BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONALD ROTHE, Claimant, vs. File No. 735112 TRAINING & MANAGEMENT, INC., d/b/a THE DENISON JOB CORPS, A P P E A L Employer, D E C I S I O N and THE AETNA CASUALTY AND SURETY, COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 6, 1990 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Colin McCullough Attorney at Law P.O. Box 428 Sac City, Iowa 50583 Mr. Thomas M. Plaza Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 9998 Filed November 5, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RONALD ROTHE, Claimant, vs. File No. 735112 TRAINING & MANAGEMENT, INC., d/b/a THE DENISON JOB CORPS, A P P E A L Employer, D E C I S I O N and THE AETNA CASUALTY AND SURETY, COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed December 6, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONALD W. ROTHE, Claimant, File No. 735112 VS. TRAINING & MANAGEMENT, INC.,/ A R B I T R A T I 0 N d/b/a THE DENISON JOB CORPS, D E C I S I 0 N Employer, and THE AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by the claimant, Ronald W. Rothe, against his employer, Training & management, Inc., d/b/a The Denison Job Corps, employer, and its insurance carrier, The Aetna Casualty and Surety Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained May 25, 1983. This matter came on for hearing before the undersigned deputy industrial commissioner in Sioux City, Iowa, on February 18, 1987. The record was considered fully submitted at close of hearing but for briefs filed by the parties. A first report of injury was filed June 9, 1983. Pursuant to the prehearing report, the parties stipulated that claimant received healing period or temporary total disability benefits from May 26, 198,3 through November 4, 1983 with any permanent partial disability due to commence on November 5, 1983. The record in this proceeding consists of the testimony of claimant, of Patricia Rothe, of James O'Connor, of Patricia Ann Nolan, of Karen Stricklet, of Stephen Sharpsen, Ph.D., and of Nils R. Varney, Ph.D., as well as of exhibits 1 through 37, exhibit 38, exhibits 42 through 44, and exhibits 49 through 55. All objections to exhibits but for those to exhibits 39, 40, 41, and 45 through 48 are overruled. All objections to testimony are overruled. ISSUES Pursuant to the prehearing report, the parties stipulated that claimant received an injury on May 25, 1983 which arose out of and in the course of his employment, and that a causal relationship exists between his claimed disability and that injury. They further stated that claimant's rate of weekly compensation in the event of a permanency award is $132.45. The issues remaining for resolution are: 1) Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement, including the related question of whether claimant is an odd-lot worker under the Guyton doctrine; and 2) Whether claimant is entitled to payment of certain medical costs pursuant to section 85.27. REVIEW OF THE EVIDENCE Thirty-five year old claimant, who is a high school graduate, was injured in a motorcycle accident while traveling at a low speed. He landed on his head and was unconscious for over four days. He subsequently responded and was released from the hospital twelve days following his injury. Claimant lives in Denison, Iowa. Prior to his injury, claimant worked as a service station attendant and mechanic, in candy and insurance sales, as a land surveyor, as a packinghouse worker, and as a counselor at a residential facility, that is, the Denison Job Corp. Claimant characterized that job as a people interaction job where he was on his feet most of the day. Claimant received $4.90 per hour for doing that work. Claimant returned to work with the Denison Job Corp following his work release in November 1983. He worked three and one-half days. Claimant reported that he was expected to do a full day's work while working at the Corp half-days only; he could not handle that; he accepted a job offer at the Denison Movie Center. The movie center at that time was apparently largely a video cassette tape rental store. It has subsequently expanded to include sales of video cassette recorders and televisions. Claimant's wage is $250 per week and he receives a 10 percent commission on profits over costs. His commission amount in 1985 was $4,400, and in 1986 approximately $2,400. Claimant's current responsibilities at the Movie Center are to do bookkeeping, supervise employees, sell VCR's and TV's, rent VCR's and TV's, take inventory, and schedule employees. Claimant reported a number of impairments including pain on walking on account of a metal support in his right shoe, dizziness, difficulty with word finding, severe loss of his capacity to smell, ringing in his ears, hearing loss, a stiff neck, sleep disturbances with daytime fatigue and night awakening, constant mild to severe headaches for which he must leave work, and depression. He also testified that Nils Varney, Ph.D, and Marc Hines, M.D., has diagnosed a partial complex seizure disorder for which claimant is currently taking medication. Claimant reported that he understood one of the side effects of the medication is high blood pressure and that he consequently takes Valium as well. Claimant testified that his wife has noticed that he is under strain from impending litigation though he himself has been generally unaware of any strain. Claimant described himself as a complacent, easygoing person prior to his injury. claimant reported that he is expected to work approximately fifty-five hours per week but had missed part of nineteen days in January 1987 on account of health problems related to his injury. He agreed that time off work included time during which he sought medical treatment. In 1985, claimant had been advised to seek speech therapy but did not. ROTHE V. TRAINING & MANAGEMENT Page 3 Claimant opined that he felt he would have had no job had he taken time for speech therapy as well as time missed from work on account of illness. Claimant also did not undergo advised stress therapy. Claimant opined that the job he now has is the only job in his county which he could perform on a full-time basis. He opioned that he could not do packinghouse work or return to his Job Corp job as he could not handle working an eight hour day or walking. Claimant testified he has been advised not to drive motor vehicles on account of a probable seizure disorder. Claimant expressed his belief that Charles Taylon, M.D., his treating physician, was not helping him and that he and his wife had, therefore, sought a referral from Dr. Taylon to Horst Blume, M.D. Claimant agreed that he had seen William R. Hamsa, M.D., on his own as well as apparently Edward Schima, M.D. Claimant reported that Robert L. Bendorf, M.D., was a referral through Robert E. Jonesen, Ph.D. He reported that he had been referred to Nils Varney, Ph.D., by friends and his counsel. Patricia Rothe, claimant's wife since 1972, testified that prior to his injury, claimant was a very energetic, hard working person, who was pleasant, happy, enjoyed time with family and friends, as well as enjoyed working on his car. She reported that following his injuries, claimant has had an air of quiet anger with sporadic eruptions of emotions often coming out on the couple's nine year old daughter. Mrs. Rothe stated that claimant tries very hard to prevent his mood swings and withdraw when he senses a mood eruption is likely so as not to hurt others. She characterized claimant as withdrawn with friends and as not including himself in conversations at times, but other times as enjoyable. She reported that claimant's social interaction patterns can change in minutes. She has often spent time with claimant at work because claimant initially could not perceive what things needed to be done and later because claimant simply could not handle his work duties. Mrs. Rothe expressed her belief that Dr. Taylon had not helped claimant who she knew had pain twenty-four hours a day, but that Doctors Hines and Varney have been helping claimant. She reported that while there are new problems because of claimant's seizure and medication, overall claimant is much better than he was six months ago in that he has become more of a person since he began medication in January 1987. She reported that he now visits better with friends and family and that claimant has been told he will feel better once he gets the seizure medication to the proper strength. On rebuttal, Mrs. Pothe reported that claimant's physicians have not told claimant all of his problems as claimant has requested that he not be told of them. James O'Connor, claimant's current employer and president of the Movie Center, reported that claimant has an interest in electronics and has learned a lot in the three and one-half years he has been employed at the center. He testified, however, that claimant's job performance has been declining rapidly and that he feels he soon will need to let claimant go. Mr. O'Connor reported that he has received approximately a half dozen ROTHE V. TRAINING & MANAGEMENT Page 4 complaints from coworkers and customers that claimant has been rude and behaved inappropriately in the work situation. He reported that he had hired other brain damaged employees who had always gotten better and that he had hired claimant for that reason in November 1983. O'Connor stated that in November 1983 claimant's primary problem was clumsiness and subsequent damage to furniture. He reported that now claimant cannot keep up, cannot train employees, and cannot work with customers at a retail level. He testified that claimant now treats customers differently than when first hired. He reported that claimant cannot remember the memoranda sent to him and misplaces items. O'Connor opined that he could not use claimant in his own businesses and that he did not believe that the Denison job market held quality, dependable, stable jobs for claimant. O'Connor reported that he told Vocational Rehabilitation Specialist Karen Stricklett, on February 17, 1987 that he would keep claimant "for now" because claimant's job means a great deal to claimant and that he hopes claimant will realize on his own that claimant is unable to perform the job. On rebuttal, O'Connor testified that there was no job which Ms. Strickler had described in her testimony which claimant could not perform. Patricia Ann Nolan, a center standards officer at the Denison Corp and a former coworker of claimant, testified that she worked with claimant for approximately two and one-half years. Both were initially residential advisors at the Denison Job Corp and usually worked together on a shift. She described claimant as very tired and very moody at times and reported that his interactions with clients and coworkers varied with his mood. She reported that on occasion, claimant slept in her office while they were working the 12:00 p.m. to 7:00 a.m. shift. She described claimant as a nonself-starter who did what was requested of him and at times [as late to work]. Steven D. Sherretts, Ph.D., testified that he is a clinical neuropsychologist and director of clinical psychology for the City of Omaha Public Safety Department, as well as director of clinical psychology at Emmanuel Hospital in Omaha. He deals with head injured patients in the course of his job. He has not personally examined claimant. He reviewed the following medical reports defendants supplied: Records of Dr. Taylon, Dr. Chait, Patricia White, M.A., Nancy Appletoft, M.A., Dr. Friedlander, Dr. Bendorf, and Dr. Blume, reports of Dr. Varney,Dr. Schima, and Dr. Graz, as well as the evaluation of Dr. Yenson, and an EEG report of Dr. Hines. Dr. Sherretts opined that claimant suffers from post-concussion syndrome and depression. He stated that the hard signs of neurological damage were largely absent in that claimant's CT scans were generally negative and that his EEG patterns were not consistent for neurological damage. Dr. Sherretts later reported that a subsequent EEG, in apparent reference to that performed by Marc Hines, M.D., had been done over a longer time span and included conditions which previous EEG's did not. He reported that such EEG's may more readily reveal certain seizure patterns. He also stated that it was possible claimant had developed seizures following the initial EEG's. The doctor stated that seizure equivalents or seizures would not always be directly observable and would not directly tie into or affect claimant's lifestyle or employability. Dr. Sherretts indicated that claimant has been on Tegretol since ROTHE V. TRAINING & MANAGEMENT Page 5 January 1987 to control his seizures. He described Tegretol as an anticonvulsant which at times acts as a depressant and can affect one's ability to process information. Dr. Sherretts opined that depression can affect one's ability to cope and reported that a major depression could also explain claimant's symptomatology. He indicated that in head injured patients, depression could originate in the injury itself or could be a reaction to the the injury and its subsequent effects with both factors usually contributing to the depressive disorder. Dr. Sherretts indicated that the medical records demonstrate claimant is employed and having some difficulties, but still coping reasonably well. He reported that he would recommend intensive psychotherapy for claimant in order to explain the origins of claimant's symptoms to him and to educate claimant on coping with those symptoms. Dr. Sherretts indicated that post-concussion symptoms which are present 18 to 24 months after the injury tend to remain present to some degree permanently, but rarely deteriorate beyond that point. He reported that he sees no deterioration in claimant's condition but for claimant's possible development of a seizure disorder not previously present. He further opined that the medical records reviewed did not substantiate a seizure disorder; there was no direct evidence that claimant was having specific seizures and no evidence medication had improved any seizure condition. Sherretts did not believe claimant had a major cognitive deficit but that claimant had memory problems, fatigue, and a lack of endurance. Sherretts characterized litigation as stressful and as tending to exaggerate post-concussion syndrome symptoms. Sherretts opined that post-concussion syndrome should not be a major factor in claimant's ability to function on a day-to-day basis and reported that it would be unusual for a person who had been unconscious for four days and then responded and was released from the hospital within twelve days to be damaged to such an extent that the individual was unemployable. Sherretts agreed that he was not considering claimant's injury to his right foot when he characterized claimant as employable. The deposition of Nils R. Varney, Ph.D., taken in the matter of Rothe vs. Ferris, Maranville, Diebels and Fineron, on September 12, 1986 was offered into evidence. Dr. Varney holds a Ph.D. and is employed at the Veterans Administration Hospital in Iowa City, Iowa, where he is the staff neuropsychologist and performs neurological assessments and disability examinations. He is also an adjunct professor of psychiatry at the University of Iowa. Dr. Varney initially examined claimant on July 21, 1986. He interviewed claimant and claimant's wife in the course of the examination. Dr. Varney reported that claimant had a reasonably good memory test performance, but appeared depressed and had a below average score on word finding which score would indicate damage to the left frontal lobe or left temporal lobe. Dr. Varney reported that the frontal lobes are involved in psychosocial skills, such as being reliable, planning ahead, and being motivated. He reported that the frontal lobes initiate activities in which the rest of the brain is needed to accomplish the activity. Varney reported that claimant did nothing constructive during a ten minute nonstructured Tinker-toy test. The test apparently measures the ability to plan and conceive ideas on one's own without direction from the test giver. Varney ROTHE V. TRAINING & MANAGEMENT Page 6 reported that claimant had post-traumatic anosmia, that is, diminished smell recognition, and very poor taste acuity. Varney stated that those conditions indicated damage to the olfactory nerves and were, therefore, a sign of frontal lobe injury. Varney reported that claimant's diagnosis would be threefold: 1) Probable partial complex seizures, that is, psychosensory seizures, demonstrated by highly complex activity automatisms, visual hallucinations, rage attacks, periods of confusion, very bad headaches, and very abrupt mood changes; 2) Organic affective disorder demonstrated by bad mood, insomnia, anergia, tearfulness, and a subjective sense of memory loss; and 3) Multiple psychosocial deficits of a type usually associated with damage to the orbital central cortex, demonstrated by the failed Tinker-toy tests, word finding difficulties, loss of the sense of smell, absent-mindedness, indecisiveness in minor life details such,as determining how to dress or what to eat, poor planning and poor anticipation, experiences of perplexity, the appearance of a lack of motivation, disorganization, nonspontaneous, inflexible and rigid behavior patterns, poor judgment, and preservation beyond appropriate limits. Also included are periods of inappropriate behavior when claimant either tunes out socially or uses coarse language or insults or otherwise inappropriately speaks to persons, poor impulse control, disinhibited behavior, and self-centeredness, more inconsideration than would be normal, a childlike dependence, and neglecting to be reinforcing to relatives. Varney opined that the third diagnosed condition would be most disabling to claimant because the frontal lobes, particularly the orbital frontal cortex, are the the organ of rehabilitation in psychotherapy. Varney strongly suspected that claimant's present employment was a "fluke" with claimant's risk of unemployment or underemployment reaching its maximum and staying at that maximum three to five years after his accident. Dr. Varney also testified telephonically at hearing as a rebuttal witness for claimant. Dr. Varney then stated that a patient's pre-injury behavioral history is indispensable in treating and diagnosing head injuries and, for that reason, he had spent more than an hour talking with claimant's wife. He explained that frontal lobe damage decreases the ability to think spontaneously and to make decisions and opined that claimant's only spontaneous mental activity of note is caused by his seizure disorder and results in irritability and bizarre behavior. Varney stated that seizure patients typically get worse over time if they are untreated in that the cells around the injured areas become malfunctioning as well. Varney reported that if the disorder is controlled, part of the decline in the patient over time can be reversed. He opined that Dr. Hines' EEG had confirmed the seizure disorder and reported that the effects of a seizure can last two or three days following the seizure even if the seizure itself occurs in the patient's sleep. Varney reported that controlling the seizure with anticonvulsant medication will make claimant more comfortable but will not cure his frontal lobe problem which is disabling in itself and, hence, control of the seizures cannot make claimant a better employee. Varney characterized the diagnosis of post-concussion syndrome as a too vague and all encompassing term for a grab bag of symptoms. ROTHE V. TRAINING & MANAGEMENT Page 7 He agreed that claimant was depressed and stated that seventy percent of head injury patients will experience depression within two years of their injury. He further stated that depression often accompanies poorly controlled seizure disorders. He opined that claimant's depression would be treatable only following treatment of his seizure disorder. He stated that if the seizures are controlled, the depression, itself, may resolve or be amendable to treatment with antidepressant medications. Varney stated that antidepressant medication would be ineffective if seizures were not controlled and could cause grand mal epilepsy in claimant. He opined that a negative EEG or negative MRI did not prove that brain damage did not exist and stated that claimant had eighteen or nineteen of twenty-two symptoms of partial complex seizures and that, therefore, behavioral grounds for suspecting that seizures exist were extremely solid. Varney opined as to claimant's extent of disability that if claimant's seizures were controlled, claimant would be a reasonably content but mentally inert individual. He opined that if the seizures were not controlled, claimant would gradually deteriorate and eventually other deficiencies of memory or poor temper control or depression would result in his placement in a psychiatric or neuropsychiatric care facility. Varney opined that in either event claimant was totally disabled. Dr. Sherretts again testified by way of surrebuttal testimony. He reported that there was no reason to assume claimant had a major seizure disorder in that claimant's sleep disturbance and his use of antidepressant medications could both ROTHE V. TRAINING & MANAGEMENT Page 8 enhance the possibility of an abnormal EEG. He further stated that an abnormal EEG did not necessarily demonstrate seizures in that the absence of a behavioral change in claimant after taking seizure medication indicated that if claimant had a seizure disorder it was either not responding to medication or that the abnormal EEG [did not demonstrate something] contributing to claimant's problem. Sherretts stated that memory gaps and confusional spells during the day did not demonstrate a seizure disorder. He reported that claimant's loss of of his sense of smell did not necessarily show frontal lobe damage in that loss of smell was found in approximately thirty percent of individuals having even minor head injuries. He reported, however, that the loss of smell did indicate the possibility of olfactory nerve damage. Sherretts indicated that deterioration in a brain damaged individual's condition would not occur unless scar tissue was filling in damaged areas. He reported that that condition would show on magnetic scanning; that without scarring being documented on a magnetic scan it would be ludicrous to consider claimant's condition as deteriorating. Sherretts indicated that partial complex seizures are difficult to observe and can range from having no notable effect to an individual's having rage reaction and extreme outbursts in mood and behavior. Sherretts stated that the latter behaviors are found in individuals with very serious temporal lobe problems where the ability to control emotion is not present. He reported, however, that the EEG that Dr. Hines performed shows temporal lobe spiking in the right frontal to more central [region] which would infer temporal to peripheral [damage]. Sherretts characterized partial complex seizure disorders as one of the more difficult seizure disorders to treat in that a variety of factors affect one's seizure threshold. Those factors include fatigue, sleeplessness, stress, medication, diet, and allergies. Sherretts opined the patient must comply with treatment in each area, but if the patient does so, generally effective seizure control can be achieved. Sherretts disagreed that claimant is totally disabled. He reported that claimant could expect problems with tension and ear ringing, as well as problems with dizziness, headaches, and fatigue. He reported that the fatigue could be expected to improve over time. Sherrets again stated that post-concussion syndrome symptoms are worsened with stress, fatigue, or illness. He reported that claimant could expect his symptoms to improve over the next three to five years if claimant did not consider himself disabled. He expressed once again his understanding that claimant had done a very commendable job at work until recently and stated that if the medical reports were accurate, he would expect that behavior to continue ' Sherretts stated that he would be cautious in placing claimant in a position requiring a high degree of sustained vigilance, particularly where the safety of others would be dependent upon claimant. He stated that one must look at claimant's areas of deficit and take those into account in searching for employment for claimant. He opined it would not be a particularly difficult task to find claimant employment taking those into account assuming claimant was sufficiently motivated for employment. Sherretts agreed that an individual with post concussion syndrome symptoms should exercise extra vigilance in driving. Karen Stricklett testified. Ms. Stricklett hold a Masters Degree in counseling and is a certified rehabilitation counselor ROTHE V. TRAINING & MANAGEMENT Page 9 as well a certified insurance rehabilitation specialist, who is certified to administer the general aptitude test battery. She is self-employed, but also works with Dr. Sherretts in the Emmanual Hospital Rehabilitation Unit. Ms. Stricklett reported she has worked with head injured patients and inpatient counseling at the rehabilitation unit and has had four head injury clients during the past five years whom she followed from hospital release to job placement. She reported that she had reviewed reports concerning claimant supplied her and had asked Dr. Sherretts to review those reports as well. Ms. Stricklett stated that she normally works with rehabilitation clients residing in small towns in Iowa and Nebraska and that she assumed Denison, Iowa was similar to most other small towns in that region. She reported that the jobs she considered for claimant would appear consistent with jobs found in small towns as the jobs were all entry level jobs. Strickett opined that without retraining claimant could work as a service station attendant, a surveyor's helper, a cashier, a hotel desk clerk, a mail clerk, a messenger, a shipping and receiving or order clerk, or a security guard. She reported that a sales route driver position was considered for claimant before the seizure disorder was diagnosed. Stricklett stated that the jobs outlined, even if sales jobs, were not the type of sales jobs that would involve higher pressured social interaction between the employee and others. Stricklett opined that with training, claimant could consider a position in drafting as his visual and spatial perceptual skills were excellent; he had done very well on his block design test; and he had a very high performance I.Q. Stricklett stated that drafting would not require a great deal of verbal activity and that an individual would be working regularly with information and things and objects as opposed to people. She also stated that because of claimant's strong mechanical interest, auto mechanics, civil mechanics, or architectural positions, and an automotive parts clerk were positions to be considered. She reported that an electronics position would also utilize claimant's very good mental math skills and his good visual and perceptual skills. Stricklett had considered a precision machine operator for claimant prior to considering the seizure disorder. Stricklett opined that transportation could be a problem for claimant in getting from his Denison home to jobs in the surrounding environs, but if claimant could not drive, car pooling was a possible option. She agreed that the Christmas season would be hectic for sales clerks and stated that it was uncertain whether claimant should carry a gun if he worked as a security guard considering his seizure disorder. Stricklett agreed that a surveyor has to walk and carry instruments. She reported that while claimant reports he is unstable in his gait and has a medical disability related to his right foot he has no medical restrictions relative to the foot. Stricklett agreed that if claimant had actually missed part of twenty-six work days in January 1985, that work record would seriously handicap his ability to compete in the job market. Stricklett described a self-fulfilling prophecy as a vocational term describing the phenomenon that people will tend to do what they are told they can do. She agreed that Dr. Varney's report came out in July 1986 and expressed her understanding that Dr. Varney had ROTHE V. TRAINING & MANAGEMENT Page 10 explained his diagnosis to claimant. She also expressed her understanding that claimant's greatest problems had developed in the last five or six months. Stricklett reported that she has worked with two individuals who have grand mal seizures and that both are employable when the condition is controlled with medication. She reported that one is currently employed as a radio electronics worker and the other is attending college to obtain training as an accountant. As the parties have stipulated that a causal relationship exists between claimant's claimed disability and his injury, medical evidence will be reviewed only insofar as the evidence is relevant to the determination of the nature and extent of claimant's disability. A St. Joseph Hospital discharge summary of June 8, 1983 of Griffin Evans, M.D., and Charles Taylon, M.D., reports that an emergency CT scan upon claimant's arrival at the hospital revealed a a small epidural hemitoma on the right parietal region with some surrounding brain edema. A little midline shift was also seen on the CT scan. Follow-up CT scan of the head revealed a slight increase in the epidural hemitoma over the right parietal region with some evidence of mass effect with obliteration of the frontal horn of the right lateral ventrical. Specialists in ENT examined claimant and felt that his seventh nerve palsy was most likely due to a basilar skull fracture with fracture of the petrous bone. A CT scan of the temporal bone revealed fracture to the right temporal bone just anterior to the mastoid. Fluid and hemorrhage was found in the middle ear cavity on the right. There was some suggestion of disruption of the ossicle chain. Dr. Taylon is apparently not board certified. He is associated with the Creighton University School of Medicine, Department of Surgery Division of Neurosurgery, however. William R. Hamsa, Jr., M.D., initially saw claimant in January 1984 with complaints of a painful metatarsal joint in his right foot. Examination of the foot showed normal motion in the ankle, subtalar and metatarsal joints with definite restricted dorsiflexion and plantar flexion in the metatarsal phalangeal joint of the right great toe with tenderness about the joint. X-rays apparently revealed small amounts of cyst formation on the media side of the metacarpophalangeal head of the first wave with suggestion of some very early osteoarthritic change in the joint surface. Traumatic synovitis or arthritis of the metacarpophalangeal joint of the right great toe was diagnosed and metatarsal bars for claimant's shoes were recommended. Dr. Hamsa subsequently opined that claimant had traumatic chlondromalacia, and on November 6, 1984 injected steroids into the joint. On November 24, 1984, Dr. Hamsa indicated claimant had excellent relief of pain since the injection, had a fair range of motion, and a little bit of pain on extremes of dorsiflexion or plantar flexion. He did not believe reinjection was indicated. Claimant was to be seen on as-needed basis subsequent to that date. David H. Chait, M.D., an otolaryngologist, treated claimant for dizziness, balance problems, and hearing loss following his injury. On September 7, 1983, he reported that an ENG demonstrated a right peripheral labyrinthine weakness compatible ROTHE V. TRAINING & MANAGEMENT Page 11 with previous head injury or resolving phase of post-traumatic labyrinthine hydrops. He further reported that if claimant had a reoccurrence of the symptoms of dizziness, then his diagnosis would be post-traumatic labyrinthine hydrops. On January 23, 1984, Dr. Chait reported that claimant continued to have imbalance problems and that some central nervous system injury accompanied the imbalance which was due to the vestibular injury. Right facial paralysis was improved considerably. Hearing in the right ear was diminished slightly when compared to the left. Claimant was also complaining of nasal obstruction which the doctor felt could be traced to facial nerve injury. On January 15, 1985, Dr. Chait opined that under the Journal of American Medical Association Guides for Evaluation of Hearing Handicaps, claimant's right ear handicap was 0 percent; left ear 0 percent; binaural 0 percent with an overall disability rating of 0 percent. Dr. Chait evaluated claimant's dizziness under the American Medical Association Guides to Evaluation of Permanent Impairment and rated claimant as having a number 2 impairment under the audiology standards or a 5 to 10 percent of the whole "man" impairment. He reported that under that impairment rating, the usual activities of daily living can be performed without assistance except activities involving personal and public safety such as operating a motor vehicle or riding a bicycle. On December 16, 1983, Charles Taylon, M.D., opined that claimant's prognosis was good and stated he did not anticipate permanent neurological disability for claimant. Dr. Taylon then did not recommend further treatment for claimant. A CT scan performed on August 2, 1983 was interpreted as normal. Dr. Taylon again saw claimant on February 5, 1985. Claimant was then complaining of memory problems, both long and short term memory. Claimant complained that he had problems with spelling and word association, stiff neck and continuing fatigue as well as right-sided facial sensitivity. Claimant reported problems with smelling, ringing in the ears, and loss of hearing. He reported his jaw was tight and claimed he always had a headache as well as pain in his right foot on the large toe. Dr. Taylon reported that neurological examination at that time did not reveal abnormalities. A CT scan of February 5, 1985 was normal. An EEG of February 12, 1985 was interpreted as normal. Dr. Taylon then referred claimant to Richard Friedlander, for neuropsychiatric testing. Dr. Taylon again opined that claimant had no objective evidence of disability from a neurosurgical point of view. Edward M. Schima, M.D., evaluated claimant on April 22, 1986. He had also treated claimant in October 1983 as well and had referred claimant to Richard Friedlander, Ph.D. for psychological evaluation on November 12, 1983. Dr. Schimals report indicates that a repeat CT scan of claimant's head done on November 8, 1983 revealed a post-surgical defect in the right frontal area. Schima reported that patient could walk briskly on a normal basis. An EEG was essentially normal. Schima reported that neurological examination was unremarkable apart from absent detection of camphor bilaterally, flattening of the left nasal labial fold and some difficulty walking on his heels. He stated ROTHE V. TRAINING & MANAGEMENT Page 12 that claimant seemed to have made a good recovery with a major source of his disability being in the cognitive and behavioral sphere. He reported that in addition to memory and language functional impairment, claimant appeared depressed with that being the most treatable aspect of his condition. The doctor stated: "However, the wife's concern that there has been a change in personality, as well as his performance on psychological testing would raise the question of predominantly frontal involvement which may sometimes elude detection on standard psychologial testing." Dr. Schima is associated with Omaha Neurological Clinic. Horst H. Blume, M.D., a board certified neurologist, examined claimant on July 9, 1984. His impression was that claimant had some intermittent occipital myalgia-neuralgia, right more than left. He believed claimant had sustained a cerebral concussion most likely of the areas of left cerebral hemisphere responsible for some of his speech impairment. He felt claimant had intermittent lower cervical nerve root irritation syndrome without motor or sensory deficit. Charles M. Graz, M.D., assistant professor of the department of psychiatry and behavioral science, Creighton University, evaluated claimant on October 11, 1985. He believed claimant's diagnosis was more towards an organic personality syndrome than an organic affective syndrome. He stated that claimant's features suggested some emotional lability with temper loss and marked apathy and indifference. He noted those are features of ROTHE V. TRAINING & MANAGEMENT Page 13 an organic personality syndrome. Dr. Graz indicated that while claimant had some depressed features noted, other classical depressive features were not seen. He felt that claimant's depression, that is his apathy, was probably more related to an organic condition than a mood disturbance. He noted that he did not sense the anguish, pain, and suffering that someone in depression experiences in claimant. The doctor opined that if claimant's mental state continued over the next several years it would not change significantly. Robert E. Joneson, Ph.D., clinical psychologist, administered the Luria-Nebraska Neuropsychological Battery; Wechsler Adult Intelligence Scale-revised on claimant as part of a neuropsychological evaluation on October 9, 1985. on the Wechsler claimant obtained a full scale I.Q. score of 116, a performance I.Q. score of 124, and a verbal I.Q. score of 107. The scores indicate claimant is functioning in above-average intelligence range. The doctor opined that in an absolute sense, any deficits claimant has [as a result of his injury], are likely to be extremely minimal and probably do not greatly affect his level of adaptive functioning. Claimant's performance on the Luria-Nebraska test was essentially negative demonstrating that claimant was not experiencing significant neuropsychological deficits. In conclusion, Dr. Joneson noted that following trauma, neuropsychological disabilities which are largely accounted for by certain areas of cerebral activity in time commonly are taken over by new functional systems which develop. Neuropsychological ability then returns to a level very near to premorbid functioning. In a follow-up report of November 7, 1985, Dr. Joneson stated he considered claimant from an emotional standpoint to be quite depressed and as having difficulty functioning. He reported that he had visited with claimant on a number of occasions prior to administering the test battery and that claimant then had shown significant signs of depression including sleep disturbance, lack of motivation and energy, mood disturbances and irritability. On July 7, 1986, Ronald L. Bendorf, M.D., a board certified psychiatrist, reported that he had initially evaluated claimant in August 1985 and claimant then had a mild organic brain syndrome secondary to cerebral trauma and reactive depression. Claimant was treated with antidepressant medication and supportive therapy through June 16, 1986. Dr. Bendorf's impression as of July 7, 1986 was that claimant continued to manifest some mild to moderate depressive symptomatology of a reactive nature associated with his injuries. The doctor reported there was a very strong likelihood that some of the depression would persist and become a more chronic dysthylic disorder. The doctor reported that magnetic imaging of claimant's brain on April 30, 1986 was interpreted as within normal limits and failed to show any abnormal imaging of the intercranial contents. He anticipated claimant would improve somewhat once the "stress of his suit" had been resolved, but felt a chronic depressive element existed which would not likely resolve. Dr. Bendorf reported it was difficult to say how much disability claimant's chronic depression would cause, but that he felt it would be a contributing factor to his overall incapacity. ROTHE V. TRAINING & MANAGEMENT Page 14 D.M. Lambert, M.D., a psychiatric consultant, evaluated claimant on or about April 10, 1985. He opined that claimant did not display symptoms of clinical depression but that tests administered indicated a long-term psychological adaptive mechanism rather than a depressive illness. Claimant was evaluated at the Psychological Services Center of the University of South Dakota on September 28, 1984. In a report of Patricia White, M.A., clinical psychology trainee, claimant was advised that the findings from the neuropsychological test suggested no major brain dysfunction or impairment. Nancy Appletoft, M.A., speech language pathologist, evaluated claimant on September 18, 1984. She believed following assessment that claimant was functioning on the purposeful and appropriate level of the Rancho Los Amigos Scale of Cognitive Functioning. Language characteristics were minimal auditory receptive and auditory memory deficit, minimal reading deficit, mild word finding problem, minimal writing deficit, and mild arithmetic deficit. Claimant had no observable difficulties in orientation, fund of general information, problem solving, reasoning or organizational skills. Richard Friedlander, Ph.D., clinical psychologist, evaluated claimant on November 12, 1983. Assessment procedures were the Wechsler Adult Intelligence Scale-Revised, wide range achievement test, spelling section, partial Luria-Nebraska Psychological Battery For Memory Scale, receptive speech scale and a psychological interview. Intellectual assessment on the Wechsler indicated a current full-scale I.Q. of 113, approximately the 80th percentile level of claimant's age group. A verbal I.Q. of 100, 50th percentile level; and a performance I.Q. of 130, the 98th percentile level. Dr. Friedlander noted that claimant experienced cognitive fatigue as well as physical fatigue after a fairly brief period of concerted effort. He appeared to have experienced a decline in his spelling ability, scoring at the 8.7 grade level on a standard spelling achievement test. Claimant's strengths were highly developed visual analysis and integrated skills as well as a keen ability to size up social situations. Dr. Varney reported that as of the examination on July 21, 1986, claimant performed at the bright normal level on the Wechsler verbal scales with a verbal I.Q. of 117, 87th percentile, and in a very superior level on the Wechsler performance scale with a performance I.Q. of 136, 99th percentile. Verbal and nonverbal short-term memory were also far above average. Recent memory and temporal orientation were intact. Word finding was relatively weak while reading and spelling were far above average. Instructural praxis and spatial orientation were intact. Marc E. Hines, M.D., a board certified neurologist, reported that a 24 hour ambulatory EEG performed on September 4, 1986 showed frontal-central focal episodes, very proximal and very focal in character; approximately 18 episodes during sleep and lasting up to twelve to fifteen seconds with focal short and slow episodes with disruption of background rhythm activity. Occasional bursts of focal spike was seen in the same area. ROTHE V. TRAINING & MANAGEMENT Page 15 The doctor's impression was that the EEG was diagnostic of focal epileptiform abnormality in the right frontal-central area. On July 11, 1984, defendants' counsel advised claimant's counsel that Aetna and Denison Job Corp did not authorize medical treatment of claimant by Dr. Horst Blume, Dr. Anderson, or Dr. Myer. On July 30, 1984, P. L. Myer, D.O., advised that he had referred claimant to a Dr. Don Anderson, of Denison, on September 12, 1984 for injuries and problems resulting from his May 25, 1983 injury. On August 3, 1984, D. D. Anderson, D.C., advised Jim Spitsen, Commercial Insurance Division, that he had referred claimant for neurological evaluation to Dr. Blume. On March 12, 1985, Dr. Taylon advised that he had referred claimant to a Dr. Robert Soll, in Denison, and to Dr. Blume. He also indicated he was referring claimant to the Denison Health Center for evaluation. The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS Our first issue is nominally whether claimant is entitled to benefits and the nature and extent of his benefit entitlement. While the parties have stipulated claimant's work injury and his disability are causally related, they have left the issue of the exact nature of claimant's disabling condition undecided. We believe that question must be examined using a causal relationship analysis: The claimant has the burden of proving by a preponderance of the evidence that the injury of May 25, 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. E. 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). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties ROTHE V. TRAINING & MANAGEMENT Page 16 develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the fact finder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1967) A doctor's expertise and board certification also may accord his testimony greater weight. See Reiland v. Palco, Inc., 32 Biennial Report of the Industrial Commissioner. Dec. 1975); Dickey v. ITT Continental Baking Co., 34 Biennial Report of the Industrial Commissioner 89 (Rev. Dec. 1979). Permanent means for an indefinite and undeterminable period. Wallace v. Brotherhood of Locomotive Firemen & Eng'rs, 230 Iowa 1127, 1130, 300 N.W. 322, 324 (1941), citing Gardner v. New England Mut. Life Ins. Co., 218 Iowa 1094, 1104, 254 N.W. 287, 292 (1934). Claimant has a documented and little disputed problem with his right foot for which he wears a metatarsal bar in his shoe. The condition does not result in obvious impairment. Claimant has no medically imposed restrictions on account of it. Hence, we do not believe that it produces significant disability to claimant. Claimant claims dizziness, balance and hearing loss problems. Dr. Chait described claimant's right ear hearing as diminished slightly when compared to the left on January 23r 1984. By January 15, 1985, however Dr. Chait opined that claimant had a zero percent overall hearing handicap. For that reason, we believe that whatever claimant's own perception of his hearing capabilities, the objective evidence does not support a finding that claimant has a significant hearing handicap on account of his work injury. Dr. Chait did opine that claimant has a class 2 or 5 to 10 percent body as a whole impairment on account of his dizziness and reported that under that standard the usual activities of daily living can be performed without assistance but for activities involving personal or public safety such as operating a motor vehicle or riding a bicycle. We find the doctor's opinion substantiates claimant's claim that his dizziness continues to create problems for him. Claimant's other alleged problems relate to his emotional and cognitive functioning. The fighting issues between the parties relate to the nature of and degree of difficulties claimant's alleged deficits in these areas of functioning cause him. At the onset we are disappointed that neither party offered the testimony of claimant's treating neurologist or his treating psychiatrist. The insights of the treating physician because of that physician's ongoing relationship with the claimant are of significant value in assessing problems such as claimant alleges. Dr. Taylon's report alone is not of significant assistance, however. We do not know that as of December 16, 1983, Taylon ROTHE V. TRAINING & MANAGEMENT Page 17 believed claimant's prognosis was good; as of February 12, 1985--some fourteen months later--he felt claimant had no permanent neurological impairment. He interpreted CT scans of August 2, 1983 and February 5, 1985 and an EEG of February 12, 1985 as normal. Hence, claimant's treating physician did not believe claimant had significant neurological damage. Dr. Taylon's reports in evidence to not reflect that he was ever concerned that claimant might have orbital central cortex or frontal lobe damage or partial complex seizures. We find that disturbing given the doctor's long-term relationship with claimant. Taylon, while associated with the Creighton University Medical School Division of Neurosurgery, is not a board certified neurosurgeon, however. Horst Blume, a board certified neurologist who examined claimant only on July 7, 1984, felt claimant had a likely cerebral concussion of areas of left cerebral hemisphere responsible for some speech impairment. He did not report findings of other significant neurological impairment. Dr. Schima, who is associated with the Omaha Neurological Clinic, but whose letterhead does not identify him as board certified in neurology, examined claimant on April 22, 1986. He found claimant's neurological exam unremarkable but for three items including absence of camphor detection bilaterally. He felt claimant had made a good recovery but for disabilities remaining in the cognitive and behavioral spheres. He stated a question of predominantly frontal involvement which could elude detection on standard psychological testing remained given claimant's wife's concern with claimant's personality changes and claimant's performance on psychological testing. Despite Dr. ROTHE V. TRAINING & MANAGEMENT Page 18 Schima's lack of board certification, we give great weight to his opinion as he appears to have thoroughly and objectively examined and evaluated claimant. His opinion supports Dr. Varney's contention that claimant had damage to the orbital central cortex. Claimant's wife's and his employer's testimony are also consistent with Dr. Varney's testimony as regards claimant's primary disability. Claimant apparently now has many symptoms of orbital central cortex damage which were not present prior to his injury. His wife testified to these at hearing and apparently report them to both Dr. Schima and Dr. Varney. Ms. Nolan's testimony as to claimant's preinjury moods and behavior is not sufficient to override claimant's wife's testimony regarding claimant's personality changes given that Mrs. Rothe also reported such changes to Dr. Schima. We, therefore, reject Dr. Sherretts' diagnostic opinion that claimant's primary difficulty is a post-concussion syndrome. We note that acceptance of Dr. Varney's opinion in this matter does not mean we accept his opinion whole handedly. Both Dr. Varney and Dr. Sherretts at times appeared more concerned with promoting the position espoused by the party for whom they were called as a witness than with objectively assisting us in reaching the truth in this matter. For that reason, we have sought more diligently than we might otherwise have had need for more objective evidence supporting their conclusions before adopting any conclusions of either of these two clinical neuropsychologists. We next address the question of whether claimant has partial complex seizures. Dr. Varney so opines stating claimant has 18 to 22 symptoms of such seizures. Dr. Sherretts disagrees stating that hard signs for neurological damage are largely absent on CT scans and that the EEG's are inconsistent for seizures. He later stated, however, that where partial complex seizures are present with temporal lobe problems extreme rage reactions and extreme [changes] in mood and behavior are likely to occur. Dr. Sherretts agreed that the 24 hour ambulatory EEG which Dr. Hines, a board certified neurologist, performed on September 4, 1986 may more readily show seizures if present. The EEG was interpreted as showing focal epileptiform abnormality in the right frontal-central area. Claimant's wife, a credible witness who appeared genuinely concerned with the well-being of her family and not merely with the outcome of this claim, testified as to claimant's spontaneous outbursts in their home and against their nine year old daughter. She also testified claimant is more of a person now than he was prior to going on seizure control medication. Claimant's employer testified to inappropriate incidents at work. Mr. O'Connor also appeared a sincere, truthful individual who would not have manufactured incidents or impressions simply to promote claimant's claim. We find the combination of the above supports a finding that a high probability exists that claimant has partial complex seizures which will likely significantly diminish his well-being if not controlled. Various practitioners have opined that claimant suffers from either a reactive or an organic depression. others have stated that an organic personality syndrome or long-term psychological adoptive mechanism accounts for his clinical symptomatology. Claimant's psychological symptomatology has not responded to treatment with either antidepressant medication or with ROTHE V. TRAINING & MANAGEMENT Page 19 supportive therapy from Dr. Bendorf. Dr. Bendorf opined a very strong likelihood existed that the depression would persist and become a more chronic dysthylic disorder. Dr. Sherretts and Dr. Varney both opined depression is an extremely common reaction to head injury. Claimant's psychological problems at least in part have an organic basis related to his injury and are likely to be a longstanding handicap to him. Having assessed the nature of claimant's functional disabilities, we reach the question of the nature and extent of his benefit entitlement. Initially, we do not believe claimant has made a prima facie showing he is an odd-lot employee. 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 the 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. 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 remains at work despite his difficulties and even if he were to no longer hold his present employment, he has not shown he has sought work and been unable to find any on account of his injury. See Emshoff v. Petroleum Transportation Services ROTHE V. TRAINING & MANAGEMENT Page 20 and Great West Casualty, file number 753723, Appeal Decision filed March 31, 1987. We do not accept Dr. Varney's worse case scenario as the only outcome available to claimant. It is not wholly consistent with our past experience with brain damaged claimants. See section 17A.14.5. Furthermore, disability must be judged on claimant's present circumstances. Dr. Varney asks us to project into the future. That we may not and will not do. Should claimant's circumstances change significantly, review-reopening of his claim is available. Similarly, Dr. Varney's opinion that claimant is 100 percent disabled appears to include more than a functional rating of claimant; it appears to reflect Dr. Varney's belief that claimant, at best, can be made comfortable but is otherwise mentally inert. Likewise, claimant has not shown he is otherwise totally disabled at this time. For workmen's (sic) compensation purposes total disability does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his [sic] mentality and attainments could do. Franzen v. Blakley, 155 Neb. 621, 51 N.W.3d 833 (1952). Total and permanent disability contemplates the inability of the workman (sic) to perform any work for which he (sic) has the experience or capacity to perform. Shaw v. Gooch Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 (1981). 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 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; ROTHE V. TRAINING & MANAGEMENT Page 21 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). Karen Stricklett, a certified rehabilitation counselor, testified to a number of positions she believes claimant could hold. While Ms. Stricklett had not expressly evaluated the Denison, Iowa job market, we do not believe that job market could differ so significantly from the job market in other small towns in Iowa and Nebraska with which Ms. Stricklett is familiar as to seriously discredit her conclusions. Likewise, we agree that claimant because of either his dizziness or his likely partial complex seizures would have difficulty driving. We do not find that precludes him from all employment in the Denison environs, however. Entry level positions such as Ms. Stricklett outlined might well be available to claimant in Denison itself. We do not believe claimant's foot injury precludes his walking modest distances to employment. Likewise, claimant has not shown car-pooling to jobs in the surrounding area is not a possibility for him. His handicaps prevent his driving, but not his riding in a car. Claimant.nevertheless/has significant disabilities for a younger worker. He has a 5 to 10 percent body as a whole impairment on account of is dizziness/balance problems as well as impairment from the organic and psychological problems outline above. While we reject Dr. Varney's 100 percent disability rating, claimant has significant symptoms and suffers significant handicaps on account of his diagnosed organic and depressive difficulties. These already have a serious impact on his ability to enter into life activities and maintain employment. They may well decrease his ability to remain employed in the future. Indeed, claimant and his wife both appear highly motivated to develop and maintain claimant's optimum employment potential whatever that may be. Claimant appears to have had a supportive and tolerant employer. The evidence suggests this is not a situation which will be maintained indefinitely in the future, however. Claimant is a bright individual who has consistently performed very well on intelligence testing. His cognitive ROTHE V. TRAINING & MANAGEMENT Page 22 deficits include his word finding difficulties and his difficulty with simple decision making as demonstrated on the Tinker-toy test. He may, therefore, require greater direction or overt instruction, either orally or verbally, than would an individual without brain damage. We do not believe that necessarily precludes his performing the jobs Ms. Stricklett believed were now available to him; nor do we believe those handicaps preclude claimant from attempting retraining for positions Ms. Stricklett believed claimant might be able to perform with retraining. We note defendants have not attempted any form of head injury rehabilitation with claimant. They did return him to work, however, and cannot fairly be burdened with the fact that claimant chose to end that employment and seek other work. Claimant's earnings now apparently exceed his earnings when injured. Having considered all factors, we believe claimant has sustained a loss of earning capacity of 65 percent. Claimant seeks payment of medical costs under section 85.27. We note at the onset that our analysis of this issue is made more difficult by the fact that little evidence relating to claimant's alleged medical costs is available to us. Exhibit 46, claimant's handwritten compilation of alleged medical and medical mileage costs, was not timely served and, therefore, was inadmissible. Additionally, little other evidence as regards medical care or as regards costs of medical services was placed in the record. The section requires the employer to provide reasonable and necessary medical care; it allows the employer to select the care provider; and provides claimant with a method by which claimant may ROTHE V. TRAINING & MANAGEMENT Page 23 petition for alternate care. Claimant may seek other care of his own accord in an emergency, however. Claimant testified his treating physician, Dr. Taylon, referred him to Horst Blume, M.D. Dr. Taylon concurs and also apparently referred claimant to a Dr. Robert Soll and to the Denison Health Center. Dr. Taylon was claimant's authorized treating physician. Claimant's referral by a treating physician to another care provider is generally considered authorized care unless the employer/insurer otherwise advises claimant. Hence, claimant is entitled to payment of costs incurred with Dr. Soll and the Denison Health Center. Claimant is also entitled to payment of any costs incurred with Dr. Blume until defendants advised claimant's counsel on July 11, 1984 that medical treatment with Dr. Blume was not authorized. No evidence exists that care of Dr. Myer or Anderson was ever authorized. Payment of costs for their care is disallowed unless the doctors are associated with the Denison Health Clinic in which case care to July 11, 1984 is compensable. Payment of costs for their care is disallowed. Likewise, claimant testified he saw Dr. Hamsa, Dr. Schima, and Dr. Varney on his own. While claimant may have benefited from their care, we find no evidence claimant attempted to communicate his need or desire to seek that care to defendants. Defendants, therefore, were not able to either permit such care or attempt to work with claimant to determine other appropriate care. Defendants, therefore, are not liable for costs of care those individuals provided. We are unable to determine whether Dr. Joneson could appropriately refer claimant to Dr. Bendorf. Therefore, any costs outstanding with Dr. Bendorf are also disallowed. FINDINGS OF FACT Claimant sustained an injury which arose out of and in the course of his employment on May 25, 1983 when injured in a motorcycle accident while traveling at a low speed. Claimant landed on his head; claimant was unconscious for four days following his injury but was discharged from the hospital on the twelfth day following his injury. Claimant had injury-related slightly diminished hearing in his right ear when compared to his left, but has no binaural hearing handicap. Claimant has injury-related problems with balance and dizziness which result in a 5 to 10 percent body as a whole permanent partial impairment and which would interfere in activities of daily living related to personal or public safety such as riding a bicycle or driving a car, but which do not otherwise require that claimant have assistance in performing the normal activities of daily living. Claimant has inappropriate, spontaneous episodes of rage at home and at work. Claimant has minimal word finding deficit as well as other minimal cognitive difficulties. ROTHE V. TRAINING & MANAGEMENT Page 24 Claimant has superior intellectual ability as evidenced on general post-injury intelligence tests. Claimant has almost daily headaches. Claimant has numerous symptoms often associated with damage to the orbital central cortex which symptoms were not present prior to claimant's injury. Dr'. Schimals objective observations and opinions support Dr. Varney's opinion that claimant has damage to the orbital central cortex. Dr. Hines' EEG demonstrates focal epileptiform abnormality in the right frontal central area. Claimant's rage reactions are consistent with partial complex seizures where temporal lobe problems exist. Claimant likely has partial complex seizures. A partial complex seizure disorder would also prevent claimant from driving a motor vehicle. Claimant has psychological difficulties related to his injury resulting in a depressed and apathic affect as well as emotional liability and temper loss which difficulties have not responded to treatment with antidepressant drugs and supportive therapy. Claimant's psychological difficulties are likely in part organic and permanent. Claimant is 31 and a high school graduate. Claimant is now employed but may be let go from his present job. Claimant has interests and skills and intellectual capacities which would permit retraining for other occupations. Claimant has interests and skills and intellectual capacities which would permit him to now engage in entry level employment beyond his present job. Claimant's earnings now exceed his earnings when injured. Claimant returned to his Denison Job Corp job and voluntarily left that job for his present job. Claimant and his spouse are highly motivated for claimant to remain employed. Claimant has not sought other work in Denison or its environs. Claimant has not demonstrated that difficulties he may face as regards transportation to work are unreasonable. ROTHE V. TRAINING & MANAGEMENT Page 25 Claimant's functional impairment on account of his brain injury, probable partial complex, seizure disorder, and psychological difficulties is severe, but does not result in total disablement. Claimant has a loss of earning capacity of 65 percent. Dr. Taylon referred claimant to Dr. Blume, Dr. Soll and the Denison Health Center. On July 11, 1984, defendants advised claimant through his counsel that care from Dr. Blume, Dr. Myer, and Dr. Anderson was not authorized. Care from Dr. Hasma, Dr. Schima, and Dr. Varney was not authorized and was not sought in an emergency. Whether Dr. Bensdorf's care was appropriately authorized is not determinable. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to permanent partial disability from his May 25, 1983 injury of sixty-five percent (65%). Claimant is entitled to payment of medical costs with Dr. Blume through July 11, 1984 and to payment of medical costs with Dr. Soll and the Denison Health Clinic including care provided by Dr. Myer and Dr. Anderson to July 11, 1984. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability for three hundred twenty-five (325) weeks at the rate of one hundred thirty-two and 45/100 dollars ($132.45). Defendants pay claimant costs of medical care with Dr. Blume through July 11, 1984 and costs of medical care with Dr. Soll and with the Denison Health Clinic including any care with the clinic that Dr. Myer and Dr. Andrson provided to July 11, 1984. 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. Defendants file claim activity reports as required by the agency. Signed and filed this 28th day of May, 1987. ROTHE V. TRAINING & MANAGEMENT Page 26 Copies to: Mr. Colin J. McCullough Attorney at Law 701 W., Main Street Sac City, Iowa 50583 Mr. Gregory Barntsen Attorney at Law P.O. Box 249 Council Bluffs, Iowa 51502 1108.50; 4100; 1803 1804; 2500 Filed 5-28-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONALD W. ROTHE, Claimant, File No. 735112 VS. TRAINING & MANAGEMENT, INC.,/ A R B I T R A T I 0 N d/b/a THE DENISON JOB CORPS, D E C I S I 0 N Employer, and THE AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendant. _________________________________________________________________ 1108.50; 4100; 1803; 1804; 2500 Claimant found to have damage to the orbital central cortex (frontal and temporal brain damage) with probable partial complex seizures. Claimant remained working. While considerable evidence suggested his current job was in jeopardy, claimant had yet neither had to attempt to seek other work or attempt retraining. Likewise, claimant's neuropsychologist's "worse case" scenario as to claimant's prognosis was rejected. Claimant's contention that he was currently an odd-lot employee was rejected. Sixty-five percent permanent partial disability awarded. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RONALD ROTHE, : : Claimant, : : vs. : File No. 735112 : TRAINING & MANAGEMENT, INC., : R E V I E W - d/b/a THE DENISON JOB CORPS, : : R E O P E N I N G Employer, : : D E C I S I O N and : : THE AETNA CASUALTY AND SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in review-reopening upon claimant's petition filed November 5, 1987. Claimant sustained injuries arising out of and in the course of his employment with defendant Training & Management, Inc., d/b/a The Denison Job Corps, on May 25, 1983 when he was thrown from a motorcycle and suffered a head injury. Following a hearing on February 18, 1987, Deputy Industrial Commissioner Helenjean Walleser filed an Arbitration Decision on May 28 of that year finding that claimant had sustained a 65 percent industrial disability to the body as a whole and awarding benefits under the Iowa Workers' Compensation Act. Claimant now alleges that he has suffered a deleterious change in condition since the Arbitration Decision and seeks additional benefits, claiming that he is now permanently and totally disabled. A hearing was thereafter held in Sioux City, Iowa, on December 14, 1989. The record consists of joint exhibits 1 through 6 and 9 through 11 and the testimony of claimant and his wife, Pat Rothe. issues Pursuant to the prehearing report, the following issues are presented for resolution: whether the work injury is causally related to claimant's current condition of ill being; whether claimant is entitled to additional temporary or permanent disability benefits and the commencement date thereof; the extent of claimant's entitlement to medical benefits (it being stipulated that medical services providers would testify in the absence of contrary evidence that fees were reasonable and necessary, but the parties are in dispute as to whether those expenses were incurred for Page 2 reasonable and necessary medical treatment, whether they were causally related to the work injury or authorized by defendants). With respect to the extent of his permanent disability, claimant also asserts that he is an odd-lot employee under the theory adopted by Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: The earlier Arbitration Decision in this case has become final for want of appeal and establishes that as of February 18, 1987 claimant had work injury related problems with balance and dizziness resulting in a 5-10 percent body as a whole impairment which interfered in certain activities such as riding a bicycle or driving a car, but which did not otherwise require him to have assistance in performing the normal activities of daily life; that claimant manifested inappropriate and spontaneous episodes of rage, both at home and at work; that he had minimal cognitive difficulties, but superior intellectual ability; that he suffered almost daily headaches; claimant has symptoms associated with orbital central cortex damage, focal epileptiform abnormality in the right frontal central area and probably has had partial complex seizures which would prevent him from driving a motor vehicle. Claimant was also found to have psychological difficulties related to the injury resulting in a depressed and apathetic affect, emotional lability and temper loss. He was employed at that time as the manager of a retail electronics and video rental business, but his job was in jeopardy due to deteriorating performance. Claimant's skills, intellectual capacities and interests qualified him for retraining and to engage in various entry level employment beyond his current position. Claimant and his wife were highly motivated for him to retain employment, but he had not sought other work in his hometown of Denison or its environs. Unfortunately, claimant's condition has worsened since February 18, 1987. In approximately April, he was discharged from his position as a retail store manager because of the deteriorating job performance testified to by the owner of the business, James O'Connor. Mr. O'Connor testified at the arbitration hearing that claimant was in danger of losing his job due to clumsiness and subsequent damage, that he could not keep up with his work, could not train employees and due to rudeness, could not work with customers at a retail level (he had at that time received approximately six complaints of rudeness from coworkers and customers). Claimant misplaced items and was unable to remember office memoranda. O'Connor hoped that claimant would quit the job of his own volition, but in any event discharged him around April 1, shortly following the arbitration hearing. Claimant has actively sought rehabilitative and job placement services, but has failed to land employment since Page 3 this discharge. In July, 1987, claimant met with Phil Osborne of the Denison Job Service office. Phil Osborne is a vocational rehabilitation counselor employed by the Iowa Division of Vocational Rehabilitation Services. Osborne referred claimant for psychiatric consultation to Dr. Karayusuf, who reported on August 8, 1987 that claimant's history of brain injury suggested that his behavioral problems were a consequence of injury to the brain and his resultant erratic explosiveness. Prognosis was poor. Dr. Karayusuf opined that claimant's history of seizures rendered him unable to work at any job involving machinery or to work at heights or, in fact, to operate in any task in a competitive fashion. Dr. Karayusuf deemed claimant unable to interact even at a very rudimentary level with coworkers and supervisors on any sustained basis and was at most a candidate for very sheltered work, but only in an environment where the staff was experienced in working with brain-injured individuals and prepared to deal with erratic explosive behavior. Osborne thereupon forwarded claimant's records and an application to the Iowa State Vocational Rehabilitation facility in Des Moines. Peggy Davison, supervisor of counseling and guidance for that facility, reported on September 25, 1987 that the case file had been reviewed by psychiatric consultant Dr. Jean Glissman, and that her conclusions paralleled those of Dr. Karayusuf. The only recommendation the vocational rehabilitation facility was "able to offer is that the client be encouraged to apply for Social Security disability benefits on the basis that he is unable to obtain and sustain substantial gainful employment in the competitive market." The case file was returned to Osborne, who closed the file on November 9, 1987 as a "status 08" on the basis that claimant was not able to work. Claimant thereupon applied for and received Social Security disability benefits. Although claimant has continued to seek work through Job Service of Iowa, he has never been referred to a potential employer. Defendants subsequently sent claimant to a three-day vocational evaluation from February 20 through February 22, 1989 by Rehabilitation Professionals, Inc. Deborah Determan reported on May 15, 1989 that claimant was able to work in a contained, structured environment and to remain on tasks that were repetitive and predictable in nature. She suggested that a review of the availability of services in the Denison area be made to determine programming that might be available with respect to a structured orthopaedic program to improve endurance and strength and that after claimant had an opportunity to begin participation in a physical therapy program and counseling, a work site should be developed and job coaching provided as needed (a "job coach" would enter the work site, learn the required activities to systematically approach the task and train claimant on-site as to required job activities, along with Page 4 functioning as a liaison and troubleshooter to coordinate work site activities). Claimant also underwent vocational evaluation at Goodwill Industries Rehabilitation Center on May 22 and 24 and June 26, 1989. Sandi Rollison, C.V.E., found that claimant had certain vocational strengths (vision, size discrimination, shape discrimination, color discrimination, problem solving, visual memory, reasoning ability, talking/ persuasive, instruction following and general educational skills) and vocational deficits (learning new tasks, motor coordination, fine assembly as related to finger dexterity, spatial aptitude, form perception, work tolerance, initiative, emotional stability, environmental restrictions and transportation). While finding that claimant showed motivation to return to work, Ms. Rollison felt that in order to accomplish that goal claimant would need to receive vocational rehabilitation services through the state or a private organization. She suggested that claimant's job tasks should be routine and would need to be over-learned, that he should avoid stressful or unstructured work situations and should avoid any jobs involving substantial contact with the public. On July 13, 1989, Ms. Rollison added an addendum to her report as follows: (1) It is my opinion that without rehabilitation services, (work-adjustment program or job coach) Mr. Rothe is not competitively employable. (2) If Mr. Rothe is given the opportunity to participate in vocational rehabilitation services, it would be very difficult to predict a date when he would become competitively employable given the factors of his injury, residual functioning, and the amount of time passed without rehabilitation services. Claimant and Pat Rothe testified of extensive symptomatology at the arbitration hearing. Both testified in this proceeding that his condition had deteriorated substantially since then. In particular, Pat Rothe credibly testified that claimant's sense of balance is much worse (especially on stairs or while turning), that his stamina and persistence has deteriorated, that his mental state in general is much worse (bouts of depression up to 6-8 weeks), loss of attention, energy and initiative, that social skills have diminished (claimant now will sometimes not go out at all, is much less verbal and typically does not enter into conversation), and that fits of rage are much worse and more frequent so as to frighten other family members (claimant has raised his hand at and even kicked his daughter). Claimant's headaches are now of much greater intensity; Pat Rothe recognizes these when claimant puts himself "in a box" and will not allow himself to be touched. Whereas claimant was able to function in his normal daily life prior to the arbitration hearing, he now cannot. He takes five or six psychoactive medications each day pursuant to a list prepared by Pat Rothe (who also programs claimant's alarm wrist watch so that he can follow the list). Claimant Page 5 testified that he now finds it difficult to even follow general conversation due to his inability to concentrate. Although he likes to socialize, he finds it more and more difficult to initiate communication with others. Claimant has been evaluated by a number of psychiatric and psychological practitioners since the previous arbitration hearing. Nils Varney, Ph.D., a licensed psychologist, wrote on October 11, 1987 that claimant was losing ground as compared to 16 months before and that his IQ had dropped from 136 to 125 (a decline outside the range of normal day-to-day variation). Dr. Varney had considered claimant essentially incapable of employment before the arbitration hearing. Claimant was also evaluated by R. L. Bendixen, M.D., in September, 1987. Dr. Bendixen's impression was of impaired mental functioning and equilibrium secondary to head trauma and recurrent frequent and severe headaches. He opined that claimant was "legitimately disabled because of his residual of head injury" and doubted that he would be able to find any useful form of employment. On November 9, 1987, neurologist David Friedgood, D.O., wrote for purposes of Social Security disability determination that claimant's history of increasing problem with seizures was quite unusual for a seizure disorder, but that claimant had a secondary depression which he was certain contributed to his disability. He reported that claimant found himself unable to function in a reasonable fashion or to keep a job. A Social Security disability evaluation was also performed by Vicky L. Moody, D.O., a psychiatrist. She concluded that claimant intermittently had the ability to maintain attention required to perform simple repetitive tasks, but it was doubtful that he could do this consistently. "I also do not believe that the patient is probably capable of withstanding the stress and pressures in a competitive job situation given his fluctuations in the ability of function. His history is consistent with problems even in a situation with a very understanding and supportive boss." On the other hand, neurologist Ignacio Rodriguez, M.D., wrote on November 2, 1989 that claimant had not experienced any worsening in his medical condition in the past three years and that in all medical likelihood, did not suffer from a seizure disorder. Dr. Rodriguez believed that claimant's current performance was artificially hampered by the administration of unnecessary medications. Dr. Rodriguez has never met claimant, but prepared a comprehensive report based on his review of medical records in the case (which are voluminous). He anticipated that claimant would see significant clinical improvement and a return to a functional state once his medication regimen was simplified. Professor of Neurology Thoru Yamada, M.D., of the University of Iowa Hospitals and Clinics, concurred with Dr. Rodriguez's opinion and believed that electro-encephalogram testing did not show true epileptiform Page 6 activity. Claimant's primary treating physician is Marc E. Hines, M.D. On January 23, 1987, just prior to the arbitration hearing, Dr. Hines wrote that although claimant was (then) able to work, he was doing that at great personal cost to himself and that his thinking was impaired, interrupting his work during periods of the day and sometimes for days at a time. He thought then that it might not be possible for Mr. Rothe to continue in his current employment. While chart notes reflect that Dr. Hines has continued to treat and prescribe for claimant, the record does not indicate any more recent opinion as to medical limitations. Exhibit 10 sets forth certain medical costs and mileage, all of which is directly related to residual effects of the work injury. conclusions of law Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Although there is greatly conflicting evidence in this record, claimant has shown more than a mere difference of opinion of experts as to the degree of his disability. He has established a substantial worsening of his condition not contemplated at the time of the first award. In this case, the change is both economic and medical. The testimony of claimant, and especially that of his wife, establishes that his ability to function on a day-to-day basis has dramatically declined even from the diminished level that existed on February 18, 1987. Although it was perhaps foreseeable that claimant might lose his job as the manager of a video rental outlet at the time of the hearing, it is nonetheless true that he was employed at that time, and at a Page 7 higher wage than was the case when he was injured. Now, claimant has lost that job through a deterioration in his job performance and finds himself unable to obtain job referrals or even rehabilitation assistance from Job Service of Iowa or the Iowa Division of Rehabilitative Services. Claimant is motivated to work, but his depression, lack of ability to concentrate, forgetfulness, clumsiness, moodiness and inability to withstand stress all conspire to render him incapable of holding regular employment. The more persuasive medical evidence is that claimant is unable to return to any remunerative employment other than, perhaps, the most sheltered and repetitive work. Defendants are of the view that claimant's disability is in large part caused by a misdiagnosis and resultant mismedication. Given the conflicting evidence in this record, this writer is unwilling to gamble with claimant's life by ordering a change of medical care. Permanent disability does not necessarily require proof of absolute perpetuity, but is a disability that lasts for an indefinite and indeterminable period. Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941). If at some later time claimant's physicians elect a change in medication that proves salutary, claimant's motivation and intelligence (and that of his wife) is such as to no doubt inspire him to a return to productive employment. Review-reopening may then be available upon defendants' petition. However, on the current state of the record, it must be held that there is no foreseeable likelihood that claimant will be able to obtain or keep any steady and remunerative employment. He is permanently and totally disabled. Permanent total disability benefits shall be payable from the expiration of the permanent partial disability benefits awarded in the original Arbitration Decision. Defendants shall also pay medical expenses set forth in exhibit 10. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant permanent total disability benefits from the expiration of permanent partial disability benefits ordered in the arbitration decision dated May 28, 1987 at the stipulated rate of one hundred thirty-two and 45/100 dollars ($132.45) per week and continuing during such time as claimant remains permanently and totally disabled. Defendants shall pay medical bills totalling four thousand seven hundred sixty-three and 17/100 dollars ($4,763.17) as set forth in exhibit 10 and mileage expenses totalling three hundred fifty-one and 54/100 dollars ($351.54) (one thousand six hundred seventy-four (1,674) miles at twenty-one cents ($.21) per mile). All accrued benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants Page 8 pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Colin J. McCullough Attorney at Law 701 West Main Street Sac City, Iowa 50583 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 5-1804 Filed December 6, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : RONALD ROTHE, : : Claimant, : : vs. : File No. 735112 : TRAINING & MANAGEMENT, INC., : R E V I E W - d/b/a THE DENISON JOB CORPS, : : R E O P E N I N G Employer, : : D E C I S I O N and : : THE AETNA CASUALTY AND SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1804 In review-reopening, head injured claimant was found permanently and totally disabled based on medical and vocational rehabilitation evidence that he was unable to hold regular competitive employment due to depression, lack of ability to concentrate, forgetfulness, clumsiness, moodiness and inability to withstand stress. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES T. HOSKINS, Claimant, FILE NOS. 735118 & 792721 VS. A R B I T R A T I 0 N CATERPILLAR TRACTOR CO., D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by James T. Hoskins, claimant, against Caterpillar Tractor Company, employer and self-insured defendant, for benefits as a result of an injury which occurred on May 27, 1983 and an injury which occurred on August 23, 1983. A hearing was held in Davenport, Iowa on January 8, 1987 and the case was fully submitted at the close of the hearing. The record consists of the testimony of James T. Hoskins (claimant), claimant's exhibits 1 through 18 and defendant's exhibits A through KK. Both parties were requested to file a brief but neither party filed a brief. Claimant, however, did provide a transcript of the hearing on his own volition. DATE CORRECTION Although the petition on claim file 792721 alleges an injury date of August 25, 1983, the parties agreed at the hearing that this injury date was probably August 23, 1983 based upon the testimony of claimant. Therefore, that date will be used as the injury date on file number 792721 instead of August 25, 1983. PRELIMINARY MATTER Defendant objected to claimant's exhibit 16 for the reason that it was not timely served as provided in the hearing assignment order. Paragraph six of the hearing assignment order provides that all written exhibits not previously served shall be served upon opposing parties no later than 30 days following the signing and filing of this order. The order was signed and filed July 21, 1986. Thirty days later would be August 20, 1986. The case was originally scheduled to be heard on October 23, 1986. However, on motion of defendant which was not resisted, the hearing was continued until January 8, 1987. Claimant's exhibit 16 is a written letter from a doctor dated December 4, 1986. It was served on defendant a few days later and within the 10 day rule of Division of Industrial Services Rule 343-4.17. Defendant's counsel asserted prejudice. He contended HOSKINS V. CATERPILLAR TRACTOR CO. Page 2 that he relied on this rule to exclude this document. Otherwise he probably would have deposed this doctor prior to the hearing (Transcript, page 17). Since: (1) the letter was not even generated until more than three months after the August 20, 1986 deadline; (2) since defendant only received the exhibit approximately 30 days prior to the hearing; and, (3) since this 30 day period covered the Christmas and New Year holiday seasons, then defendant's objection is sustained. Claimant's exhibit 16 is excluded from evidence, but remains in the file as an offer of proof. STIPULATIONS The parties stipulated to the following matters: That an employer/employee relationship existed between claimant and employer at the time of the alleged injuries. That claimant sustained an injury on May 27, 1983 which arose out of and in the course of his employment with employer. That the tunes off work for which claimant now seeks either temporary total disability or healing period benefits are May 31, 1983 to June 8, 1983; June 16, 1983 to July 3, 1983; and, August 23, 1983 to September 18, 1983. That the rate of weekly compensation in the event of an award of weekly benefits is $304.14 per week. That all requested medical benefits have been or will be paid. That defendant is entitled to a credit under Iowa Code section 85.38(2) for disability income benefits paid under an employee non-occupational group plan for 23 weeks and four days in the total amount of $5,300.00 That defendant is entitled to a credit for workers' compensation benefits previously paid for seven and six-sevenths weeks of compensation at the rate of $304.14 for the three periods of time off work stipulated to above. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on August 23, 1983 which arose out of and in the course of employment with employer. Whether the injury of May 27, 1983 and the alleged injury of August 23, 1983 were the cause of either temporary or permanent disability. Whether claimant is entitled to temporary or permanent HOSKINS V. CATERPILLAR TRACTOR CO. Page 3 disability benefits and, if so, the nature and extent of benefits. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence: Claimant is approximately 32 years old. He graduated from high school. In prior employment he worked three and one-half years as a machine operator and as a lead man. Then he started to work for employer in 1972 as a mill operator. About a year later he became a tape machine operator and has done that job for approximately 13 years. After swimming and diving extensively on Saturday, August 7, 1982, claimant experienced low back pain on Sunday, August 8, 1982. It worsened to the point where he was unable to stand or walk because of pain and he went to the hospital on Monday, August 9, 1982. Claimant denied striking anything while diving and he denied any radicular pain. The emergency room nurse noted that the pain did not radiate (Exhibit 3). X-rays showed no abnormalities (Ex. 10). Claimant was admitted to the hospital on August 9, 1982 with a diagnosis of severe low back pain (Ex. 3). Michael Gimbel, M.D., examined claimant throughly and his neurologic and orthopedic examination was essentially normal. Dr. Gimbel diagnosed probable bilateral paraspinous muscle spasm and strain. He said he doubted that there was herniated intervertebral disc disease (Ex. 5). After medication and physical therapy claimant was discharged by his personal physician, William McCabe, M.D., six days later on August 15, 1982, significantly improved, with a final diagnosis of acute traumatic lumbar myocitis (Ex. 4). Claimant testified that he returned to work with no restrictions and worked approximately five weeks. Then the plant was out on strike for about seven and one-half months which would be approximately from October of 1982 until May of 1983. During the strike claimant did remodeling work and put on a roof with a friend (Tr., pp. 38-41) . Then on May 27, 1983, shortly after returning to work, claimant was bending over and was lifting a 30 pound part out of a tub when he felt a sharp pain in his lower back. He had never experienced a pain like this before (Tr., pp. 41 & 42). Claimant reported this and he was seen by J. Donahue, M.D., the in-house plant physician who treated all employees for both occupational and non-occupational medical problems as an employee fringe benefit. Dr. Donahue's clinical notes mention two prior incidents before the injury of May 27, 1983. Back on February 18, 1977, claimant reported that he was standing at his machine using a hoist, not lifting, and felt a sudden pain in his left back. There was no history of trauma, slip or twist. In the margin is the notation "doubt occupational relation.O Dr. Donahue also noted the non-occupational diving incident by a note dated August 30, 1982. He noted that claimant could do no lifting or pushing after that incident. Then on May 27, 1983, Dr. Donahue recorded HOSKINS V. CATERPILLAR TRACTOR CO. Page 4 that claimant encountered left lumbar muscle spasm and backache while running a radial drill (Ex. B, p. 1). This injury is file number 735118. Claimant was off work from May 31, 1983 to June 8, 1983 and again from June 16, 1983 to July 3, 1983 as a result of this injury. These dates were stipulated to by the parties in the stipulations. During the same period claimant was also complaining of chest pain under his ribs. Dr. Donahue commented that claimant appeared anxious and manifested anxiety symptoms (Ex. B, p. 2). Claimant testified that on August 23, 1983, he was running a tape machine. He was putting a 30 to 40 pound steel part called a swinglink into an inspection fixture. He felt a sharp pain in his lower back and his back just gave out. This injury is file number 792721. This pain was more severe than the May 27, 1982 pain because it was harder for him to walk (Tr., pp. 45 & 46). Claimant testified that he also had pain and numbness in his left leg for the first time after this injury (Tr., p. 82). Dr. Donahue made a notation of seeing claimant for this incident but his note is dated August 22, 1983. The company doctor recorded that claimant was lifting which resulted in acute spasm on the right side in the lumbosacral area. Dr. Donahue did not mention any left leg radicular pain. However, on August 29, 1987, Dr. Donahue wrote that claimant was still tender in the lumbosacral area and he sent claimant to see John E. Sinning, M.D., for an orthopedic consultation (Ex. B, p. 3). Dr. Sinning reported that he saw claimant on August 29, 1983. Claimant was concerned about why this happened to him and whether the August 23, 1983 incident was related to the May 27, 1983 incident and the diving incident on August 7, 1982. Claimant's physical examination revealed tenderness at the lumbosacral and sacroiliac levels. Claimant had difficulty straightening up after flexion and hyperextension hurt him. Five x-rays of the lumbosacral spine showed no abnormalities, normal disc space relationships, no hypertrophic changes, and no developmental abnormalities. Dr. SinningOs stated diagnosis was hyperextension back strain. He added that he told claimant he had muscle strain and expected a full recovery in the next month. He expected no more recurrence. He thought the last incident of August 23, 1983 was happenstance. Dr. Sinning prescribed an exercise program under the direction of Dr. Donahue (Ex. 17, EE & FF). Claimant was off work from August 23, 1983 to September 18, 1983 as shown in the stipulations. He worked then from September 19, 1983 to September 23, 1983. Then on the weekend of September 24, 1983 and September 25, 1983 he was home playing cards and encountered all kinds of pain in his back. He saw Dr. Donahue on Monday, September 26, 1983. Dr. Donahue commented that claimant's back had tightened up Saturday evening while sitting in a chair playing cards; however, claimant had no known injury that day. This time the discomfort was on the left side. Dr. Donahue continued to diagnose muscle spasm and anxiety (Ex. B, p. 4). Dr. McCabe ordered a CT scan performed on September 29, 1983 HOSKINS V. CATERPILLAR TRACTOR CO. Page 5 (Ex. 6). E. L. Johnson, M.D., reported that he examined the CT scan of claimant's lumbar spine which was taken on account of back pain. He found a hypertrophic spur extending cephalad and posteriorly from the body of S-1 impinging on the left nerve root of S-1 (Ex. 7). Dr. McCabe then referred claimant to Henry Honda, M.D., a neurosurgeon (Tr., pp. 51 & 52). Dr. Honda examined claimant on October 10, 1983. He admitted claimant for a myelogram on October 12, 1983 (Ex. Q). Dr. Honda reported that the myelogram was essentially negative, but comparing the CT scan he did expect a disc. Cross-wise the disc seemed located in the axilla of the nerve root (Ex. 11). A second CT scan, this one performed by Dr. Honda, confirmed a large enough disc to complicate his back pain and occasional left leg pain (Ex. R). On October 14, 1983, Dr. Honda performed a hemilaminectomy of L-5 on the left side. He found a large bulging disc which was calcified compressing the nerve roots anteriorly and medially. He excised and removed this hard bulging disc material eliminating the pressure on the nerve root (Ex. 12). Claimant was released to return to work on January 23, 1984 with restrictions not to lift more than 40 pounds and to avoid excessive bending and stretching (Ex. U, V & W). On January 18, 1984, Dr. Honda wrote: The patient claims that he incurred his back injury at work and went to the Medical Department three or four times and this is well-documented in the records and was considered as compensation. If there is record that he had an injury, I am sure we will have to depend on that and he most likely injured his back at work which then will be compensation. (Ex. U). Dr. Honda again examined and evaluated claimant for an impairment rating on December 1, 1986 at the request of claimant's counsel. Claimant had no loss of range of motion, no weakness, no loss of sensation and no pain. Dr. Honda concluded by saying that claimant was doing extremely well at his current job. He said it was difficult to award a percentage of impairment and did not give a percentage impairment rating (Ex. 14). As an addendum to this report he added the following: This patient apparently had a diving accident in August of 1982. The patient developed back pain but apparently got better. In May of 1983 he was injured at work and again aggravated the condition in August of 1983. It is possible that the work injury aggravated his condition which would lead to laminectomy and excision of disc. The patient had excellent results and he has no problems since the surgery and returned to work. He should not lift heavy objects. (Ex. 15). Claimant testified that even though the parts that he was handling at the time of his two injuries were not heavy, he did move larger parts up to 1,500 pounds with a hoist. These were hard to push even with the hoist (Tr., p. 56) and it bothered him to push them around (Tr., pp. 57, 62 & 63). Claimant testified that he did not apply for higher paying jobs of $.30 per hour HOSKINS V. CATERPILLAR TRACTOR CO. Page 6 more because of his lifting restrictions (Tr., p. 58). Claimant said he could do about the same things after the surgery as before the surgery, but he gets tired easier at work and he has to schedule less activities on his duties at home (Tr., pp. 59-61, 63-65). However, he had to reduce his athletic activities of racketball and softball (Tr., pp. 60 & 65). Claimant testified that he thought he injured his back on the job but he had some doubts about it (Tr., pp. 92, 93, 98 & 114). Claimant completed and signed a weekly disability benefits form (Ex. KK) on October 11, 1983 which stated that he had been disabled because of sickness or injury off and on since May 27, 1983 and had returned to work three times. In reply to question 6, "was an accidental injury involved" claimant answered, "maybe". In providing the date and place of accident claimant entered, "May 27, 1983" and "Caterpillar (maybe)." In answer to question 6d, "did accident happen while you were on the job at Caterpillar" claimant printed, "maybe." Claimant printed in the following words with his own hand on the form, "I'm not sure if work related!" (Ex. KK). APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the, evidence that lie received an injury on August 23, 1983 which arose out of and in the course of his employment. 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). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 27, 1983 and August 23, 1983 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1966). Lindahl v. L. 0 Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility 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, 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 contrition or disability that is aggravated, accelerated, worsened or lighted HOSKINS V. CATERPILLAR TRACTOR CO. Page 7 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). Claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury on August 23, 1983. Claimant testified that he felt a sharp pain in his back and his back just gave out when he was putting a 30 to 40 pound steel part called a swinglink into an inspection fixture. Dr. Donahue recorded an office visit on August 22, 1983 in which he reported that claimant was lifting and experienced acute back spasm on the right side. Claimant could have been in error one day when he said the injury occurred on August 23, 1983. Claimant had a great deal of difficulty recollecting many facts accurately and defense counsel demonstrated that claimant's recollection was incorrect on a number of points. It is also possible that the doctor's notes could be in error by one day. In any event the attorneys were satisfied to treat the injury date as August 23, 1983 in their questioning of the witness. Furthermore, there is no evidence that claimant did not receive such an injury as he described on or about this date. Therefore, claimant's testimony is uncontroverted. Moreover, it is corroborated by Dr. Donahue and Dr. Sinning who also saw claimant for this injury. Therefore, it is found that claimant did receive an injury which arose out of and in the course of his employment with employer on August 23 , 1983. It was stipulated that claimant was temporarily disabled HOSKINS V. CATERPILLAR TRACTOR CO. Page 8 from August 23, 1983 to September 18, 1983. Therefore, claimant is entitled to and was paid temporary disability benefits for this period of time prior to hearing. Claimant did not sustain the burden of proof by a preponderance of the evidence that either the injury of May 27, 1983 or the injury of August 23, 1983 was the cause of any permanent disability. Nor did claimant sustain the burden of.proof by a preponderance of the evidence that either injury was the cause of his laminectomy that was performed by Dr. Honda on October 14, 1983. Claimant was treated by four doctors. There was no evidence from his personal physician, Dr. McCabe, that either of these two injuries caused or aggravated the hypertrophic spur that impinged on the left nerve root (Ex. 7) or the bulging calcified disc that was compressing his nerve roots (Ex. 12) that resulted in the laminectomy. There is no evidence from Dr. Donahue (the plant physician and also a personal physician who treated claimant for both of these injuries) that either one of them caused or aggravated the spur or calcified disc that predisposed the laminectomy. There is no evidence from Dr. Sinning, the orthopedic surgeon, that claimant's work caused or aggravated any permanent disability or resulted in his laminectomy. On the contrary the records of Dr. Donahue (Ex. B) and Dr. Sinning (Ex. 17) indicated that they treated a back strain with some anxiety overlay. Dr. McCabe did not give any diagnosis for either one of these injuries, but instead referred claimant to Dr. Honda. Dr. Honda declined to give his own personal, individual, professional, medical opinion on causation on January 18, 1984. Rather he deferred this decision to what the employer's records would show (Ex. U). When confronted for an opinion on causal connection by claimant's counsel on December 1, 1986, Dr. Honda added an addenda to his report which stated as follows: "It is possible that the work injury aggravated his condition which would lead to laminectomy and excision of disc" (Ex. 15). In considering the evidence, it is recognized that spur formation and calcification of a disc are conditions which develop over a period much longer than a few weeks or months. Section 17A.14(5). As stated previously 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). Three of the possible expert witnesses gave no opinion whatsoever on causal connection. The only doctor who gave an opinion said only that a causal connection was possible. A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). However, the Burt case also stands for the proposition that causal connection can be established when a medical expert states that a causal connection is possible and when all of the other evidence in the case is considered, the other facts and inferences support such a conclusion. In this case the only oilier possible witness on the subject of causal connection was claimant himself and he testified that he had some doubts about it himself (Tr., pp. 92, 93, 98 & 114). In fact, when he filled out a claim form for disability income payments he wrote in his own hand and apparently of his own volition, 'I'm not sure if HOSKINS V. CATERPILLAR TRACTOR CO. Page 9 work related!" (Ex. KK). Therefore, based upon the absence of medical evidence to establish a causal connection and the claimant's own doubts about a causal connection which he expressed in his testimony at hearing as well as on the claim form it must be found that claimant failed to sustain the burden of proof by a preponderance of the evidence that either injury was the cause of any permanent disability or the laminectomy. The question of entitlement then is moot. However, it is noted that when claimant was sent to Dr. Honda for an impairment rating, Dr. Honda could not find enough impairment to award claimant a numerical rating (Ex. 14). FINDINGS OF FACT WHEREFORE, based on the foregoing evidence the following findings of fact are made: That claimant sustained an injury on August 23, 1983 when he lifted a 30 to 40 pound steel part called a swinglink into an inspection fixture and experienced pain in his back. That this injury was the cause of temporary disability from August 23, 1983 to September 18, 1983 as stipulated and that claimant has been paid worker's compensation benefits for this period of temporary disability. That Dr. McCabe, Dr. Donahue and Dr. Sinning gave no opinion on causal connection of either injury to any permanent disability or the laminectomy. The injury was a temporary aggravation of a preexisting condition. That Dr. Honda said it was possible that the work injury or injuries aggravated his condition which would have led to a laminectomy. That claimant testified that he had doubts about whether his job related back injuries were the cause of his laminectomy. That claimant stated when he applied for income disability benefits on account of the laminectomy "I'm not sure if work related!". CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed, the following conclusions of law are made: That claimant sustained an injury on August 23, 1983, that arose out of and in the course of his employment with employer. That claimant is not entitled to any additional temporary disability benefits for this injury. That claimant did not prove that the injury of May 27, 1983 or the injury of August 23, 1983 was the cause of his laminectomy HOSKINS V. CATERPILLAR TRACTOR CO. Page 10 or of any permanent disability. That claimant is not entitled to any permanent disability benefits. ORDER THEREFORE, IT IS ORDERED that no further payments are due to claimant from defendant as a result of either of these injuries. That each party pay their own respective costs of this proceeding and defendant is to pay the cost of the attendance of the court reporter at the hearing pursuant to Division of Industrial Services Rule 343-4.33(l). That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of October, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street Davenport, Iowa 52805 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. Davenport, Iowa 52801 1106; 1108.50; 1402.20 1402.30; 1402.40; 1803 Filed October 26, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES T. HOSKINS, Claimant, FILE NOS. 735118 & 792721 VS. A R B I T R A T I 0 N CATERPILLAR TRACTOR CO., D E C I S I 0 N Employer, Self-Insured, Defendant. 1106; 1108.50; 1402.20; 1402.30; 1402.40; 1803 Lifting a 30 to 40 pound part at work that caused a back strain was found to be an injury arising out of and in the course of employment that caused temporary disability only for which claimant had already received benefits prior to hearing. This strain, and an earlier strain, were found not to be the cause of any permanent disability or the cause of a subsequent laminectomy. Claimant had a history of chronic back problems that flared up unpredictably both at work and away from work for some time. Claimant testified and wrote on a claim form that he had his own doubts whether it was caused by work or not. No doctor gave claimant a numerical impairment rating and the surgeon said he had no loss of motion, strength, or sensation and that he had no residual pain. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLIFFORD L. CURRENT, Claimant, File No. 735375 vs. ARMSTRONG RUBBER COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Clifford L. Current, claimant, against Armstrong Rubber Company, employer, and Travelers Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained March 22, 1983. This matter came on for hearing before the undersigned deputy industrial commissioner April 8, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimant, Jack Salsbury, and Robert Wentzel; claimant's exhibits 1, 2 and 3; and defendants, exhibits A and B. ISSUES Pursuant to the prehearing report and order submitted and approved April 8, 1988, the following issues are presented for determination: 1 . The extent of claimant's entitlement to permanent partial disability benefits stipulated to be an industrial disability to the body as a whole; 2. Whether the injury is causally connected to the disability on which claimant bases his claim. (Concisely stated, the parties agreed claimant's injury caused his cervical surgery but dispute whether the same injury caused the rotator cuff repair surgery.) FACTS PRESENTED It should be noted at the outset that claimant appeared to have very little independent recall of the incidents and events surrounding his injury and subsequent treatment. Claimant essentially responded to his counsel's leading questions and testified as to the content of the exhibits he offered at hearing. Claimant sustained an injury on March 22, 1983 which arose out of and in the course of his employment when he "pulled something" in his "right shoulder and neck pulling a stuck breaker." Claimant recalled complaining to the company nurse that he hurt his shoulder and telling her he "tore" something in his shoulder. The medical department treatment record shows "Rt. shoulder strain? Good range of motion." Claimant did not seek medical care from a physician until March 25, 1983 at which time he was placed on light duty by the company doctor. Claimant has not, since that time, returned to his regular job of tire building.. Claimant eventually came under the care of Robert Hayne, M.D., in April 1983, who prescribed medication and extra rest periods for claimant during the course of his work day. On April 18, 1983, claimant underwent a CT scan and in June 1983, a myelogram which resulted in cervical surgery in July 1983. Claimant anticipated returning to work in October 1983 and testified that on or about September 16, 1983, he slipped going down to the basement falling onto a concrete floor. Claimant expressed his belief that this incident,was not major and that it did not slow down his recovery from his cervical surgery. Claimant explained that he continued to complain of shoulder pain to Dr. Hayne and was referred to Joe F. Fellows, M.D., who eventually repaired a tear of the rotator cuff of the right shoulder. Claimant acknowledged a previous history of problems with his left shoulder but denies any right shoulder problems prior to March 1983. Claimant was released to return to work in September 1984 with restrictions of not lifting more than 20 pounds, limited use of the right arm, and no reaching or pulling over 20 pounds with the right arm. These restrictions prohibited claimant from returning to work as a tire builder CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 3 and he therefore returned to a variety of light duty jobs until he was assigned a janitorial position in 1986. Claimant asserted this position is temporary in that he does not have sole rights to the job and it someone with more seniority returns to work he must give up the job. Claimant continued to work as a janitor until he took a nonwork-related leave of absence in February 1988. Claimant testified he is earning less money as a janitor where he is paid an hourly wage ($10.735) than he could be earning as a tire builder where his pay was based on incentive or piece work. Claimant acknowledged, however, that he generally works 40 or more hours per week in the janitor position. Jack Salsbury, benefits representative for the union representing Armstrong production employees, testified claimant's average weekly earnings prior to March 1983 were $523.35 and that since 1983 wage increases have totaled $2.19 per hour but wage concessions have totaled $2.27 per hour. He therefore concluded the average weekly wage for tire builders adjusted to April 1988 earnings is $520.15. Salsbury, using claimant's current hourly wage of $10.735 multiplied by 40 hours per week, represented that claimant's current wage is $429.40 per week or a dollar loss of $90.75 per week constituting a 17 percent loss of earnings. Salsbury also testified to the extensive benefits afforded claimant in his current employment and acknowledged that according to the collective bargaining agreement (which provides that employees with at least 15 years seniority will be placed in a position within medical restrictions), the job claimant holds is stable and secure and absent circumstances so justifying an action, claimant is not subject to discharge. Salsbury offered that if no complaints are received on an employee that employee's record must be good and that he has received no complaints on CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 4 claimant. Robert Wentzel, assistant industrial relations manager for defendant employer, testified he is responsible for the administration of a labor contract, holding disciplinary hearings and investigations, overseeing the medical department, and the workers' compensation program. With regard to speculation as to the future of the Armstrong plant in Des Moines, Wentzel offered that the labor agreement has been approved by all interested parties, that that agreement runs for three years, and that he believes the plant wail remain open. Wentzel testified claimant enjoys excellent job security and knows of no reason why claimant's job would be in jeopardy both by virtue of claimant's excellent work record and the collective bargaining agreement. He opined it is unusual for a janitor to be "short shifted" and could think of no time in the last three years where a janitor has been sent home early whereas tire builders are usually, in his opinion, short shifted. He offered that the opportunities for overtime as a janitor also prevail. Medical records of Robert A. Hayne, M.D., neurological surgeon, reveal he first treated claimant ten years prior to the March 1983 injury when claimant underwent a cervical fusion for herniates nucleus puiposus at the fifth and sixth cervical interspaces and a 10 percent "disability" rating was given (although not by Dr. Hayne). See defendants' Exhibit B, page 1. Claimant was again seen April 11, 1963, with a history of a work injury and aching along the shoulder with pain in the right upper extremity. A CT, scan performed April 18, 1983, showed posterior spurring of C4,5 and C6,7 and mild to moderate uncinate spur at the C6,7 level. A myeolgram, done on June 13, 1983 showed spondylolsis between the fifth and sixth cervical CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 5 interspaces, bilateral defect involving these nerve roots. Following the myelogram, claimant was discharged to continue with the conservative measures of treatment but claimant continued to complain of shoulder and right arm pain and on July 26, 1983, Dr. Hayne performed a cervical laminectomy with decompression of fourth and fifth cervical nerve roots on the right. It appears claimant had an uneventful recovery from this surgery until September 16, 1983 when Dr. Hayne notes: "Doing well until he slipped on floor in basement and tell on his back. Rt. shoulder stiff since then." (Claimant's Exhibit 1, item 15) Just over a week prior to this incident and specifically on September 7, 1983, according to the employer's medical representative's report, claimant had advised Armstrong's nurse to "keep his job open because he was going to go back to it in October." (Cl. Ex. 1, item 19) In October 1983, after treatment failed to relieve claimant's pain, Dr. Hayne referred claimant to Joe F. Fellows, M.D., orthopedic surgeon, who noted on October 28, 1983: "Mr. Current has had problems with his right shoulder through the summer months. he originally hurt his shoulder and neck in March of 1983 at work when he was pulled rather violently .... He has had no significant prior history of shoulder injury on the right....O(Cl. Ex. 1, item 21) Dr. Fellows makes no note of claimant's fall in September 1983, as claimant failed to convey such a history. An arthrogram done December 19, 1983 showed a "fairly substantial tear" of the rotator cuff of the right shoulder and Dr. Fellows states it was to probably as a result of injury in March, 1983." Claimant underwent surgery for the repair of the tear on January 11, 1984 and was released to return to work on approximately September 17, 1984 at light duty with a 20 pound lifting restriction. On October 7, 1985, Dr. Fellows advised: CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 6 Mr. Current is able to work with the following permanent restrictions: No lifting over 30 pounds and no overhead work with his right arm. His permanent physical impairment of the shoulder is 20% based on his rotator cuff tear and subsequent surgery. (Cl. Ex. 1, item 34) In November 1984, Dr. Hayne stated: "The disability rating given to Clifford L. Current that dates back to symptoms that came on after an accident on March 22, 1983, is 18% of body total." APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The claimant has the burden of proving by a preponderance evidence that the injury of March 22, 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). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disabilityO to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * ANALYSIS As initially noted, defendants do not dispute claimant's CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 7 work injury or March 22, 1983 caused the cervical surgery but dispute it caused the rotator cuff tear necessitating surgery. Claimant makes no request for medical benefits or temporary total disability/healing period benefits for the period of time it took to recover from this surgery but request that the effect of the surgery and resulting impairment be considered in making a determination of industrial disability. Claimant asserted at the time of hearing that he experienced constant pain of his right shoulder from the time of his work injury until he had the rotator cuff surgery. While there can be no dispute claimant's work injury affected his shoulder, the medical evidence failed to substantiate claimantOs allegation that the tear of the rotator cuff is related to the incident of March 23, 1983. The nurseOs notes found in defendant employer's medical record show, with regard to a possible right shoulder strain, that claimant had good range of motion immediately after the incident at work. After undergoing the cervical fusion in July 1983, Dr. Hayne noted claimant was "much improved.O No mention is made of shoulder pain. Defendants' nurse reported claimant advised he would be returning to work in October 1983. Just after this statement was recorded, claimant advised Dr. Hayne he slipped on the floor of the basement, which was identified as concrete flooring, landing on his back. Dr. Hayne, who had appeared satisfied with claimant's progression prior to that date, noted claimant's shoulder had been stiff since the time of the fall. Dr. Hayne first tried an injection of cortisone but eventually referred claimant to Dr. Fellows. Dr. Hayne does not relate the shoulder stiffness to the March 1983 work incident. It is essential to note that Dr. Fellows concludes the rotator cuff tear is "probably as a result of the injury in March, 1983. However, Dr. Fellows is clearly acting without a complete medical history. Claimant acknowledged and Dr. Fellows' records so reflect that no mention was ever made of the fall in the basement in September 1983. Claimant sought to dismiss this omission by asserting that he did not think the incident significant and further did not believe it extended his healing period. Yet, just a little over a week before this fall, he was making representations of returning to work within a month. Following this fall, claimant was unable to return to work for over a year. Because of the inaccurate history, Dr. Fellows' opinion is suspect. Dr. Hayne does not relate claimant's symptoms to the work injury. As stated above, the question of causal connection is essentially within the domain of expert testimony. What is left, then, is only the possibility that the work injury caused this condition. A possibility is insufficient. Claimant has failed to meet his burden that the work injury of March 22, 1983 is causally related to the rotator cuff surgery and resulting impairment and it cannot therefore be considered in making the determination of the extent of claimant's industrial disability resulting from the work injury. An individual with a permanent impairment, by the very meaning of the phrase, can never return to the same physical condition he or she was in prior to the time of the injury. Dr. Hayne opines claimant has an 18 percent of body total "disability" that "dates back to symptoms that came on after an accident on March 22, 1983." Although this opinion is somewhat unclear as to its exact meaning and Dr. Hayne refers to "disability" which is within the domain of the industrial CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 8 commissioner and his deputies rather than "impairment" which is the domain of the expert witness, it is accepted that the work injury of March 22, 1983, resulted in a cervical fusion and a permanent impairment, thus entitling claimant to an award of industrial disability. 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 by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. The 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 employeeOs medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons relates 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 commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985), Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant is currently 50 years old (44 at the time of his injury) with a high school education and with primary work CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 9 experience as a tire builder. Claimant has been prohibited from returning to tire building as a result of the restrictions imposed by Dr. Fellows following surgery to repair the torn rotator cuff. It has already been determined that this is not causally connected to the work injury. Defendants cannot be held liable for any reduction in earning capacity which comes as a result of incidents not work related. The medical records do not reveal that Dr. Hayne imposed any work restrictions on claimant. The reasons for this are unclear. It may be that there are no restrictions as a result of the cervical fusion or that Dr. Hayne is relying on Dr. Fellows' opinion with regard to restrictions. For the undersigned to make any assumption in this regard, however, would be clearly improper. Claimant underwent cervical fusion in January 1974 for treatment of a herniated disc at the fifth and sixth cervical interspaces. Claimant did well until the current incident. The severity of two cervical fusions within approximately ten years time cannot be underestimated. Claimant is currently employed in a position which all parties agree is safe and secure. Because of claimant's excellent work record and specific provisions of the collective bargaining agreement, the likelihood of future unemployment is almost nil. However, it is claimant's condition at the time of hearing that must be evaluated. To speculate on what may happen to claimant in the future is clearly improper. Umphress v. Armstrong Rubber Company, (Appeal Decision, August 27, 1987). Defendants have made extended efforts to keep claimant employee, and physically employed within his medical restrictions. In Gallardo v. Firestone Tire & Rubber Company, (Appeal Decision, October 21, 1987), the industrial commissisoner found that defendants' efforts to keep claimant employed was held to less than claimant's loss of earning capacity. Extensive attention was paid both by claimant and defendants to claimant's loss of earnings. It is sufficient to note that industrial disability relates to a reduction in earning capacity rather than a change in actual earnings. Michael v. Harrison County, 34 Biennial Report of the industrial Commissioner 218, 220, (Appeal Decision, January 30, 1979). Considering all the elements of industrial disability, it is found claimant has sustained a 25 percent disability for industrial purposes as a result of his injury of March 22, 1983. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of his employment on March 22, 1983 which resulted in the cervical surgery in July 1983. 2. Claimant underwent cervical surgery in January 1974 for two herniated discs at the fifth and sixth cervical interspaces. 3. Following the cervical surgery in July 1983, claimant made representations to defendants that he anticipated return to work in October 1983. 4. On September 16, 1984, claimant slipped going down into the basement falling onto a concrete floor and landing on his CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 10 back. 5. Claimant has stiffness in his right shoulder following this incident and was referred to an orthopedic surgeon who, in January 1984, performed surgery to repair a torn rotator cuff. 6. The orthopedic surgeon opined that claimant's rotator cuff tear was probably as a result of an injury in March 1983; however, claimant failed to relay to the surgeon the incident of falling in his basement just one month previous. 7. Following the repair of the torn rotator cuff, claimant was unable to return to work until September 1984. 8. Claimant returned to work at the time of his release and is currently employed in a safe and secure position with defendant employer but has suffered some loss of earnings. 9. Claimant is currently 50 years old, 44 at the time of injury, with a high school education, who has principally earned his living as a tire builder. 10. Because of the restrictions imposed on claimant as a result of the torn rotator cuff, claimant is prohibited from returning to work as a tire builder. 11. Defendants have made extended efforts to keep claimant employed and specifically employed within his medical restrictions. 12. Claimant has sustained a permanent impairment as a result of the work injury of March 22, 1983. 13. Claimant has sustained 25 percent disability for industrial purposes as a result of his injury of March 22, 1983. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has failed to meet his burden of proof that the torn rotator cuff necessitating surgery is causally connected to the work injury of March 22, 1983. 2. Claimant has established he sustained a permanent partial disability of 25 percent for industrial purposes. ORDER THEREFORE, IT IS ORDERED: That defendants are to pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at a stipulated rate of three hundred eighteen and 85/100 dollars ($318.85) per week commencing September 18, 1984. That defendants shall receive full credit for all permanent partial disability benefits previously paid. CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 11 Benefits that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 18th day of July, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Des Moines, Iowa 50309-3320 Ms. Elizabeth Gregg Kennedy CURRENT V. ARMSTRONG RUBBER COMPANY PAGE 12 Attorney at Law 100 Court Avenue Des Moines, Iowa 50309 1803; 1402.40 Filed July 18, 1988 DEBORAH A. DUBIK BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLIFFORD L. CURRENT, Claimant, File No. 735375 vs. A R B I T R A T I 0 N ARMSTRONG RUBBER COMPANY, D E C I S I 0 N Employer, and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. 1803; 1402.40 Claimant sustained an injury arising out of and in the course of his employment to his neck which resulted in a cervical laminectomy. While recovering from surgery, claimant fell at home and eventually had surgery to repair a torn rotator cuff. It was found claimant failed to establish a causal connection between the injury and surgery on the rotator cuff. Considering all the elements of industrial disability, claimant found to have a 25 percent industrial disability.