention the garden incident, nor do later doctors 'who examined and treated claimant. Therefore, the garden incident would appear to be an intervening cause in this case. MALLOY V. FLOYD VALLEY PACKING CO. page 9 Claimant's back complaints from the February 22, 1983 incident came on gradually and were not fully manifested until he saw Dr. Callaghan on March 8, 1983. By comparison, the garden incident precipitated immediate, severe pain which put claimant on his back and totally disabled him for a total of three days. There ale other minor discrepancies in Dr. Molstad's report. One of them is that he stated that claimant injured himself on March 27, 1983, while operating the fork lift and that all of his treatments were related to his accident of March 27, 1983. Dr. Molstad was incorrect about the date of injury which is actually February 22, 1983. Secondly, in his written report of November 7, 1983, Dr. Molstad stated he treated claimant from August 12 until September 30, 1983, but he did not indicate that claimant was unable to work during this period of time (ex. 8 C-l & C-2; ex. 15, p. 25). A third problem with Dr. Molstad's information is that he stated claimant would be unable to work from September 30, 1983 until October 10, 1983 (ex. 15, pp. 15 & 17). However, according to his written report claimant was not treated by Dr. Molstad during this period of time (ex. 8 C-l; ex. 15, p. 25). Therefore, it is determined that the injury of February 22, 1983, was not the cause of any temporary disability during the period of Dr. Molstad's treatment from August 12, 1983 until September 30, 1983 or from September 30, 1983 to October 10, 1983. Claimant is entitled to 7.143 weeks of temporary disability benefits when he was taken off work by Dr. Grossman on February 23, 1983 and when he was taken off work by Dr. Callaghan from March 8, 1983 through April 25, 1983. CASUAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY It is determined that the injury of February 22, 1983, was not the cause of permanent disability and claimant is not entitled to permanent disability benefits. Claimant did not seek out any treatment after he last saw Dr. Mol~tad on September 30, 1983, until he contacted Dr. Pechacek (full name unknown) on his own on February 18, 1985, a period of almost a year and a half after he last saw Dr. Molstad. Lumbosacral x-rays were normal. The disc spaces were normal. Dr. Pechacek diagnosed muscular low back pain. He recommended back exercises. Claimant saw Dr. Pechacek again on March 21, 1985. He did not keep his appointment on April 23, 1985. He saw Dr. Pechacek again on May 7, 1985 and did not keep his appoint\nent on June 18, 1985. There is another gap in his treatment by Dr. Pechacek of approximately one year, from May 7, 1985 to April 25, 1986. He saw Dr. Pechacek again on May 9, 1986, missed his appointment on May 19, 1986 and kept his appointment on June 26, 1986. Dr. Pechacek had claimant checked by Dr. McLarnan (full name unknown). HALLOY V. FLOYD VALLEY PACKING CO. Page 10 Dr. pechacek reported on October 2, 1986, that Dr. McLarnan did not identify any neurologic problems. He suggested that claimant obtain an EMG and nerve conduction study. None of Dr. pechacek's entries comment on the garden incident. Even though Dr. Pecliacek proceeded on the history of the fork lift incident, he made absolutely no statement concerning the cause of claimants compl.aints nor did he find any impairment or impose any permanent restrictions (ex. 8 Fl through F-5). Claimant then saw Mark P. Hagen, D.C., on September 3, 1986. Claimant gave a history of the fork lift incident, but there is no mention of the garden incident. Dr. Hagen said claimant complaiiied of severe daily migraine headaches, light headedness, loss of balance, dizziness, severe stiffness and soreness of the cervical spine, difficult neck movement, muscle spasms of the neck, grinding sounds in the neck, severe shoulder pain between the shoulder, numbness and pain in the arms, hands, and fingers, cold hands, loss of strength in the arms and hands, severe low back pain aggravated by activity, numbness and pain extending into the legs, muscle spasm to the lower extremities, pain in the buttocks, knee joint pain, lack of circulation in the feet, and pain in the hip. He determined that claimant had a IO percent impairment of the whole man based up on the cervical spine and IO percent impairment of the whole man based up on the low lumbar spine. A total whole body permanent physical impairment of 20 percent. Dr. Hagen concluded, "Based on the history as presented by this patient, the above noted objective findings from examinations, re-examinations (including x-rays), that the above noted injuries were sustained in the accident of February 22, 1983." (ex. 8 A-4) Dr. Hagen treated claimant with chiropractic manipulation approximately 49 times between September 5, 1986 and March 18, 1987 and his total bill amounted to $997.20 (ex. 18 A-I and A-2). Dr. Hagen's opinion on causal connection and impairment are disregarded. He makes no mention of the garden incident. His opinion is made on March 20, 1987, over four years after the initial injury of February 22, 1983. The scope of complaints which claimant registered with Dr. Hagen far exceed his initial complaints of a bruised right thigh and low back pain. Dr. Hagen's opinions are contrary to the opinions of Dr. Paulsrud and Dr. Pechacek, both orthopedic surgeons, and Dr. From, an internist, attd Dr. Socarras, a neurologist. Dr. From and Dr. Socarras who saw claimant approximately two or three weeks prior to hearing. Claimant saw Chester H. Waters, IlL, M.D., an orthopedic surgeon, on Tuly 27, 1987 and he made a report on October 20, 1987. Dr. Waters examined claimant for neck pain, shoulder pain, frequent heaOaches, blurred vision, vomiting, occasional numbness on the left side into the fingers and back pain. He found no fixed neurologic deficits in either the upper extremity or the lower extremity neurologic testing. Claimant's x-rays were essentially normal. He diagnosed chronic cervical and lumbar MALLOY V. FLOYD VALLEY PACKING CO. Page Il strain and possible inflammatory spondylopathy. He said his symptoms have remained relatively unchanged in the last several years and presumably are not likely to improve further. He did not see the need for anything surgical or for additional tests that would lead to surgery such as a CT scan or a myelogram. Dr. Waters concluded: In the absence of significant objective radiologic or neurologic abnormalities, and based upon the patient's persistent complaints of discomfort in his neck and back, I would estimate a ten to fifteen per cent [sic) permanent partial impairment to the body as a whole from his neck and back complaints, presumably a chronic cervical and lumbar strain. exhibit 8 B-3 Dr. Waters did not state that claimant's complaints were caused by the injury of February 22, 1983, nor did he state that claimant's disability was caused by this injury. On the contrary, Dr. Waters believed that it was a chronic problem which has remained relatively unchanged for the last several years and presumably is not likely to improve further. Dr. Hagen's report is also at odds with Angelo Patil, M.D., a neurosurgeon, who saw claimant on February 2, 1988, and Lynell W. Klassen, M.D., a rheumatologist, and Gerald Francis Moore, M.D., a rheumatologist. Doctors Patil, Klassen and Moore are doctors at the University of Nebraska Hospital and Clinics (ex. 9 A-I through G-l; ex. IO). None of these doctors could pinpoint a definite diagnosis for claimant's myriad symptoms. None of these doctors stated that the injury of February 22, 1983 was the cause of any of claimant's symptoms. The opinions of Dr. Patil, Dr. Klassen, Dr. Moore, Dr. From and Dr. Socarras as well as the opinions of Dr. paulsrud, Dr. Pechacek and Dr. Waters are preferred over the isolated opinion of Dr. Hagen. Rockwell Graphics Systems. Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Furthermore, the expertise and board certification of the medical doctors should be accorded greater weight than the chiropractic opinion of Dr. Hagen. Reiland v. Palco Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. ITT Continental Bakinq Co, thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979). Dr. From and Dr. Socarras testified by deposition on January Il, 1989, approximately one week before the hearing. Their depositions do not have a numerical or letter identification as an exhibit. An EMG at the university of Nebraska Medical Center of the left upper extremity and the left lower extremity, as well as both motor and sensory nerve conduction studies performed by A. S. Lorenzo, M.D., on April 6, 1988, were all reported as normal (ex. 9 DI aitd D-2) MfiLLOY V. FIOYD VALLEY PACKING CO. Page 12 An MflI examination performed at the university on April 6, 1988, by Francis Hahn, M.D., disclosed mild changes of degenerative disc disease with minimal disc bulging at L4-5 and mild lumber scoliosis (ex. 9 J-l). Laboratory studies on July l3, 1988, all appear to be normal (ex. 9 I-I and 1-2). A circulating immune complexes (CIC) test performed by T. McDonald, Ph.D., on July 13, 1988, which is a recently developed research tool that directly measures the amount of serum IG G and/or IG M antibody that is bound in an immune complex reported that the IG G was borderline positive and the IG M was highly elevated (ex. 9 1-3). Dr. patil stated that the MRI disclosed degeneration of L4-5 which was suspected to be related to heavy lifting, however, it is was not the cause of claimant's current symptoms. lie said his current symptoms were related to fibrositis and that is when he referred claimant to Dr. Klassen (ex. 8 El). Dr. From commented that the IG G and IG M studies indicated that something is going wrong with claimant's immune system (From deposition page 17). Both Dr. From and Dr. Socarras could find no objective cause of claimant's complaints other than the mild MRI report and the abnormal immune system report. They did not relate either of these conditions to claimant's employment or to the injury of February 22, 1983. They found no permanent impairment and saw no need to impose any permanent restrictions. From the foregoing evidence it is determined that the injury of February '2, 1983, was not the cause of any permanent impairment or disability. Therefore, the issues of whether the injury was the cause of scheduled memberdr industrial disability, commencement date and entitlement to permanent disability benefits are all moot. MEDICAL BENEFITS It is determined that claimant is not entitled to recover the medical expenses incurred with Dr. Hagen (ex. 18 A-I & A-2), Dr. Mol~tad (ex. IQ BI), the University of Nebraska Hospital (ex. IQ C-l) and the physicians at the University of Nebraska Medical Center (ex. IQ DI through D-7) because claimant did not prove that these expenses were caused by the injury of February 22, 1983. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing and following principles of law, these conclusions of law are made: That claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury to his right thigh and low back on February 22, 1983, which arose o'it of and in the course of employment with employer. Iowa Code section M~LLOY V. FLOYD VALLEY PACKING CO. page 13 85.3 (I) McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Tlt't the injury of February 22, 1983 was the cause of temporary disability. Bodish v. Fischer Inc., 257 Iowa 516, 133 N.W.2d Qr~7 (1965); Lindahl v. L.O. Boqqs Co., 236 Iowa 296 IS N.W.2d 007 (1945). Thit cl~iimant is entitled to 7.143 weeks of temporary disability benefits. Iowa Code section 85.33(l). That defendants are entitled to a credit for 7.143 weeks of temporary disability benefits paid to claimant prior to hearing as stipulated to by the parties. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of February 22, 1983 was the cause of permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945) That the issues of whether the injury was the cause of industrjal disability or scheduled member disability, entitlement to permanent disability benefits, and the commencement date of such benefits are moot because claimant did not prove that the injury was the cause of permanent disability. That claimant is not entitled to the medical benefits requested in exhibit IQ for the reason that claimant did not prove that the injury of February 22, 1983, was the cause of this treatment. ORDER TlILREFOHE, IT IS ORDERED: That no further amounts are due from defendants to claimant on account of the injury of February 22, 1983. That each party is to pay their own respective costs of this action and defendants are ordered to pay the costs for the attendance of the court reporter at the hearing. Rule 343 IAC 4.33. pefendants are to pay for the copy of the transcript which they ordered and the copy which they offered to supply to the industrial commissioner's file (transcript pages 46 & 47). That defendants file any claim activity reports that may be requested by this agency. Rule 343 IAC 3.1. MALLOY V. FIOyD VALLEY PACKING CO. Page 14 Signed and filed this -day of January, 1991. hh;)Ln WALTER R. MCMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Raymond Pogge Mr. Christopher J. Tinley Attorneys at Law 306 First Federal Savings and Loan Bldg. PO Box 1502 Council Bluffs, Iowa 51501 Mr. Harry W. Dahl Attorney at Law 974 73rd St. STE 16 Des Moines, Iowa 50312 5-3303 Filed August 2, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : ANGIE AYALA, : : File Nos. 728337 Claimant, : 846131 : vs. : D E C I S I O N : DEPARTMENT OF HUMAN SERVICES, : O N : Employer, : A P P L I C A T I O N : and : F O R : STATE OF IOWA, : P A R T I A L : Insurance Carrier, : C O M M U T A T I O N Defendants. : ___________________________________________________________ 5-3303 Claimant showed that payment of bills for the purchase of a van, consumer debts and repairs to her home was a reasonable use for commuted funds. Claimant is 71 years old. She is totally disabled. She is suffering chronic pain from two failed back surgeries. Payment of these bills will provide claimant with peace of mind. Claimant was not required to show medical necessity in order to be successful on her request for a partial commutation.