BEFORE THE IOWA INDUSTRIAL COMMISSIONER JESSE W. JAMES, Claimant, File No. 747521 vs. A R B I T R A T I O N SHELLER-GLOBE CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding brought by Jesse W. James, the claimant, spouse of Rosa Lee James, decedent, against Sheller-Globe Corporation, self-insured employer, for death benefits and burial expenses. The case was heard by former Deputy Industrial Commissioner, Garry W. Woodward. The case was fully submitted at the completion of the hearing. On July 13, 1988, this case was transferred to the undersigned by David E. Linquist, Industrial Commissioner. The record consists of the testimony of Jesse W. James, claimant, Donald Johnsen, retired employee of defendant, Karen Boatman, sister of decedent, Nelma Goodare, employee of defendant, Pam Perry, employee of defendant, and Codie Barentine, mother of decedent. The record also consists of joint exhibits 1 through 38 and defendant's exhibits A through C. The parties stipulated to the existence of an employer-employee relationship between the decedent and the employer at the time of the alleged injury. The parties also stipulated that if liability was proven, the commencement date for the award or death benefits would commence on September 8, 1985 and that the weekly benefit amount would be $187.00 per week. ISSUES The issues presented by the parties.at the time of the prehearing are: 1. Whether Rosa Lee James sustained injuries arising out of and in the course of her employment; 2. Whether injuries allegedly arising out of and in the course of Rosa Lee James' employment was a proximate cause of her death; and, 3. Whether defendant is liable for death benefits. JAMES V. SHELLER-GLOBE CORPORATION PAGE 2 FACTS PRESENTED Decedent was an employee of defendant in 1970 and then from late 1972 through the early portion of 1974. She was also employed by defendant from late 1975 until September 7, 1985, the date of her death. During the course of her employment she worked in a variety of departments and performed a number of tasks. According to corporate records, decedent worked in Department 78 from January 12, 1981 through February 14, 1982 and from March 15, 1982 through January 23, 1984 when she permanently transferred. Department 78 was known as the crash pad department. Decedent served as a finish operator in that department where she used a spray wax. Medical records indicate that as early as August 4, 1981 decedent sought medical attention for "acute sinusitis and tracheo bronchitis.O Subsequent to August 4, 1981 decedent sought additional medical treatment for like symptoms. Again in 1963 and in 1984 decedent sought medical treatment for similar symptoms to the above. John E. Beckert, D.O., the family physician, diagnosed the patient as having "an allergic phenomena from the chemicals at work." During 1983, decedent missed work for the same problems during the periods: April 15, 1983 through May 9, 1983, July 16, 1983 to September 5,1983, and October 31, 1983 through December 18, 1983. In June of 1983, Dr. Beckert referred decedent to Leonard Grayson, M.D., an allergy and clinical immunology specialist. Ten pulmonary function tests were performed on decedent by Dr. Grayson using four specimens which the patient had brought from the work site. These specimens contained samples of the wax used at work, two pieces of gray plastic, a soap solution and a solvent used at the work place. Dr. Grayson, in his letter of June 21, 1983 writes: In an attempt to summarize all of this material, I have to say that of all the things that the patient brought in from work, the only item I can incriminate as causing some problem would be the jar that contained the wax. If there is wax vapor in the air, then I think it can cause trouble for this patient. However, the initial baseline pulmonary function study did show a mild obstructive pattern compatible with bronchitis, and this may be what the patient has as an underlying condition, possibly aggravated by exposure to the wax. Subsequent to Dr. Grayson's medical evaluation, decedent returned to Department 78 until January 23, 1984 when she was permanently transferred from that department to Department 15. Decedent was not exposed to the same wax in Department 15. She worked in that department until September 6, 1985, the day prior to her death. JAMES V. SHELLER-GLOBE CORPORATION PAGE 3 Decedent filed her original workers' compensation complaint on November 16, 1983. After filing the workers' compensation complaints, decedent sought the assistance of the Occupational Medicine Clinic at the University of Iowa Hospitals. James Merchant, M.D., in his letter of July 19, 1985 writes: Your patient was seen in the Occupational Medicine Clinic on July 15, 1985, with a diagnosis of occupational asthma. Mrs. James is a 43 year old white female seen for follow-up of her occupational asthma.... At the deposition of Dr. Merchant, defendant's attorney posed the following question: Q. From your examination, Doctor, did it appear to you that Rosa Lee James on June 3, 1985, was in any. immediate danger of dying from any pulmonary condition that may have been diagnosed? Dr. Merchant testified as follows: A. Well, I wouldn't say in any immediate danger of dying, but obviously whenever you have asthma you are at risk to an acute attack of asthma which can be fatal, and she clearly did have asthma. It was our opinion that she had occupational asthma and it was induced by her work exposure, by her history, and she had other medical evaluations which tended to support that that were done prior to coming to our clinic. So we felt that she did have occupational asthma. We documented that she had.hyperreactive airways, which is part and parcel of the diagnosis. She did have very good and rather marked reversal with bronchodilators which made us feel that she could be treated effectively. But nevertheless anybody with asthma is -- continues to be at risk depending upon an acute exposure. Q. And acute exposure would be something that the patient would get into and have immediate reaction of some kind bringing on an asthmatic attack? A. Yes. Asthmatics who have hyperreactive airways will tend to have their asthma triggered by a number of different irritants, and this may be chemicals, it can be hair spray, it can be solvents, can be paint, can be fumes, can be dust, molds, can be exercises, can be cold air. These are all well-described and typical types of exposures that can trigger an acute asthmatic attack, even though the original asthma may well have been caused in the workplace, which we believe was the case in this particular patient. (Exhibit 1, pages 8 & 9) Later in his deposition, Dr. Merchant testified: JAMES V. SHELLER-GLOBE CORPORATION PAGE 4 So I think in terms of the plant exposure, I think the role there would be in preexisting condition of hyperreactive airways, which would predispose her to a situation where then she could -- she could have her asthma triggered by any nonspecific irritant. So I think that's the way I see it. But obviously we don't have a lot of the facts in terms of what happened in that period of time between the time she left the plant and the time of her death. (Ex. 1, p. 22) Decedent was to continue treatment through the Occupational Medicine Clinic after her July 15, 1985 appointment. However, decedent died prior to her next scheduled consultation. According to the investigative report of the Missouri State Highway Patrol, decedent died on September 7, 1985. A post mortum examination was conducted by Jay D. Dix, M.D., on September 9, 1985. He determined the cause of death to be asthma in his Pathologic Diagnoses of September 25, 1985. It is unclear how decedent died. Claimant testified at the hearing that prior to the time of death, decedent had been doing some laundry and had been cleaning the bathroom with Comet cleanser. After the death of decedent, claimant filed his amended complaint. The employer, in response, to this complaint, forwarded various documents and medical reports, pertaining to decedent to Paul From, M.D., Mark D. Ravreby, M.D., Thomas L. Bennett, M.D., and R. C. Wooters, M.D. By way of deposition, Dr. From concurred with Dr. Dix that decedent had died of asthma. Upon cross-examination by the claimant's attorney, the subsequent question was posed by Mr. Vonderhaar: Q. Doctor, as you said a couple of times, we are really never going to know what caused the attack on that particular day at that particular time, are we? A. No, we are not. (Ex. 2, p. 27) Dr. Ravreby did not examine decedent. He reviewed the medical records supplied to him by the defendant. Dr. Ravreby stated in his deposition, "It's my opinion that the death of Rosa James was not related to her occupation." (Ex. 3, p. 10) Thomas L. Bennett, M.D., Iowa State Medical Examiner, concurred with the opinion of Dr. Dix that: Mrs. James died as the result of an acute asthmatic attack .... However, the approximate 19 to 20 hour period of time between the last time at work and the time when death probably occurred are strong evidence against the allergin being one she contacted at work. Thus, in my.opinion, Rose Lee James did not die as the direct result of exposure to irritants at her employment with Sheller-Globe. JAMES V. SHELLER-GLOBE CORPORATION PAGE 5 (Ex. 31) Finally, R. C. Wooters, M.D., Polk County Medical Examiner, concurred that decedent died of asthma. He writes in his letter of July 16, 1987: I see no way that there would be a connection between her death due to Asthma and exposure to a substance, approximately 19 hours earlier without her having been known to be in serious to critical condition throughout the evening hours. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that the injury or asthma which decedent suffered arose out of and in the course of decedent's 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 also has the burden of proving by a preponderance of the evidence that any injury or death is causally related to the employment of decedent. 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). According to the case of Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), "A cause is proximate if it is a substantial factor in bringing about the result." It does not need to be the only cause. 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, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time.of a subsequent injury is not a defense. Rose v..John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant JAMES V. SHELLER-GLOBE CORPORATION PAGE 6 may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation SS555(17)(a). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. JAMES V. SHELLER-GLOBE CORPORATION PAGE 7 ANALYSIS Claimant has not met his burden in proving that the decedent, his spouse, suffered a work related injury that caused her death. The evidence is clear that the decedent suffered from asthma and that the asthma did not occur until after the decedent had been employed at the Sheller-Globe Corporation. Specifically, symptoms did not appear until the decedent had been working in Department 78 of the plant. The condition developed at least by June 3, 1985. Dr. Grayson, after performing pulmonary function tests, determined the wax used by decedent in Department 78 caused problems for her. Dr. Grayson writes in his medical report of June 21, 1983, "These symptoms seem to disappear on weekends, and recur after the patient goes back to work." Decedent was then treated on July 2, 1983 by her regular physician Dr. Beckert for "...an allergic phenomena from the chemicals at work, prog: guarded Dx: chemical bronchitis." Decedent continued treatment with Dr. Beckert throughout the remainder of calendar years 1983, 1984 and through march 21, 1985. On May 2, 1985, Waiter Hierholzer, M.D., of the University of Iowa Hospitals and Clinics, diagnosed decedent as follows: Rosa James was seen in the Occupational Medicine Clinic on April 22, 1985, with the diagnosis of hyperactive airways disease, possible occupational asthma. ... The patient's history of dyspnea with exposure to workplace wax in conjunction with her Monday morning chest tightness and response to wax vapor suggest occupational asthma. In the clinical resume decedent was diagnosed as having occupational asthma by the University of Iowa Hospitals as of June 3, 1985. Decedent was to return to the University Clinic six weeks after her diagnosis. Decedent died prior to her next appointment. The opinions of Dr. Bennett and Dr. Wooters are accorded great weight. Neither physician found a causal connection between the decedentOs death and any work related disease. Both doctors are experts in the field of pathology and forensic medicine, nevertheless, they were unable to attribute decedent's death to the exposure of chemicals in the work place. It is undisputed the cause of death was asthma. The decedent was at home at the time of her death. She had not been working with the wax used in Department 78 at Sheller-Globe since January 23, 1984. More than 19 hours had transpired since the decedent had left the work environment. When the claimant set out for the plant, on the morning of September 7, decedent did not appear ill. There is evidence to indicate the decedent had worked with household cleansers and laundry detergent prior to her death. Her bronchodilator was close to her when she was discovered by her husband. The record indicates exposure to certain household cleansers can precipitate an asthma attack. There is nothing to indicate that on the final day of her JAMES V. SHELLER-GLOBE CORPORATION PAGE 8 employment the decedent was suffering from an asthma attack, either at work, or immediately after working hours. Experts refute claimant's testimony that the asthma attack at the time of death was work related. The claimant has not established the decedentOs death was causally connected to her employment or proximately caused by her employment. The time of death was removed from any work exposure. FINDINGS OF FACT WHEREFORE, based on the evidence presented and the principles of law previously cited, the following findings of fact and conclusions of law are made: FINDING 1. The decedent developed asthma while employee with defendant. FINDING 2. Rosa Lee James died on September 7, 1985 of asthma while at home. FINDING 3. Rosa Lee James was afflicted with a predisposition towards asthma. FINDING 4. Rosa Lee James' asthma was the primary factor responsible for her death. FINDING 5. Jesse James, the claimant, was married to Rosa Lee James at the time of her death. FINDING 6. Decedent's asthma attack on September 7, 1985 was not induced or caused by any chemical or activity of the defendant. CONCLUSIONS OF LAW Claimant has failed to prove by a preponderance of the evidence that the death of decedent was proximately caused by an injury which arose out of and in the course of employment or that her death was proximately caused by her employment. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the defendant. Signed and filed this 20th day of September, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER JAMES V. SHELLER-GLOBE CORPORATION PAGE 9 Copies To: Mr. Arthur Hedberg Mr. Phillip C. Vonderhaar Attorneys at Law 840 5th Ave. Des Moines, Iowa 50308 Mr. Harry W. Dahl Attorney at Law Suite 16 974 - 73rd St. Des Moines, Iowa 50312 1108.3; 1805 Filed September 20, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER JESSE W. JAMES, Claimant, File No. 747521 vs. A R B I T R A T I O N SHELLER-GLOBE CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. 1108.3; 1805 ClaimantOs decedent died approximately 19 hours after her employment shift. The cause of death was asthma. The evidence failed to show that decedent's death was caused by exposure to chemicals in the work environment. It was held claimant had failed to establish that decedent's death arose out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHERYL MOORHEAD-FRAME, Claimant, File No. 747913 VS. HILLHAVEN, A P P E A L Employer, D E C I S I 0 N and RANGER INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying benefits relating to a back injury of October 10, 1983. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 9; and defendants' exhibits 1 through 52. Both parties filed briefs on appeal. ISSUES Claimant states the issues on appeal are whether the deputy erred in determining that the claimant had not shown she received an injury arising out of and in the course of her employment and whether the deputy placed undue reliance upon the fact that claimant had prior lower back pain. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant originally injured her right foot on October 10, 1983 in a work-related accident. Claimant testified that while she was at home she slipped on her crutches and had back pain. She stated that this incident took place sometime in the first or mid part of November 1983. She stated that she called Dr. Kimelman and complained of back pain. She also testified that she told the doctor of back pain on examination the latter part of November. She further testified that she told Margaret McLaughlin at a medical terminology class that she fell with her crutches. Claimant's earlier answers to interrogatories indicated she had informed McLaughlin by telephone. Claimant initially denied and later testified she could not remember whether she missed work on June 7, 1983 because of a bike accident in which she had hurt her back. MOORHEAD-FRAME V. HILLHAVEN Page 2 Joshua J. Kimelman, D.O., testified that claimant did not mention the back pain from the slip with crutches in the telephone call she made to him on November 18, 1983 or the office visits on November 15 and December 6, 1983. Margaret McLaughlin, who was director of nursing for defendant Hillhaven and was claimant's supervisor in October 1983, testified that she did not recall claimant ever stating she had slipped with her crutches. Jeri Zurg, a staff nurse at Hillhaven, testified that she accepted work absence call-ins and that claimant had called in and said she would not be at work in June 1983 because she had a bike accident and hurt her back. A Mercy Hospital admitting form dated April 16, 1981 reports that claimant complained of an injury to the lower back and right thigh. A September 6, 1983 note of Roy W. Overton, M.D., indicates that claimant complained of low backache and aching in the right hip area. Kent M. Patrick, M.D., indicated in a letter dated January 25, 1985 that claimant did not relate history of back problems prior to the pain she developed while on her crutches following the foot injury. He noted that any activity could bring about the same back pain symptoms. In a letter dated January 2, 1985, Dr. Patrick indicated that he had only claimant's story and the records to go on that she developed back pain while on crutches. He opined in that sense the pain is work-related. He also noted in that letter that history of a preexisting or another injury would change the situation. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence and will be augmented only as necessary. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 10, 1983 is causally MOORHEAD-FRAME V. HILLHAVEN Page 3 related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that the injury of October 10, 1983 is causally connected to her alleged disability. She asserts that she fell while using her crutches in early or mid-November 1983. That assertion is not corroborated by other lay testimony or the medical record. Her assertion that she informed two other persons of the injury contemporaneously to the event is directly contradicted by those persons. Dr. Patrick opined that claimant's pain, which was a result of use of the crutches, was work-related. He indicated, however, that his opinion would be different if there was a history of prior injury. There was evidence of prior back problems when claimant was seen for complaints of pain in the low back April 16, 1981 and September 6, 1983. Also, she missed work prior to November 1983 for a nonwork-related back condition. Claimant has not proved by the greater weight of evidence that her back injury is causally connected to the incident on October 10, 1983. Claimant argues on appeal that the deputy placed undue reliance upon the fact that claimant had prior lower back pain. The deputy in reaching her conclusion relied upon the evidence available, including the history of prior back problems. The deputy correctly relied upon this history, particularly in assessing whether claimant had met her burden of proof and in assessing whether Dr. Patrick's opinion was accurate in light of an inaccurate history. FINDINGS OF FACT 1. Claimant was examined at Mercy Hospital April 16, 1981 for low back and right thigh pain. 2. Claimant reported she would be absent from work on account of a nonwork back injury in Spring prior to October 10, MOORHEAD-FRAME V. HILLHAVEN Page 4 1983. 3. Claimant reported right leg pain radiating into the low back and right hip to Dr. Overton on September 6, 1983. 4. Claimant injured her right foot in a work incident of October 10, 1983. 5. Crutches were initially prescribed for claimant's right foot injury. 6. Claimant first saw Dr. Kimelman on October 14, 1983. 7. Dr. Kimelman advised claimant not to use crutches on November 15, 1983. 8. Claimant telephoned Dr. Kimelman's office and complained of back problems on November 18, 1983. 9. Dr. Kimelman surmised claimant's funny way of walking and her use of crutches were "screwing up" her back but did not report a specific incident of claimant falling on crutches on November 18, 1983 or at any other time. 10. Dr. Kimelman's notes reflect a minor reported incident wherein claimant injured her toes following her original foot injury. 11. Claimant's claim of a fall on her crutches is not corroborated. 12. Use of crutches alone might create back problems, but other sources need be considered where a claimant has had prior back problems. 13. Claimant has had prior back problems. 14. Claimant did not advise either Dr. Patrick or Dr. Kimelman of her prior back problems. 15. Claimant's back condition is as likely as not a preexisting condition unrelated to her use of crutches as it is a condition created by her use of crutches. CONCLUSIONS OF LAW Claimant received an injury arising out of and in the course of her employment on October 10, 1983. Claimant failed to meet her burden to causally connect any back problem to her injury of October 10, 1983. WHEREFORE, the decision of the deputy is affirmed. ORDER That claimant take nothing further from this proceeding. That claimant pay costs of this proceeding pursuant to MOORHEAD-FRAME V. HILLHAVEN Page 5 Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of January, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. David Drake Attorney at Law P.O. Box 65355 1200 35th Street, Suite 500 West Des Moines, Iowa 50265 Mr. Joseph S. Cortese II Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 1108.50; 1402.20 Filed 1-28-88 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHERYL MOORHEAD-FRAME, Claimant, File No. 747913 VS. HILLHAVEN, A P P E A L Employer, D E C I S I 0 N and RANGER INSURANCE COMPANY, Insurance Carrier, Defendants. 1108.50; 1402.20 Claimant did not prove that her back injury was causally connected to an injury that arose out of and in the course of her employment. Claimant's allegation of back injury was not corroborated and her assertions that she told certain persons of the injury was contradicted by those persons. She was also not credible when she denied previous back injury but a medical exhibit and testimony of a coworker provided evidence of the previous back injury. Claimant had asserted that she had injured her back while using crutches because she had a foot injury that was a result of a work injury. 4000.2 Filed August 10, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER WALTER L. PETERMAN, File No. 747931 Claimant, D E C I S I O N vs. O N AMERICAN FREIGHT SYSTEM, S E C T I O N 86.13 Employer, Self-Insured, Defendant. 4000.2 Additional benefits under 86.13 were not awarded to a claimant when it was reasonable for the employer to believe there was no causal connection between the date of the occurrence and the nature of the injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WALTER L. PETERMAN, File No. 747931 Claimant, D E C I S I O N vs. O N AMERICAN FREIGHT SYSTEM, S E C T I O N 86.13 Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding upon a bifurcated section 86.13 claim. The parties filed a stipulation subsequent to the arbitration decision which was filed on September 20, 1985 and subsequent to the decision on rehearing which was filed on October 31, 1985. In the stipulation, the parties agreed that the record for the previous contested case proceeding could be used for this proceeding and that additional evidence would not be taken. The parties further stipulated that the record would consist of the evidence taken at the prior hearing as well as: 1. Transcript of the hearing of March 21, 1985; 2. All perpetuation transcripts taken and offered as evidence, including medical and lay testimony; 3. All exhibits accepted into evidence at the time of hearing; and, 4. The petition, answer and all answers to interrogatories, defendant's response to request for production of documents and its attachments, claimant's and defendant's post-hearing briefs, the arbitration decision and decision on rehearing, and all of claimant's and defendants requests for admissions and responses thereto. ISSUES The issues presented at this proceeding are: 1) Whether the employer unreasonably or without probable cause delayed the commencement of benefits under chapter 85 of the Iowa Code (1987); 2) Whether the claimant is entitled to additional benefits pursuant to section 86.13; and, 3) The amount of those benefits. FACTS PRESENTED This proceeding incorporates by reference the facts presented in the arbitration decision which was filed on September 20, 1985. PETERMAN V. AMERICAN FREIGHT SYSTEM PAGE 2 In addition to the above, the following facts have been considered: Ms. Spilde testified in her deposition that she was personally notified of Mr. Peterman's shoulder and arm pain on August 15, 1983. Likewise, Ms. Spilde testified that the claimant informed her that the injury could only have resulted from the shot he received on April 26, 1983 and that the injury was not the result of a fall. As a result of the claimant's telephone call on the 15th of August, Ms. Spilde conducted a further investigation on the part of the employer. She testified she requested Robert J. Foley, M.D.,'s medical report of September 16, 1983. Once the, employer had received Dr. Foley's report of September 16, 1983, Ms. Spilde testified she forwarded a denial of compensation benefits to the claimant in a letter of October 17, 1983. Ms. Spilde also testified that subsequent to her letter of October 17, 1983, she, on behalf of the employer, had not been advised of any additional information which could establish that Mr. Peterman was entitled to compensation benefits for his shoulder and arm. However, Ms. Spilde did acknowledge the receipt of letters from R. R. Carlson, M.D., of February 15, 1984 and letters from William R. Boulden, M.D., of March 23, 1984 and of April 20, 1984. All three of the aforementioned letters were admitted as evidence. The claimant, in his response to defendants request for admissions stated: 2. That Claimant admits that he did not report any right arm and shoulder complaints to his supervisors until following his return from a vacation in mid-July, 1983 .... 3. ... Claimant acknowledges that he did not obtain medical care or treatment relating to his arm and shoulder complaints until August 9, 1983 but maintains that he sought such care prior to August 9, 1983. APPLICABLE LAW Section 86.13 of the Iowa Code provides in relevant portion: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Under section 86.13 benefits are not awarded for medical expenses. The section 86.13 benefits are only applicable to weekly compensation benefits. Zahn v. Iowa State Men's Reformatory, IV Iowa Industrial Commissioner Report 409 (1983). If it is alleged that an employer wrongfully withholds weekly compensation benefits from a claimant, the claimant must establish the benefits were withheld unreasonably in order for the claimant to receive additional benefits under section 86.13. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88 at 93 (1983). In a previous decision PETERMAN V. AMERICAN FREIGHT SYSTEM PAGE 3 before the Division of Industrial Services, a hearing deputy has ruled that it was reasonable for an employer to withhold benefits when the employer was not alerted to occurrences which would notify a reasonable person that benefits would be due or when there was no work time lost. McCormack v. Sunsprout, I-1 Iowa Industrial Commissioner Decisions 142 at 144 (1984). In a separate decision before the Division of Industrial Services, the same deputy industrial commissioner awarded benefits under section 86.13. here there was an unreasonable delay since there were no contradictions in the claimant's claim. Willis v. Ruan Transport Corporation, IV Iowa Industrial Commissioner Report 395 at 396 (1984). In the Willis case at 396 the deputy wrote: ... Reports and letters from the doctor are consistent with claimant's statements regarding his injury. There were no ambiguities and inconsistencies in claimant's claim. Withholding benefits was arbitrary and unreasonable. The five percent award based on Iowa Code section 86.13 will be attached to healing period only. Although the evidence presented clearly relates claimant's permanent impairment to his injury, defendants will be given the benefit of the doubt as to whether or not a failure to pay permanent disability also was unreasonable. Claimant had prior back troubles and conceivably some portion of his impairment might.have been related to those difficulties or to a preexisting arthritis rather than to his injury. ANALYSIS Claimant has not met his burden in proving that defendant unreasonably withheld his weekly compensation benefits or that without probable cause, the defendant withheld the benefits. On April 26, 1983, the claimant sustained an injury arising out of and in the course of his employment with defendant. However, ail reports submitted at that time indicated the claimant received a laceration to his right cheek for which medical attention was sought. This medical attention included a shot in the right arm. At the time of the injury, there was no indication the claimant had suffered an injury to his right shoulder and to his arm. No mention of such an injury was recorded by the claimant in an accident report. Moreover, the claimant admitted in defendant's request for admissions that he did not report the arm and shoulder injury to his supervisor until mid-July of 1983. The claimant further admitted that he did not obtain medical care for this condition until August 9, 1983. There was at least a three month lapse between the date of the injury and file date the arm and shoulder injury was reported to supervisory personnel. Such a break in time was unforeseeable. It would not be unreasonable on the part of the employer to assume the arm and shoulder injuries were unrelated to a lacerated right cheek. Consequently, it would not be unreasonable for the employer to deny benefits, especially since the claimant had not lost any work time since the date of the injury. After the claimant received medical treatment on August 9, PETERMAN V. AMERICAN FREIGHT SYSTEM PAGE 4 1983, it still was not unreasonable for the employer to delay benefits for the arm and shoulder injuries. A reasonable person could assume there would be no causal connection between arm and shoulder pain in August and a facial injury occurring in April. Likewise, it would not be unreasonable for the employer to delay benefits even though the employee had received medical reports from Dr. Foley in September of 1983, from Dr. Boulden in March and April of 1984, and from Dr. Carlson in February of 1984. These reports were not totally consistent with the claimants claim. Dr. Foley could not relate the injury to the April 26, 1983 incident. The other physicians were only relying upon statements made to them by the claimant many months after the April date. As a consequence, a reasonable person could question the causal connection and thus deny compensation benefits. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based upon the stipulation, the evidence presented, the previous arbitration decision and the principles of law previously stated, the following findings of fact and conclusions of law are made: Finding 1. Employer delayed the commencement of benefits under Chapter 85 of the Code of Iowa (1987). Finding 2. The delay in the commencement of benefits was not unreasonable. Conclusion A. The claimant is not entitled to additional benefits under section 86.13 of the Iowa Code (1987). ORDER THEREFORE, claimant will take no additional benefits under section 86.13 of the Iowa Code (1987). Costs of this proceeding will be taxed to the defendant. Signed and filed this 10th day of August, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jan V. Berry Attorney at Law 110 S.E. Grant, Suite 205 Ankeny, Iowa 50021 Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309-2462 BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHANNA ARROWOOD, Claimant, vs. VIVIAN LORTZ D/B/A MINI CARE CENTER, File No. 748373 Employer, A R B I T R A T I 0 N and D E C I S I 0 N STATE FARM INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Johanna Arrowood, claimant, against Vivian Lortz d/b/a Mini Care Center, employer, and State Farm Insurance Company, insurance carrier, defendants, for benefits as a result of an injury which occurred on October 10, 1983. A hearing was held on August 26, 1987 at Des Moines, Iowa and the case was fully submitted at the close of the hearing. The record consists of the testimony of Johanna Arrowood (claimant), Richard S. Arrowood (claimant's husband), Joint Exhibits 1 through 10 and Defendant's Exhibits A and B. Both parties submitted excellent briefs. A number of the same exhibits were introduced by both parties. Apparently, the parties did not meet prior to the hearing to eliminate duplication of exhibits as directed by paragraph ten of the hearing assignment order. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury; That claimant sustained an injury on October 10, 1983 which arose out of and in the course of her employment with employer; That the injury was the cause of temporary disability during a period of recovery from October 11, 1983 to December 14, 1984; That claimant is entitled to and was paid 62 weeks of healing period benefits from October 11, 1983 to December 14, ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 2 1984; That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole; That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is December 14, 1984; That the rate of compensation, in the event of an award of weekly benefits, is $97.13 per week; That all requested medical benefits have been or will be paid by defendants; and That defendants are entitled to a credit for 35 weeks of permanent partial disability benefits paid prior to hearing at the rate of $97.13 per week. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of any permanent disability; and Whether claimant is entitled to permanent partial disability benefits, and if so, to what extent. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant was 19 years old at the time of the injury on October 10, 1983. She was 23 years old at the time of the hearing. Claimant had been married one month at the time of the injury. Since the injury, claimant has given birth to two children. Her first child was born on June 9, 1985 and her second child was born on April 21, 1987. Claimant graduated from high school in 1981 with a B average. She completed one semester in modeling at Des Moines Area Community College. She has completed the Jafra cosmetics management training program. Past employments include busing tables, baby-sitting and shopping mall maintenance. The latter job involved mowing the lawn, cleaning floors, painting, making signs and disposing of the garbage and trash. Claimant has also worked as a carhop for a drive-in, a cook and a dishwasher in a restaurant. She has also performed heavy-duty housecleaning work for a number of private clients. She once worked part-time as a campaign worker for a political candidate. Both claimant and her husband described claimant as a very physical young woman who lifted weights prior to the injury. Prior to this injury, claimant injured the right side of her ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 3 back doing an overhead press with a spotter. She testified that she was examined for this earlier injury by her personal physician Dennis Rolek, D.O. He permitted her to work and to go to school, but suspended her from weightlifting for ten days. This problem disappeared and she had no further trouble with her back after that. Claimant said that she was in good physical condition when she started to work for employer part-time in the summer of 1982. The defendant, Mini Care Center, was primarily an arrangement by defendant, Vivian Lortz, to provide care for her elderly father, mother, aunt and another gentleman. Claimant performed a variety of tasks for employer. She testified that her job involved lifting patients, bathing patients, dispensing medications, fixing the hair of patients, preparing patients for their naps, taking walks with patients and taking patients to the doctor. Her tasks also included doing the laundry, housecleaning, cooking, purchasing groceries and preparing menus. Claimant testified that she worked eight hours a day at $3.50 per hour. Claimant stated that she lifted patients who weighed from 82 pounds up to 170 pounds. She lifted patients onto chairs, commodes and into the tub. She lifted approximately three or four patients three or four times a day. The care center did not have a hydraulic lift at that time. Claimant said that she performed a number of other tasks that required extensive lifting and bending. She also stated that since the injury, some of the patients have died and that the care center is now closed. Claimant related that on October 10, 1983, she injured her back while assisting the owner's father into his bed. The patient started to fall and claimant caught him and assisted him to the bed. A short time later that day, her back began to hurt. Claimant treated initially with the Dietz Family Practice Clinic. She told them that she had pain radiating up her back and down both legs. The diagnosis of Daniel R. Blizzard, D.O., was low back pain and lumbar sacral strain. He treated claimant with osteopathic manipulative treatments and medication from approximately October 17, 1983 to November 4, 1983. He then referred claimant to Steven Adelman, D.O., a neurologist. (Exhibit 1). Dr. Adelman examined claimant on November 17, 1983. He concluded his notes for this visit as follows: IMPRESSION: Johanna presents as a 20 year old woman with a 5 week history of low back and leg pain which is related to a work injury. Clinically her symptoms are suggestive of right L-5 radiculopathy however, there are no objective findings at the present time. PLANS: I've explained my findings at length to Johanna. She has had normal lumbosacral spine films as an outpatient. She is anxious for aggressive therapy how-ever, considering the relatively short duration of her symptoms I would still prefer to go with symptomatic therapy. I will begin her on a course of steroids beginning with Prednisone 60mg. daily and tapering over a 10 day period. I will ask her to give Dr. Blizzard a call in 2 weeks time and if she is still ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 4 having difficulty I would then recommend probable EMG and perhaps myelography. If there are appropriate findings and she is still relatively disabled with her pain I would then recommend surgery. (Ex. 2, page 4) Claimant was then hospitalized for tests from November 22,1983 to November 30, 1983. The result of the spinal x-ray which was taken on November 23, 1983, was as follows: LUMBOSACRAL SPINE: THE ALIGNMENT OF THE LUMBOSACRAL SPINE IS GOOD IN ALL PROJECTIONS. NO EVIDENCE OF RECENT INJURY OR OTHER BONE PATHOLOGY IS SEEN. IMPRESSION: NORMAL LUMBOSACRAL (SIC) SPINE. (Ex. 3, P. 10; Ex. B, p. 10) The result of the lumbar CT scan, which was done on November 23, 1983, was as follows: CT OF THE LUMBAR SPINE: (WITHOUT CONTRAST - 22) EXAMINATION WAS OBTAINED WITH CUTS FROM THE INFERIOR MARGIN OF L-3 THROUGH S-1 WITH THE L-3 - L-4, L-4 - L-5 and L-5 - S-1 DISC SPACES WERE WELL SEEN WITH NO DEFINITE ABNORMALITY IDENTIFIED AT THE DISC SPACE LEVELS OR THE FACET JOINTS. IMPRESSION: NORMAL CT OF THE LOWER LUMBOSACRAL SPINE. (Ex. 3, p. 10; Ex. B, p. 11) The result of the myelogram performed on November 28, 1983, was as follows: AMIPAQUE MYELOGRAM: EXAMINATION WAS PERFORMED WITH AMIPAQUE INSTILLED INTO THE LUMBAR SUBARACHNOID SPACE WITH VISUALIZATION UP TO THE T9-10 LEVEL WITH SYMMETRIC DISTRIBUTION OF THE NERVE ROOTS AND NO EXTRADURAL DEFECTS OR OTHER ABNORMALITIES IDENTIFIED. IMPRESSION: NORMAL AMIPAQUE MYELOGRAM FROM THE T8 LEVEL DISTALLY. (Ex. 3, p. 11; Ex. B, p. 12) The report from the EMG, which was performed on November 22, 1983, read as follows: RESULTS: LOWER: NO ABNORMALITY OF THE EMG. (Ex. 3, p. 12; Ex. B, p. 13) Dr. Adelman succinctly summarized claimant's situation in his discharge summary from the hospital on November 30, 1983: Johanna is a 20-year-old nurses aid who relates the onset of her difficulties on 10-10-83 when while at ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 5 work she was attempting to move a patient. The patient began to fall and Johanna tried to prevent this by twisting and straining her low back. Over the subsequent week she began to experience radiating pain initially down her right leg and subsequently into her left leg as well. She had an extensive trial of conservative therapy as an outpatient including nonsteroidal anti-inflammatory meds as well as a course of Prednisone. She was admitted for treatment and evaluation of intractable low back pain not responding to outpatient management. Exam on admission was remarkable for low back pain with pain radiating down both legs. There was no focal neurologic deficits appreciated on her exam. Lab studies - revealed normal SMA-12, CBC, UA. A spinal fluid done at the time of myelography revealed a protein of 19 and no cells. Johanna had normal lumbosacral spine films as well as a normal CT scan of the lower lumbosacral spine. She also underwent a myelogram which was normal. She did seem to respond to some degree to physiotherapy. However, on discharge she was still troubled by low back pain. (Ex. 31 p. 3; Ex. B, p. 9) Dr. Adelman reported on December 20, 1983, that claimant had reported some improvement. Physical therapy and the TENS unit were helpful, but she still suffered intermittent back pain and pain down her leg (Ex. 2, p. 7). On February 7, 1984, Dr. Adelman said that claimant still had back and leg complaints and that she had begun to suffer headaches also. He stated that he prescribed a medicine for the headaches but had nothing further that he could offer to her. His final report reads as follows: Johanna returns for F/U neurologic appointment today. She continues to experience low back pain with pain down her left leg but does feel that she does get minimal relief with physical therapy which she has been continuing at Mercy. In addition to her low back and leg pain, she also relates a 3 week history of headache which is described as a dull achy sensation in her occipital region across to her bitemporal region. The headache has been there everyday for the past three weeks and may wax and wane to some degree throughout the day. She takes Tylenol with some relief. On her examination, she demonstrates no evidence of papilledema. She does have occipital muscle tenderness. Her deep tendon reflexes in her lower extremities are still well preserved and her straight leg raising is negative. I have informed Johanna that I really do not have anything more to offer her regarding her back and leg pain as we have completely evaluated her with EMG, CAT scan, as well as myelogram. I have suggested that if she does get relief, she should continue to go to ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 6 physical therapy. I have also explained to her that I feel her headaches are related to muscle contraction and have given her some samples as well as a prescription for Midrin to take 1 every four hours as she needs it for headache. If she continues to have difficulty then she has raised the question of possibility of biofeedback therapy for headaches. (Ex. 2, p. 8) Dr. Adelman did not award a permanent functional impairment rating; nor did he impose any limitations or restrictions on claimant's activities. Claimant then began to see Kent Patrick, M.D., an orthopedic surgeon on April 18, 1984, and continued to see him until approximately December 14, 1984. On April 18, 1984, he reported that she complained of back pain, pain in the left leg and migraine headaches. He stated that she had a lumbar strain associated with the event at the nursing home which occurred on October 10, 1983 (Ex. 5, p. 1). He stated that her previous workup was very thorough and that there was nothing further that he could offer. Dr. Patrick concluded as follows: Based on her present examination, I feel she warrants a permanent partial impairment rating of 5% of the body as a whole. She should be able to return to work with a little more time. I would not want her lifting more than 30 pounds and work in the nursing home may be ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 7 something that she should avoid. Any job should avoid repetitive bending, stooping, lifting, or twisting of any amount. (Ex. 5, p. 2; Ex. 6, p. 3, Ex. B, pp. 3 & 4) On May 23, 1984, Dr. Patrick reported that claimant unexpectedly returned to see him and reported some improvement (Ex. 5, p. 2; Ex. 6, p. 4; Ex. B, p. 4). On August 1, 1984, her back pain and headaches were present again. Dr. Patrick ordered a new CT scan (Ex. 5, p. 2; Ex. 6, p. 5; Ex. B p. 4). The new CT scan was performed on August 7, 1984 (Ex. 7). On August 13, 1984, Dr. Patrick reported that the CT scan was normal (Ex. 5, p. 3; Ex. 6, p. 6; Ex. B, p. 5). The report itself read as follows: CT OF THE LUMBAR SPINE. (WITHOUT CONTRAST) SERIAL SECTIONS THROUGH THE LUMBOSACRAL SPINE AT THE L-3 - L-4, L-4 - L-5 and L-5 - S-1 DISC SPACES WERE OBTAINED IN A PATIENT WITH LOW BACK PAIN, MOSTLY TO THE LEFT AND PAIN INVOLVING THE LEFT POSTERIOR THIGH. POSTERIOR LEG AND LEFT FOOT. THE L-3 - L-4, L-4 - L-5 and L-5 - S-1 DISCS APPEAR SIMILAR TO THE PREVIOUS EXAMINATION OF 11/22/83 AND APPEAR TO BE WITHIN NORMAL LIMITS. NO SIGNIFICANT HYPERTROPHIC DEGENERATIVE CHANGES OR BONE ENCROACHMENT ON THE SPINAL CANAL COULD BE IDENTIFIED TO SUGGEST AN AREA OF IMPINGEMENT ON NERVE ROOTS. IMPRESSION: NORMAL LUMBOSACRAL SPINE CT AT THE L-3 - L-4, L-4 - L-5 and L-5 - S-1 LEVELS, ESSENTIALLY UNCHANGED FROM 11/22/83. (Ex. 7, p. 3) On December 14, 1984, Dr. Patrick reported that claimant was pregnant with her second child. At that time she suffered back pain, left leg pain, headaches and some symptoms in her arms. Dr. Patrick concluded this report as follows: Physical exam reveals moderate stiffness in the lumbar spine. Neurologically, there is no evidence of root compression. The left ankle dorsiflexors are minimally weak and there is no other finding to corroborate this. Her scans have been negative. It should be noted that she must have been early in her pregnancy at the time of her last CT scan in August of this year. I feel Mrs. Arrowood continues to have symptoms from a lumbar strain. It is not unusual that these symptoms would be worse during pregnancy. This increase in symptoms during the pregnancy often reverts to its previous level of symptoms. I feel that she has reached her point of maximum healing and that her previous permanent partial impairment rating of 5% of the body as a whole stands. I need not see Johanna back in the future on a scheduled basis. Should she have difficulties, I would be happy to continue in her care. ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 8 (Ex. 5, p. 3; Ex. B, p. 5) Claimant said that she next saw Dennis Rolek, D.O., who has been her personal physician since she was 17 years old. Dr. Rolek gave a report in which he summarized claimant's situation in a letter to claimant's counsel dated October 29, 1985. It reads in part as follows: Mrs. Arrowood first requested my opinion about her back pain on February 4, 1985. At that time, she was pregnant with her first child. I informed her that I could not completely examine her back at that time because of her pregnancy. I informed her that I would be happy to examine her back after she had completely recovered from her pregnancy. Mrs. Arrowood returned on Sept. 27, 1985 for evaluation of her low back pain. After examining her, I felt that she probably had a herniated L-S disc at L4 to L5 and L5 to Sl. I ordered a CT of the lumbar spine to be preformed (sic) at the Outpatient Diagnostic Center. The CT scan was preformed (sic) on October 2, 1985 and was interpreted by Dr. Stephen Cooper (Radiologist) to show bulging annulus at L4 to L5 and L5 to Sl. On October 10, 1985 I informed Mrs. Arrowood about the X-Ray findings. I also informed her that in my opinion and to my knowledge, there is no specific surgical or medical treatment for her problem. I also informed her that sometime in the future her pain may become extremely worse, at which time surgery may be indicated. Relative to Mrs. Arrowood's disability, permanent impairment rating, relative to her body as a whole, I feel that she is approximately seventy percent disabled. In arriving at my disability rating, I have considered many factors including: the actual injury, her education, her previous employer, her lack of potential employers because of the back injury. (Ex. 9, pp. 1 & 2) The actual x-ray and CT reports, which are dated October 2, 1985, read as follows: LUMBAR SPINE: Anatomic alignment and disc spaces are normal. The pedicles, posterior arches and paraspinous tissues are normal. Both S1 joints are intact. there may be some partial lumbarization of S1. IMPRESSION: NO ACUTE ABNORMALITY SEEN. THERE WAS PARTIAL LUMBARIZATION OF THE FIRST SACRAL SEGMENT. CT OF LUMBAR REGION: At L4-L5 there was a minimal bulging annulus. The dural sac is intact. No bone hypertrophy is identified. The intervertebral foramina are normal. No facet joint abnormalities are ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 9 demonstrated. At L5-Sl again bulging annulus is identified. No obscuration of the nerve roots or epidural fat is identified. No bone hypertrophy is seen. The S1 joints are intact. Several cuts through the sacrum were obtained and no abnormalities involving the upper portion of the sacrum were identified. IMPRESSION: MINIMAL BULGING ANNULUS AT L4-L5 AND L5-Sl WITH NO EVIDENCE OF DISC HERNIATION. NO ABNORMALITIES INVOLVING THE VISUALIZED PORTION OF THE SACRUM WERE IDENTIFIED. (Ex. 9, p. 3) On November 8, 1985, Dr. Rolek revised his disability rating downward as follows: Ms. Arrowood's functional disability rating according to the AMA guidelines would be approximately 20%. (Ex. 9, p. 4) On March 12, 1986, Dr. Patrick addressed Dr. Rolek's findings as follows: I have reviewed the information that you provided about Dr. Rolek's examination and the CT scan which was obtained on 10/2/85. I find Dr. Rolek's impairment rating to be somewhat incredible. I am unsure why he felt it necessary to obtain a third CT scan since her previous studies had all been normal. Her neurological exam has always been normal. I would have to review her CT scan from October of 1985 to see whether I would even concur that there is minimal bulging of the disc. For many people this is essentially a normal finding, and I do not think this represents any significant change in her situation. I certainly do not think an x-ray alone is the basis for a large impairment rating since her symptomatology has not corresponded to any abnormalities and films in the past. As of yet, her CT scan has not arrived in this office, and I would appreciate your seeing that it gets here so that I could review it. In addition to this, it sounds as if a repeat exam is in order since I have not seen the patient for over a year. Possibly this will help clear the air as well. (Ex. B, p. 6) Dr. Patrick then reexamined claimant on April 9, 1986, and reported as follows: As you can see, I still feel that she warrants a permanent partial impairment rating of only 5% of the ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 10 body as a whole. I am not sure why Dr. Rolek rated her so highly, but she does not show evidence of radicular problem, and I do not think she warrants an impairment rating as high as he has given her. (Ex. 6, p. 1; Ex. B, p. 8) Dr. Rolek was deposed on June 16, 1986 (Ex. 10). He stated that he has a BS degree in biology, a MS in psychology, a PhD in psychology and a medical degree from the College of Osteopathic Medicine and Surgery in Des Moines in 1975. He stated that he has specialized in family practice for ten years. He first saw claimant on June 1, 1981. He has been her doctor for approximately five years. He had examined the records of the Dietz Clinic, Dr. Adelman and Dr. Patrick. He stated that he did not actually treat her for this condition, but he did recommend an additional CAT scan. He did examine claimant and his examination demonstrated a positive straight leg raising test of 60 degrees on the left and a positive head flexion and foot flexion test on the left at an angle of 45 degrees. Dr. Rolek believed that the injury of October 10, 1983 could cause and was consistent with the symptoms she reported to him. The CT scan which he ordered showed minimal bulging of the annulus at L4, L5 and L5, Sl with no evidence of disc herniation. He said that all he has done since then is to refill her prescriptions for pain medication (Ex. 10, pp. 4-11). Dr. Rolek testified that the injury of October 10, 1983 was the cause of her present problems (Ex. 10, p. 13). Dr. Rolek testified that his records did not disclose any previous back problem. He was not able to find that he had treated claimant for the weightlifting injury in 1982 as claimant has testified (Ex. 10, p. 12). Dr. Rolek explained why, in his opinion, the earlier extensive radiography tests done at Mercy Hospital did not detect the bulging annulus. I believe the principal explanation of this is that the CAT scanner that is owned by the Charter Hospital Outpatient Diagnostic Center is the state of the art as far as CAT scanners. It's a much more sensitive machine, much more accurate machine than the CAT scanner that Mercy Hospital has. It is by far the best CAT scanner in the city, so basically it's a more refined sophisticated test was ordered on a very sophisticated machine. (Ex. 10, p. 14) Dr. Rolek did not know if the radiologist compared his results with the earlier x-rays, CT scans and the myelogram (Ex. 10, pp. 27 & 28). Dr. Rolek explained the basis for his November 81 1985 rating of 20 percent according to the AMA guidelines as follows: Q. What factors, Doctor, did you take into consideration on arriving at a 20 percent impairment rating? ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 11 A. Well, I guess the two major things are her back injury, her -- most any physician if you were forced to go by the AMA guidelines would give her a disability of probably 5 to 8 percent. I also feel that Ms. Arrowood is extremely depressed about her ongoing pain and she developed true psychological and psychiatric problems as a result of her injury, and I feel that this added approximately 15 percent to her disability rating. (Ex. 10, p. 16) Claimant's counsel quizzed Dr. Rolek more about his impairment rating and the following colloquy transpired: Q. I just have one question, Doctor. If you were not using the AMA guide and just using your own professional opinion based upon this problem, would your impairment rating be different than that based upon the AMA guidelines? A. It would be definitely different. Q. Could you explain, would it be higher, lower, the same, and why? A. It would be much higher. The main reason is I think that the AMA Guide for Evaluation of Permanent ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 12 Impairment is probably the most ludicrous text I have ever been forced to use in my life. It makes no difference it the man is a piano player and loses his his (sic) index finger or if he pushes a broom and loses his index finger. They all get the same rating irregardless of training, education, potential employment. I feel that Ms. Arrowood's true disability is probably in the nature of 70 to 75 percent. She has a very, very poor prognosis as far as finding a job. She has tremendous limitations for future insurability, both health and life insurance, disability insurance. As I previously stated, the AMA guidelines is completely ridiculous as far as I'm concerned. (Ex. 10, pp. 33 & 34) Dr. Rolek further elaborated as follows in response to a question from defendants' counsel: Q. Doctor, your indication of a 70 percent factor, when you say in your opinion there's a 70 percent factor here, you're referring to what? A. Okay. I'm referring to going outside of the AMA.guidelines and to consider not only the injury but the potential employability of the individual in view of their education, their family background, I take all of the sociological factors and to give a rating. The AMA guidelines, as I stated, I think is completely ludicrous, completely ridiculous. (Ex. 10, p. 36) Dr. Rolek testified that claimant should not lift over 20 to 25 pounds and should not do any prolonged standing or sitting at work (Ex. 10, pp. 16 & 19). Dr. Rolek said that the bulging disc he discovered two years after the incident of October 10, 1983, would be caused by the incident of October 10, 1983 unless, claimant suffered some other injury that he was not aware of. Dr. Rolek added that he was not aware of any other such injury (Ex. 10, pp. 19 & 20). Dr. Rolek then testified that his records did not show that claimant was involved in an automobile accident of June or July of 1984 (Ex. 10, pp. 26 & 27). Dr. Rolek conceded that his opinion was based upon the fact that claimant had not sustained any trauma after the injury of October 10, 1983 (Ex. 10, p. 29). He added that if claimant had sustained other injuries from an automobile accident, then these injuries could have caused the bulging annulus (Ex. 10, p. 30). Dr. Rolek did not think that the pregnancy would have caused it (Ex. 10, p. 31). Claimant admitted that she was in an automobile accident on August 9, 1984 at which time she rear ended the car in front of her. The 1976 Chevette that she was driving was a total loss and had to be towed from the scene of the accident. Claimant denied that she was injured in this incident, but she stated that she ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 13 did tell Dr. Rolek about the accident when she was in his office on another matter. Claimant related that she did not return to work for employer because Dr. Patrick told her to avoid this kind of work. She added that Dr. Rolek told her to get off her feet and to get a sitting job. Claimant testified that she did sell Jafra products about 11 months after her injury. She grossed approximately $200.00 per month and netted approximately $100.00 per month. She worked four hours a day. She carried a fifteen pound case from the car to the customer's house and back to the car again. She was able to do it but it hurt her back to do so. She added that she currently only takes reorders for Jafra and only works about one hour every two weeks and earns about $10.00 per month. Defense counsel produced an advertising flier stating that a person could earn $600.00 to $1,000.00 per month selling Jafra. Claimant countered that this was misleading because only two people in the United States were able to do that. There was speculation as to whether a person could earn up to $100,000.00 per year with Jafra. Claimant testified that she only works on Jafra as a hobby to get out of the house. She stated that she really didn't care to pursue it in the future. Claimant related that since the spring of 1986, she has been employed at the Good Times Nursery School as a teacher's aid. She watches children, helps with classes, sweeps, washes dishes and helps in the kitchen for $3.35 per hour. At first, she worked six hours a day, five days a week. However, she could not put cots up and down, change the sheets on the cots or handle trays of dishes. The nursery school did not like these limitations and did not call her anymore. Currently she acts as a substitute and watches kids and cleans up the kitchen. She works two and one-half hours per day, five days a week and earns about $30.00 a month from this job. Claimant said that she also,does some light housekeeping work for private clients, but is unable to do heavy housekeeping as in the past. Claimant admitted that she is not currently seeking employment because she is nursing her second child. She admitted that in an earlier deposition she stated that she did not want to work but preferred to be a homemaker and mother. She added that her present intention is that she wanted to be both a mother and homemaker and return to work as soon as her children start school. Claimant testified that she still has migraine headaches that last from a few hours to a few days. These headaches began 10 or 11 months after the injury. Her back pain is more centered in her spine and does not shoot down her leg now. She feels that the injury has adversely affected her emotionally and psychologically. Claimant testified that she can no longer do yard work, clean the car or lift her two year old child. She has trouble sleeping on a flat bed and she has had to purchase a water bed. Her husband is a youth pastor and she can no longer help the kids with the water slide or horseback riding. Claimant granted that ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 14 she did go with her husband and does assist him however, only on the tasks which she feels that she is able to perform. Claimant testified that her ambitions were to become either a registered nurse or a licensed practical nurse. She had also contemplated going to barber school to learn to cut hair. She had also envisioned being a beautician. Since the injury, she stated that she has not been able to perform the task that these jobs require. Now she hopes to study hospital administration at the community college. Claimant testified that she applied for a job at Dahl's grocery store and was told that since she had a back injury, she would have a hard time finding a job there or anywhere else. Richard Arrowood, claimant's husband, testified that he is a youth minister. His wife assists him but she is now limited on how much she can do. She cannot go roller skating, ride on the rides at Worlds of Fun or handle 10 to 12 kids at camp like she used to do. He now does the heavy work at home that she can no longer do. He said that claimant was emotionally and psychologically changed since the injury. She is more edgy and snaps at him more. He testified that ideally she would like to stay home and care for the children, but financially "we decided" that she has to work. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of October 10, 1983 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.w.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 15 percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Claimant did establish that the injury was the-cause of permanent disability. Dr. Patrick said that claimant had a lumbar strain associated with the incident at the nursing home (Ex. 5, p. 1). Dr. Rolek testified that the injury was the cause of her present problem (Ex. 10, p. 13). Dr. Patrick awarded a permanent functional impairment rating of five percent of the body as a whole. He felt that claimant could return to some type of work but recommended that the nursing home may be something she should avoid. He did not want her to lift more than 30 pounds. He added that any job should avoid repetitive bending, stooping, lifting or twisting in any amount (Ex. 5, p. 2; Ex. 6, p. 3; Ex. B, p. 4). Dr. Rolek initially awarded a 70 percent "disability rating" (Ex. 9, pp. 1 & 2). He then revised that downward to a 20 percent "disability rating" according to the AMA guidelines (Ex. 9, p. 4). Then in his deposition he conceded that approximately 15 percent of his rating was for psychological and psychiatric problems. He admitted that going strictly by the AMA Guides, claimant would be entitled to a five percent to eight percent permanent functional impairment rating. Dr. Rolek clearly demonstrated that he was not aware of the difference between medical impairment and disability as explained in the preface to the Guides to Evaluation of Permanent Impairment, second edition, published by the American Medical Association beginning at page vii. Dr. Rolek was apparently assessing industrial disability which is beyond the scope of medical expertise and which has statutorily been placed in the province of the industrial commissioner. Wright v. Walter Kidde Co., Thirty-third Biennial Report of the Industrial Commissioner 237, 239 (Appeal Decision 1977). The brief of defendants' counsel addresses Dr. Rolek's evaluation in the following words:O Dr. Rolek as a family physician, and without any special training in psychiatry or psychology, attempted to ascribe a 15% impairment rating to Ms. Arrowood by reason of psychiatric and psychological problems. (Dr. Rolek deposition, p. 16, lines 7-15). However, Dr. Rolek's medical notes, Joint Exhibit 8, do not reflect any reference to psychological or psychiatric problems and Dr. Rolek provided no treatment or medication for that condition. In addition, Dr. Rolek indicated in his deposition, p. 31 and 32, that he would provide a written supplement indicating the portion of the AMA ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 16 guidelines relied upon by him to render his opinion of a 15% impairment based upon psychiatric or psychological problems. Dr. Rolek failed to provide that supplement. Dr. Rolek also testified at page 36 of his deposition that in his opinion the AMA guidelines were "completely ludicrous, completely ridiculous.O (Defendants' Brief, pp. 6 & 7) Dr. Rolek has failed to establish or substantiate any basis for his opinion concerning psychiatric or psychological conditions in Ms. Arrowood. The claim filed by Ms. Arrowood in this proceeding was for an injury to her back and at no time in this hearing has Ms. Arrowood or anyone on her behalf presented any reliable evidence to establish any psychiatric or psychological problem that would be appropriate for compensation. Ms. Arrowood has never requested or received any treatment or medication for a psychiatric or psychological problem. So much of Dr. Rolek's testimony that ascribes five percent or eight percent of permanent functional impairment for claimant's back injury is accepted as reasonable and consistent with the other evidence in the record. This rating is accepted even though he had no record or recollection of treating claimant for the weightlifting back strain in 1982 for which claimant said that he was the treating physician. His rating is accepted even though he had no knowledge of the automobile accident of August ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 17 9, 1984, where claimant rear ended the car in front of her and totaled out her own vehicle and had to be towed from the accident scene and which resulted in approximately $1,000.00 damage to her car. Claimant denied that she was injured in this automobile accident, but she testified that she did mention it to Dr. Rolek when she saw him for another reason. Dr. Rolek's restrictions were similar to-those of Dr. Patrick. He thought it would be dangerous for claimant to lift more than 20 to 25 pounds. He added that she should not do any prolonged sitting or standing at work (Ex. 10, pp. 16 & 19). These restrictions are reasonable and comport with the other evidence in the record. Dr. Adelman and Dr. Patrick offer the most reasonable and acceptable medical evidence. Their opinions are supported by x-rays, CT scans, a myelogram and an EMG performed shortly after the injury occurred. This evidence constitutes the greater weight of the evidence. It outweighs a CT scan performed two years, one pregnancy and one automobile accident later. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192. Furthermore, Dr. Adelman is a neurologist and Dr. Patrick is an orthopedic surgeon, whereas Dr. Rolek is a family practice physician. A doctor's expertise and board certification may accord his testimony greater weight. Reiland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979). The operative phrase in industrial disability is loss of earning capacity. Ver Steegh v. Rolscreen, IV Iowa Industrial Commissioner Report 377 (1984). At age 23, claimant is young enough to be educated or trained in various remunerative endeavors. Conrad v. Marguette School Inc., IV Iowa Industrial Commissioner Report 74, 78 (1984). In fact, claimant had not yet really established a career or a career pattern at the time of this injury. Her young age is in her favor and naturally reduces her loss of earning capacity. Walton v. B.T.H. Tank Co., II Iowa Industrial Commissioner Report 426 (1981). Claimant is well educated for her age. She completed high school with a B average. She studied modeling at the community college and the management training course for Jafra. Claimant previously felt capable to study to be a registered nurse or licensed practical nurse or to become a barber or beautician. She is bright, adaptable and versatile as evidenced by the varied and numerous jobs that she has been able to do at her young age. There are many kinds of work that claimant is qualified to do. At the present time, she sells Jafra, tends children and cleans homes. Her sales skills and management skills are transferable to many other lines and products. Claimant, however, is unable to engage in many of her former employments, in particular, those that require lifting over 25 to 30 pounds. This forecloses claimant to nursing home work and the work usually performed by a nurse or a licensed practical nurse. It should be stated however, that these latter jobs were only aspirations. Whether claimant could actually have become a ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 18 registered nurse, licensed practical nurse, barber or beautician is only speculative. Stewart v. Crouse Cartage Co., File no. 738644 (Appeal Decision February 20, 1987). The lifting limitations as well as the other limitations about standing, sitting, bending, stooping and twisting foreclose the claimant from many kinds of jobs which require physical strength and dexterity. These kinds of jobs are usually the most plentiful. For this reason, claimant has sustained a serious industrial disability which is diminished only by her young age and adaptability. Michael v. Harrison County, Thirty-fourth Biennial Report of Industrial Commissioner 218, 219 (1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1981). The fact that claimant is not working at the present time because she is nursing her second child, desires to mother her young children and make a home for her husband and family, in no way reduces her loss of earning capacity when she goes to seek employment again when her children are in school. For all of the foregoing reasons and based upon all of the factors that are used to evaluate industrial disability, it is determined that claimant has sustained a 20 percent industrial disability to the body as a whole. Claimant did not sustain the burden-of proof by a preponderance of the evidence that her headaches were caused by the injury of October 10, 1983. Nor did claimant establish the burden of proof by a preponderance of the evidence that she sustained a psychological or psychiatric injury as a result of the injury that occurred on October 10, 1983. FINDINGS OF FACT WHEREFORE, based upon the evidence presented the following findings of fact are made: That both Dr. Patrick and Dr. Rolek indicated that the injury of October 10, 1983 was the cause of permanent impairment; That claimant is in fact permanently disabled; That Dr. Patrick rated claimant's permanent functional impairment at five percent of the body as a whole. That Dr. Rolek indicated that claimant had sustained a five percent to eight percent permanent impairment; That claimant is age 23, young, well educated and can pursue many well compensated forms of employment; That claimant is foreclosed from performing nursing home work or any work which requires lifting over 25 to 30 pounds; and That claimant has sustained an industrial disability of 20 percent of the body as a whole. ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 19 CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously stated the following conclusions of law are made: That claimant sustained the burden of proof by a preponderance of the evidence that the injury of October 10, 1983 caused permanent disability; That claimant is entitled to 100 weeks of permanent partial disability benefits as industrial disability based upon an industrial disability of 20 percent of the body as a whole; and That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of October 10, 1983 was the cause of her headaches or that it caused her to be psychiatrically or psychologically injured. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of ninety-seven and 13/100 dollars ($97.13) per week in the total amount of nine thousand seven hundred thirteen dollars ($9,713.00) commencing on December 14, 1984; That defendants are entitled to a credit for thirty-five (35) weeks of permanent partial disability benefits paid to claimant prior to hearing in the total amount of three thousand three hundred ninety-nine and 55/100 dollars ($3,399.55); That defendants pay this amount in a lump sum; That interest will accrue pursuant to Iowa Code section 85.30; That defendants are to pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33; and That defendants file claim activity reports as requested by this agency pursuant of Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of July, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER ARROWOOD V. VIVIAN LORTZ D/B/A/ MINI CARE CENTER PAGE 20 Copies to: Mr. Robert McKinney Attorney at Law 480 6th St P.O. Box 209 Waukee, Iowa 50263 Mr. Thomas E. Leahy, Jr. Attorney at Law 2222 Grand Ave P.O. Box 10434 Des Moines, Iowa 50306 1402.40: 1803 Filed July 29, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHANNA ARROWOOD, Claimant, vs. VIVIAN LORTZ D/B/A MINI CARE CENTER, File No. 748373 Employer, A R B I T R A T I 0 N and D E C I S I 0 N STATE FARM INSURANCE/ Insurance Carrier, Defendants. 1402.40, 1803 Claimant, who injured her back lifting a patient in a nursing home, was awarded a 20 percent industrial disability based upon a permanent functional impairment rating of five percent awarded by the employer's treating physician and also her own independent medical examiner and personal physician. before the iowa industrial commissioner _________________________________________________________________ : MARVIN E. COLLENTINE, : : Claimant, : : vs. : : File No. 748675 E.N.T. ASSOCIATES, : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY INSURANCE CO., : : 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 June 14, 1991 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 December, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801 Mr. Thomas J. Shields Attorney at Law 600 Davenport Bank Bldg. Davenport, Iowa 52801 9998 Filed December 21, 1992 BYRON K. ORTON LPW before the iowa industrial commissioner ____________________________________________________________ _____ : MARVIN E. COLLENTINE, : : Claimant, : : vs. : : File No. 748675 E.N.T. ASSOCIATES, : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed June 14, 1991. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN E. COLLENTINE, Claimant, File No. 748675 VS. E.N.T. ASSOCIATES, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Marvin E. Collentine, claimant, against E.N.T. Associates, employer, and Aetna Casualty & Surety Company, insurance carrier, for the recovery of benefits as a result of an alleged injury on September 22, 1983. This matter was heard before the undersigned at the Bicentennial Building in Davenport, Scott County, Iowa, on December 23, 1986. It was considered fully submitted at the conclusion of the hearing. The record consists of the testimony of claimant and Ellen K. Stebbens; and joint exhibits A through M, and Cl through C7. STIPULATIONS AND ISSUES Pursuant to the prehearing report filed by the parties, the following stipulations were made: 1. On September 22, 1983, there was an employer-employee relationship existing between the claimant and defendant. 2. On September 22, 1983, claimant suffered an injury arising out of and in the course of his employment. 3. As a result of the injury, claimant suffered temporary disability. 4. Claimant was off work as a result of his injury from September 27, 1983 through December 4, 1983. 5. Claimant's rate of compensation is $518 per week. COLLENTINE V. E.N.T. ASSOCIATES Page 2 6. All requested medical benefits have or will be paid by defendants. 7. Claimant has been paid 75 weeks of permanent partial disability benefits at his rate of $518. Further, claimant has been paid for all time off work. 8. Each party has actually paid the expenses which they now assert as the cost of this action. The issues to be determined in this proceeding are whether or not the injury suffered by claimant resulted in permanent disability, the nature and extent of that disability, and whether claimant is precluded from permanent disability as a result of his return to work. EVIDENCE PRESENTED Claimant testified that he is 54 years old. He is employed by E.N.T. Associates, P.C., as an otolaryngologist, which he said is a subspecialty within the specialized field of ear, nose and throat medicine. Claimant said he attended the University of Iowa from 1950 to 1957 when he graduated with a medical degree. From 1958 to 1962 he served in the United States Navy as a flight surgeon at Portsmouth Naval Hospital. From 1962 to 1966, he obtain specialized training in otolaryngology. In 1966, he moved to Iowa. Claimant advised he is a board certified otolaryngologist and is licensed to practice medicine in Iowa, Wisconsin and Colorado. In addition to his employment with E.N.T. Associates, P.C., claimant also works in his own medical practice, E.N.T. Allergy, P.C. He said this practice was established in July 1984. Claimant recalled that he suffered his injury on September 22, 1983 following an ear operation on a large female patient. Following the operation, claimant was assisting the operating room Staff to remove the patient from the table when he felt a sharp pain in his back. He walked around for about half an hour hoping the pain would subside. Claimant said he continued to work for about a month though in considerable pain. He sought physical therapy treatments from the hospital physical therapist at Mercy Hospital. Because of continued pain and increasing severity of the pain, he consulted Byron W. Rovine, M.D., a neurosurgeon. Claimant reported that at that time there was no way he could continue to function. Claimant stated that he had a CT scan the same day that he COLLENTINE V. E.N.T. ASSOCIATES Page 3 saw Dr. Rovine. The doctor reported to the claimant that he suffered a herniated disc and that surgery would be necessary if conservative treatment was unsuccessful. On November 4, 1983, claimant had a myleogram which revealed a herniated disc and he underwent a laminectomy immediately following. Claimant reported that the day following surgery he felt considerable relief. Claimant testified that he has continued to suffer symptoms in the form of pain in the buttocks, leg and thigh. He said the pain is present on a daily basis, but is not continuous. He said the severity of the pain varies from day to day depending upon his activities. Claimant stated that he no longer lifts patients and has decreased the stooping and bending he has to do while on the job. He has been able to return to jogging and within the past year returned to playing golf. Claimant stated that since his injury he has attempted to change the nature of his practice. He said one of the reasons for establishing E.N.T. Allergy, P.C., was to further this goal. He stated, however, that he would earn more money as a surgeon than as an allergy specialist. Claimant outlined a number of surgical procedures that he no longer engages in due to the time involved. For example, he advised that he no longer does mastoidectomies which is a procedure that can take up to four to six hours. Claimant said he finds it difficult to sit for that period of time, and due to the risk involved by his patients he is unwilling to continue such practices and procedures. He said he has referred such patients to other doctors and word has circulated in the medical community that he no longer does these procedures, so he no longer receives referrals from other physicians. Claimant said he believed that the chronic back pain has affected his mental attitude as well in that he no longer desires to work as much as he did prior to the injury. On cross-examination, claimant stated that he did not believe his skill has been reduced except to the extent that skills are lost as a result of not doing procedures. He summarized by saying he simply does not feel as comfortable with certain procedures as he did when his back was healthy. Claimant admitted that he has not advised any medical boards or hospitals at which he has privileges that he no longer does certain types of surgery. He indicated, however, that he has discussed changing his status from a Class IV to a Class II surgeon. On cross-examination, claimant explained in considerable detail certain types of operative procedures which he now has reservations about doing. On redirect examination, claimant said his income from E.N.T. Associates will diminish as a result of the increased amount of time he is devoting to his allergy practice. He added that he has referred some of the more lucrative operative procedures to his partners because he no longer feels as mentally or physically capable of doing those as he was prior to his injury. Ellen K. Stebbens testified that she presently works for E.N.T. Associates as the office manager. As office manager, she COLLENTINE V. E.N.T. ASSOCIATES Page 4 maintains new patient accounts for each of the doctors in the practice. She explained her record keeping which is disclosed in exhibit C. She further testified that claimant's patient load has decreased at E.N.T. Associates since 1983. She stated, however, that that was not necessarily the case with E.N.T. Allergies. On rebuttal, claimant testified that prior to his injury as senior associate of E.N.T., his earnings were greater than that of his associates. He said that since the injury his associates' earnings have exceeded that of his own. John S. Koch, M.D., testified by way of deposition which was submitted into the record as defendants' exhibit J. Dr. Koch stated that he is an orthopedic surgeon practicing in Cedar Rapids, Iowa. He outlined his educational background and expertise in the field. He is licensed to practice medicine in the states of Iowa and Wisconsin. Dr. Koch testified that he examined claimant in January 1986 for purposes of evaluating claimant's lower back difficulties. Dr. Koch explained the nature of the back problem that claimant had had and the medical treatment received by him in 1983. Dr. Koch explained that in evaluating a patient with a low back difficulty, he uses different standards which include the Guides For Evaluation of Permanent Impairment by the American Medical Association, and Occupational Grading. The doctor indicated that he also utilizes his own professional experience in such evaluations and incorporates therein such factors as general physical makeup, age, prior disease or injuries, health patterns, psychological factors, and economic features. He said he also considers the presence of insurance or litigation. Dr. Koch said that his first task in carrying out an examination of claimant was an interview with claimant in which he obtained a history and description of difficulties he was having at the time of the examination. The doctor said he conducted a physical examination of claimant and discussed with him the activities in which claimant had been involved since the injury. Dr. Koch said that he found claimant had virtually no limitation of the range of motion in his back, and minimal pain on bending. The doctor reviewed in considerable detail his findings of the x-rays which were supplied to him for examination. Based upon Dr. Koch's physical findings, claimant's ability to return to work, the history relayed to the doctor by claimant, and the result of the surgical procedure which claimant underwent, the doctor said that he believes claimant suffered a five percent permanent disability of the body as a whole as a result of the injury of September 1983. He indicated that with the passage of years claimant would have increasing impairment as a result of the continuing wear and tear process going on within his body. The doctor also stated that based upon the examination and his interviews of claimant, it was his opinion that claimant would be able to resume his regular labor practices. The doctor specifically opined that he found nothing which would interfere with claimant's ability to practice otolaryngology. On cross-examination, Dr. Koch stated that it was his opinion that claimant suffered an injury to the L5-Sl disc in the COLLENTINE V. E.N.T. ASSOCIATES Page 5 incident that occurred in September 1983. Included in the deposition is deposition exhibit 1 which is a copy of the written evaluation Dr. Koch performed on claimant. In the written report, the doctor says claimant suffered an aggravation of a preexisting osteoarthritic condition as a result of the injury of September 1983. He also states that claimant would have a ten percent disability, but taking into account his ability to resume his regular practices, the doctor said he would consider claimant, at most, five percent disabled. Deposition exhibit 2 is page 30 of the manual published by the American Academy of Orthopedic Surgeons relating to impairment of the low back. Byron W. Rovine, M.D., testified by way of deposition which was admitted as exhibit K. Dr. Rovine stated that he was a specialist in neurological surgery practicing in Davenport, Iowa. The doctor outlined his educational background and training. He is licensed to practice medicine in the states of Iowa and Illinois. Dr. Rovine testified that he first treated claimant on October 19, 1983. Claimant presented to the doctor with complaints of severe left sciatic pain following some heavy lifting on September 22, 1983. Dr. Rovine said he conducted a physical examination of claimant at that time and concluded that claimant required immediate hospitalization. Additional diagnostic testing was undertaken while claimant was hospitalized and a diagnosis of herniated lumbar disc was made. The doctor said that conservative treatment was initiated, but this failed to improve claimant's condition. Following the initial effort at conservative treatment, claimant was readmitted to the hospital in early November 1983 and a myelogram confirmed a large defect at the L5-Sl disc. Shortly thereafter, Dr. Rovine performed a bilateral laminectomy at the L5-Sl level. The doctor went on to outline the postoperative treatment of claimant. Dr. Rovine last saw claimant as a patient on November 23, 1983. Dr. Rovine said he examined claimant for purposes of evaluation of his condition on May 30, 1984. Based upon the examination and the Guides for Permanent Impairment of the AMA, Dr. Rovine assigned claimant an impairment rating equal to 20 percent of the body as a whole. He said the rating took into account limited motion and residual neurological symptoms. On cross-examination, Dr. Rovine stated that the May 30, 1984 examination of claimant did not include a history of his post surgery activity level. Maurice D. Schnell, M.D., testified by way of deposition which was admitted as exhibit L. Dr. Schnell testified that he was a specialist in physical medicine and rehabilitation. The doctor explained his educational background and training. Dr. Schnell said he is licensed to practice medicine in Iowa, Illinois and North Carolina. Dr. Schnell advised that he had had occasion to treat claimant; his first contact with claimant being January 27, 1984. Dr. Schnell had been asked to evaluate the status of claimant's COLLENTINE V. E.N.T. ASSOCIATES Page 6 back following the September 1983 injury and subsequent surgery. He reviewed the history given to him by claimant as well as a description of the symptoms claimant was suffering at that time. Dr. Schnell also conducted a physical examination of claimant at that time and explained in detail his findings. As a result of that examination, Dr. Schnell concluded that claimant had a status post left hemilaminotomy with discectomy at the L5-S1 level; a mild residual low back discomfort secondary to back strain and incomplete rehabilitation of the lumbar spine post-operatively; there was, however, no evidence of acute lumbar radiculopathy. Dr. Schnell recommended that claimant initiate graduated situp exercises, use proper body mechanics, and use an analgesic for control of pain. Dr. Schnell testified that he last saw claimant on May 23, 1984 at which time he performed an evaluation of claimantOs permanent impairment. The doctor said that he utilized the Manual For Orthopedic Surgeons in Evaluating Permanent Physical Impairment and arrived at an impairment rating of 20 percent of the body as a whole. He explained the various factors which he considered in arriving at this rating which included continued pain in the low back and buttock, absent left ankle jerk, infrequent use of pain medication, and some degree of limited function. Dr. Schnell added that even though claimant had resumed a number of activities since his May 1984 examination,he did not believe the impairment rating should be reduced. Joint exhibit M is a copy of the deposition testimony of claimant. A review of this deposition discloses no significant inconsistencies with claimantOs testimony at hearing. Joint exhibit A is a copy of the written report of Dr. Koch which was reviewed as a part of his testimony in exhibit J. Joint exhibit B is a written report concerning claimant dated September 7, 1984 and authored by Vijay Verma, M.D. Dr. Verma reviews claimant's history and sets forth his findings on examination. Utilizing the AMA Guides, Dr. Verma assessed claimant a 10 percent body as a whole impairment as a result of the injury. Joint exhibit E is a copy of the office notes of Dr. Schnell, the substance of which was adequately discussed by the doctor in his deposition (see exhibit L). Exhibit F is a surgeon's report form signed by Dr. Schnell dated May 25, 1984 which reports the doctor's assessment of claimant's impairment. Exhibit G is a May 30, 1984 report from Dr. Rovine which assesses claimant as having a 20 percent whole man impairment. Exhibits H and I are copies of Mercy Hospital records which report the results of a CT scan and myelogram performed on claimant in October and November 1983. These reports establish that claimant was suffering from a herniated disc at L5-Sl. Exhibits Cl through C7 are various records concerning claimant's job activities both prior to and subsequent to his injury. Cl sets forth the new patient count for claimant for the years 1982 through 1985. According to that exhibit, claimant had 1,063 new patients at E.N.T. Associates in 1982; 841 in 1983; 1,003 in 1984; and, 803 in 1985. Exhibit C2 sets forth the number of surgical procedures performed by claimant for the same period of time as set forth in Exhibit Cl. This exhibit COLLENTINE V. E.N.T. ASSOCIATES Page 7 discloses that in 1982 claimant performed 475 operative procedures; in 1983, 409; in 1984, 365; and, in 1985, 340. The exhibit also sets forth the specific nature of each of these operative procedures. Exhibit C3 outlines the gross receipts produced by claimant at E.N.T. Associates for the years 1982-1985. Those receipts are shown to be as follows: 1982 - $206,114; 1983 $224,545; 1984 - $220,172.94; 1985 - $227,277.02. Exhibits C4 and C5 are records concerning claimant's activities at E.N.T. Allergy, P.C. From July 1, 1984 through December 31, 1984, claimant attended 368 patients and for the year 1985 attended 716 patients. C5 sets forth the monthly record of new patients seen by claimant for the same period of time which total 302. Exhibits C6 and C7 reflect claimant's gross receipt, consultations and surgical procedures for 1986 from January through November. Gross receipts over that period total $171,523.30. He attended approximately 1,945 patients. Finally, exhibit D contains claimant's federal income tax returns for the years from 1979 through 1985. A review of claimant's wage income for those years shows a marked decrease commencing in 1984 from E.N.T. Associates. There is, however, a corresponding increase from E.N.T. Allergy, P.C. APPLICABLE LAW AND ANALYSIS COLLENTINE V. E.N.T. ASSOCIATES Page 8 Claimant has established that he suffered permanent disability as a result of his injury. Although impairment and disability are not synonymous, the existence of impairment indicates disability. In this case it is evident that the claimant has had to change, and in some cases, limit, his practice to accommodate his physical impairment. The mere fact that he was able to return to work for the same employer does not mean no disability has been experienced. The difficult question is not whether he has suffered disability, but the extent of disability suffered. 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; 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 is 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. COLLENTINE V. E.N.T. ASSOCIATES Page 9 See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden v. Big Ben Coal Co., supra. Much of the evidence submitted in this case centers around the functional impairment rating assigned to the claimant. This, however, is but one of the several factors which are considered in assessing disability. The lowest rating, assigned by Dr. Koch, would appear to take into account many factors which relate to disability rather than impairment. Considerations such as claimant's age, education and work experience are properly the province of the industrial commissioner. Consequently, Dr. Koch's opinion is given less weight than that of those doctors who limited their assessment to the physical impact of claimant's injury. Those physicians establish an impairment rating of 10 to 20 per cent. The record as a whole indicates that claimant received, on the whole, a good result from the surgery on his back. Unfortunately, there is little evidence of the physical limitations suffered by claimant beyond functional impairment. Lifting, bending, twisting, standing and sitting limitations are not clearly stated. It would appear that claimant has been able to assess such limitations on his own. There is not the slightest suggestion or indication that claimant imposes on himself any unjustified limitation. Claimant was at all times clear and forthright about his physical problems and did not at any time appear to exaggerate his symptoms. The ultimate question is the extent to which claimant has demonstrated a loss of future earning capacity. Looking at the factors of industrial disability as set forth above, it would at first glance appear that claimant has suffered little loss. He is highly educated, articulate, excellently motivated and has returned to work for the same employer. There is, however, considerable question as to whether claimant has or can return to substantially similar employment. Office records from E.N.T. Associates support claimant's contention that he has reduced his surgical practice since his injury. Claimant asserts that this reduction is the result of his injury. In essence, although he could physically continue to perform, he has made a professional judgment that,it is neither in his nor in his patients' best interests that he continue the same type of practice as he had prior to the injury. The claimant's professional judgment in this matter is given considerable weight. There is absolutely nothing to indicate that this judgment call by the claimant is motivated by any other factor than dedication to his chosen profession. COLLENTINE V. E.N.T. ASSOCIATES Page 10 Claimant has undertaken the establishing of a new medical practice which will allow him to continue to practice in the general field of his specialty, but excluding long surgical procedures. It would appear he is achieving success at this, but it remains his contention that his earnings will suffer substantially. This does not appear to be evident at this time, however. Based upon the record as a whole and all factors relevant to industrial disability, claimant has established an industrial disability of 20% of the body as a whole. FINDINGS OF FACT WHEREFORE, IT IS FOUND: 1. On September 22, 1983, claimant suffered a herniated intervertebral disc at L5-Sl when he moved a patient off the operating table. 2. As a result of his injury, claimant was off work from September 27, 1983 to December 5, 1983. 3. As a result of his injury, claimant suffered permanent physical impairment of 10 to 20 per cent. 4. Claimant is well educated, highly motivated and intelligent. 5. Claimant has undertaken changing the nature of his medical practice as a result of his injury. 6. Claimant has reduced the surgical portion of his practice as a result of his injury. 7. Claimant is credible. 8. Claimant's rate of compensation is $518. 9. Claimant has been previously paid all healing period benefits and 75 weeks of permanent partial disability benefits. 10. As a result of his injury,, claimant has suffered an industrial disability equal to 20 per cent of the body as a whole. CONCLUSIONS OF LAW IT IS THEREFORE CONCLUDED that claimant has proven, by a preponderance of the evidence, that he suffered an industrial disability equal to 20% of the body as a whole as a result of his injury of September 22, 1983. ORDER IT IS THEREFORE ORDERED that defendants pay unto claimant COLLENTINE V. E.N.T. ASSOCIATES Page 11 one hundred (100) weeks of permanent partial disability at his rate of five hundred eighteen dollars ($518.00) commencing December 5, 1983. Defendants shall be given credit for seventy-five (75) weeks of permanent partial disability previously paid. All accrued benefits shall be paid in a lump sum together with interest. Costs are taxed to defendants. Signed and filed this 22nd day of June, 1987. STEVEN E. ORT DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Greg Egbers Attorney at Law 600 Union Arcade Building Davenport, Iowa 52801 Mr. Raymond R. Stefani Mr. Raymond R. Stefani II Attorneys at Law 200 American Building 101 Second Street SE Cedar Rapids, Iowa 52401 1402.40, 1803 Filed June 22, 1987 STEVEN E. ORT BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN E. COLLENTINE, Claimant, File No. 748615 VS. E.N.T. ASSOCIATES, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY CCMPANY, Insurance Carrier, Defendants. 1402.40, 1803 Sole issue in this case was the extent of permanent partial disability suffered by an otolaryngologist when he herniated a disc moving a patient off the operating table. The doctor maintained that, even though he had a good result from surgery, residual pain made him uncomfortable doing microscopic surgery. Doctor's professional concerns were given great weight. He was now limiting practice to allergies which is less lucrative than surgery. Twenty percent PPD awarded. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARVIN E. COLLENTINE, : : Claimant, : : vs. : : File No. 748675 E.N.T. ASSOCIATES, : : R E V I E W - : Employer, : R E O P E N I N G : and : D E C I S I O N : AETNA CASUALTY INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Marvin E. Collentine, claimant, against E.N.T Associates, employer, and Aetna Casualty Insurance Company, insurance carrier, defendants, for recovery of further workers' com pensation benefits as a result of an injury on September 22, 1983. A prior arbitration decision for this injury was filed by this agency on June 22, 1987. As no appeal was taken from this decision, it constitutes the last final agency decision on this matter. On April 10, 1991, a hearing was held on claimant's petition for review-reopening and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and ac cepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits offered and received during the hearing are set forth in the hearing transcript. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant suffered a change of condition re lated to the original injury since that last arbitration award; and II. The extent of claimant's entitlement to additional permanent disability benefits. findings of fact Page 2 Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: A review of the prior arbitration award decision in 1987, indicates that claimant is a board certified otolaryngologist. He suffered his work injury on September 22, 1983, while attempting to lift a patient from an operat ing table. This injury was diagnosed and treated as herni ated disc in the lower spine. The injury left claimant with significant permanent partial impairment. When the injury occurred, claimant was employed by E.N.T. Associates, a professional corporation (P.C.). At the time of the injury, claimant was one of the professional stockholders or owners of E.N.T. Associates. At the time of the injury, E.N.T. Associates was insured by Aetna for workers' compensation injuries suffered by employees. The employee-employer rela tionship between claimant and E.N.T. Associates has never been in dispute. At the prior arbitration hearing and in the hearing in this case, claimant explained he was compelled by his professional standards to reduce his involvement in oto laryngologist surgeries. These surgeries, especially the microsurgeries, are by their nature very delicate and demanding upon a surgeon's physical abilities to remain very still and motionless for extended periods of time. It is also very important in these surgeries that the surgeon's concentration not be distracted by pain. The procedure often utilizes microscopic equipment and tools in close proximity to vital nerves and organs of the body which if injured can have a disastrous effect. In an effort at self-vocational rehabilitation, prior to the last arbitration hearing, the doctor had engaged in the process of changing his practice from surgery to treat ment of allergies. He began his own separate professional corporation, E.N.T. Allergy Associates in 1984. Since that time, claimant's involvement in otolaryngology surgeries have dwindled. At the prior hearing, claimant alleged that his change of practice would have a significant impact upon his earning capacity. The following excerpts from the arbitration decision of June 22, 1987, is important to this decision and shall be set forth below. The ultimate question is the extent to which claimant has demonstrated a loss of future earning capacity. Looking at the factors of industrial disability as set forth above, it would at first glance appear that claimant has suffered little loss. He is highly educated, articulate, excel lently motivated and has returned to work for the same employer. There is, however, considerable question as to whether claimant has or can return to substantially similar employment. Office records from E.N.T. Associates support claimant's contention that he has reduced his sur Page 3 gical practice since his injury. Claimant asserts that this reduction is the result of his injury. In essence, although he could physically continue to perform, he has made a professional judgment that it is neither in his nor in his patient's best interests that he continue the same type of practice as he had prior to the injury. The claimant's professional judgment in this matter is given considerable weight. There is absolutely nothing to indicate that this judgement call by the claimant is motivated by any other factor than dedication to his chosen profession. Claimant has undertaken the establishing of a new medical practice which will allow him to con tinue to practice in the general field of his specialty, but excluding long surgical procedures. It would appear he is achieving success at this, but it remains his contention that his earnings will suffer substantially. This does not appear to be evident at this time, however. (emphasis added). Following this above analysis, it was found in the pre vious arbitration decision that as a result of the work injury, claimant was compelled to change the nature of his practice by reducing the more complicated forms of surgery which aggravated his back problems. At that time, claimant had not ended entirely, his surgical involvement. Claimant was then found to have suffered a 20 percent loss of earning capacity as a result of the injury. With reference to the current claim in review-reopen ing, it is found that claimant has suffered a significant nonphysical change of condition since that last arbitration decision by being compelled to end entirely his surgical practice. Furthermore, he has suffered a much greater loss of earning capacity than was anticipated at the prior hear ing. As noted in the last hearing, claimant continues to be intelligent, articulate and highly credible. Claimant ex plained that he ended all of his surgery practice in May of 1987 due to his back problems caused by the original injury. In the prior proceeding, claimant had felt that he could maintain some surgery practice, but after the arbitration decision he found that this was not possible. He simply is unable to maintain the correct position for the surgery and to maintain the type of concentration needed due to back pain that is required by his patient's and the demands of profession. Claimant explained that in his patient's best interests, he was compelled to discontinue surgery altogether. As was the case in the last agency decision, this deputy commissioner gives considerable weight to the claimant's professional judgment and again there is abso lutely nothing in the record to suggest that this judgment call by the claimant is motivated by any other factor then dedication to his chosen profession. Claimant has now completely ended his relationship with E.N.T. Associates. Claimant explained that due to the surgery practice of his former associates, the cost of mal Page 4 practice insurance of E.N.T. Associates has greatly in creased. As claimant was no longer engaged in performing surgeries, there was no need for him to remain with E.N.T. Associates and share in the increased costs. Therefore, he left the association. Furthermore, as noted by the deputy commissioner in the previous arbitration decision in 1987, claimant's claim of a significant loss in income was not "evident at this time." However, as a result of the claimant's inability to perform any surgery, claimant's current actual earnings are more than 50 percent less than the calendar year 1986, the last full year of earnings prior to the 1987 arbitration deci sion. Claimant states that his former associates, who still perform surgery, earn almost four times his current income. Defendants argue that claimant is the owner of his own professional corporation and sets his own salary and work schedule and any claim of loss of earnings is his own making. However, defendants failed to offer any evidence to suggest that the income figures set forth in exhibit B are bogus or unrealistic. The claimant is not sandbagging his draw from his own P.C. Claimant's testimony that these are real earnings is credible and uncontroverted. Claimant has demonstrated that he has made every reasonable effort to enlarge his current practice and increase his earnings with the use of mailers and new brochures. However, as credibly explained by Dr. Collentine, fees generated by an allergy practice are simply considerably less than surgical fees. The risks are less as well as the fees. Along with the reduced physical demands in the allergy practice, the doctor is compelled to accept a reduced income. Defendants also suggest that claimant's age of 58 years provides an independent desire to retire from a demanding surgical practice and this has caused his reductions in earnings. Again, this is only speculation by the defense and offered no credible evidence to suggest there was any desire to end surgery practice apart from claimant's work injury. Therefore, it is found that as a result of the change of condition, claimant has suffered an additional 40 percent loss of earning capacity as a result of his injury of September 22, 1983, since the last arbitration award of June 22, 1987. conclusions of law I. In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence that he suffered a change of condition or a failure to improve as medically anticipated as a proximate result of his original injury, subsequent to the date of the award or agreement for compensation under review, which entitles him to additional compensation. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa App., 272 N.W.2d 24 (1978). Such a condi tion is not limited to a physical change of condition. A change in earning capacity subsequent to the original award Page 5 which is proximately caused by the original injury also con stitutes a change of condition under Iowa Code section 85.26(2) and Iowa Code section 86.14(2). See McSpadden v. Big Ben Coal Co., 288 N.W.2nd 181 (Iowa 1980); Blacksmith v. All American, Inc., 290 N.W.2d 348 (Iowa 1980). II. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The ex tent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant suffered an additional 40 percent loss of his earning capacity over and above the disability found in the original arbitration award of 1987. Based upon such a finding, claimant is entitled as a matter of law to an additional 200 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 40 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. Benefits are awarded in review- reopening awards from the date of the award. order 1. Defendants shall pay to claimant two hundred (200) weeks of permanent partial disability benefits at the rate of five hundred eighteen dollars ($518.00) per week from the date of this decision. 2. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 3. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee pain in this matter. 4. Defendants shall file activity reports upon payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1991. Page 6 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Greg A. Egbers Attorney at Law 600 Union Arcade Bldg 111 E. Third St Davenport IA 52801-1596 Mr Thomas J Shields Attorney at Law 600 Davenport Bank Bldg Davenport IA 52801 2905; 1803 Filed June 14, 1991 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : MARVIN E. COLLENTINE, : : Claimant, : : vs. : : File No. 748675 E.N.T. ASSOCIATES, : : R E V I E W - : Employer, : R E O P E N I N G : and : D E C I S I O N : AETNA CASUALTY INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2905; 1803 Medical doctor was found to have suffered a non-physical change of condition and increased industrial disability as a result of the original injury which entitled him to an additional 200 weeks of permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE LAREE LAHN Claimant, vs. File No. 748932 GREATER SIOUX EMPIRE d/b/a A R B I T R A T I 0 N O'GARRITY'S, D E C I S I 0 N Employer, and F I L E D AETNA COMMERCIAL INSURANCE DIV APR 19 1989 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in arbitration brought by Diane Laree Lahn, claimant, against Greater Sioux Empire, d/b/a O'Garrity's, employer, and Aetna Commercial Insurance Division, insurance carrier, defendants, for benefits as the result of an injury that occurred on September 19, 1983. A hearing was held in Storm Lake, Iowa, on March 30, 1988, and the case was fully submitted at the close of the hearing. The record.consists of the testimony of Diane Laree Lahn, claimant, Gerald Dubyak, senior claims representative, claimant's exhibits 1 through 10, 10A, 11 through 18, 20 and 21, and defendants' exhibits 1 through 5. Claimant's exhibits 10, 11, 16 and 17 were actually withdrawn by claimant's counsel in the course of the hearing, but remain with the record at the request of defendants' counsel. Claimant's exhibits 23 through 25 were objected to by defendants, the objection was sustained and these three exhibits were excluded from evidence for the reason that they were not served within 15 days prior to the hearing as required by paragraph six of the hearing assignment order. There is no exhibit 19 or 22 admitted into evidence. Both attorneys submitted excellent posthearing briefs. The deputy ordered a transcript of the hearing. OFFICIAL NOTICE Defendants requested that the deputy take official notice [Iowa Administrative Procedure Act 17A.14(4)] of a letter in the industrial commissioner's file dated July 8, 1986, from defendants' counsel to claimant's counsel explaining that the insurance carrier will not authorize medical care and treatment by Horst G. Blume, M.D.; indicating that three other physicians had recommended against surgical procedures or diagnostic tests; and offered continuing care through Alexander Kleider, M.D., claimant's initial authorized physician, or a substitute if he is unacceptable. Claimant did not object to this request by defendants and official notice is taken of the letter of July 8, 1986, from Charles T. Patterson to M.W. Miller, Jr. STIPULATIONS The parties stipulated to the following matters. That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on September 19, 1983, which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability from September 19, 1983 to September 7, 1984; that claimant was paid temporary total disability benefits for that period of time; and that no further claim is made for temporary disability benefits at this time. That the injury was not the cause of permanent disability and that no claim is made for entitlement to permanent disability benefits at this time. That the provider of medical services and supplies would testify that the fees charged were reasonable and defendants are not offering contrary evidence. That defendants claim no credit for benefits paid under an employee nonoccupational group health plan prior to hearing. That defendants are entitled to a credit in the amount of $120.54 for the prior overpayment of medical expenses. That there are no bifurcated claims. ISSUES The sole issue presented for determination is whether claimant is entitled to certain medical expenses which were incurred after September of 1984 and prior to hearing on March 30, 1988. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant testified that she was employed as a waitress for employer on September 19, 1983. She slipped and fell and landed on her right hip in the kitchen with her hands full of things that she was carrying out. Claimant was taken by ambulance to St. Luke's Hospital where she was treated as an outpatient by D.J. Greco, M.D. Claimant testified that she then saw T.H. Mitchell, M.D., and F.J. Kissel, M.D., her family physicians. They referred her to Horst G. Blume, M.D., a neurosurgeon, after a CAT scan showed a minimal bulge in her lower back. The insurance carrier refused to approve Dr. Blume as a treating physician, but gave claimant a choice of two or three other doctors. The carrier recommended and claimant accepted Alexander Kleider, M.D., a neurosurgeon. She saw Dr. Kleider for approximately two or three visits. Dr. Kleider hospitalized claimant for a myelogram, a CT scan and several days of bed rest (tr. pp. 36 & 37). Dr. Kleider ordered physical therapy from Dr. Krisztofiak (full name unknown) who is a physical therapist (tr. p. 18). Claimant also saw Clifford Meylor, D.C., a chiropractor, from February of 1984 (tr. p. 40) until he released her in June of 1984 (tr. p. 41) or July of 1984 (tr. p. 42). All of this treatment transpired before September of 1984 and claimant testified that all of these bills were paid by the insurance carrier (tr. pp. 19 & 20). Dr. Kleider said that claimant did not need surgery and did not need any further medical care (tr. p. 40). Sometime later, after September of 1984, claimant was still having pain in her right lower back that would go into her leg area and she chose to go see Dr. Blume. Dr. Blume sent claimant to Omaha for a MRI (tr. P. 23) and to South Sioux City for an EMG (tr. p. 24). Claimant testified that she also chose to see another chiropractor, Pat Luse, D.C., with the approval of Dr. Blume. Claimant testified that she was also hospitalized at Marion Health Center two or three times by Dr. Blume in 1985 for pain, a CT scan and a myelogram (tr. p. 25). Dr. Blume administered conservative treatment of a brace and physical therapy from December of 1984 until he sent her to the Mayo Clinic in January of 1987 because the same back pain was radiating into her right leg and foot. The Mayo Clinic examined the former tests, took some more tests of their own and administered physical therapy. Claimant testified that she had not sought any medical treatment since the Mayo Clinic and did not anticipate seeking any in the future (tr. p. 21). When claimant finished treating with Dr. Meylor, the insurance company terminated her benefits (tr. p. 44) and claimant obtained an attorney at that time (tr. p. 42). Claimant then took a job as a receptionist at the country club on a full-time basis from 9 a.m. to 5 p.m. for a period of approximately two months (tr. p. 44). Claimant testified that she is currently making a claim for the medical bills which she incurred between September of 1984 and July of 1987 owed to Dr. Blume, Marion Health Center, Mayo Clinic, St. Mary's Hospital, Stone Avenue Medical Clinic (Dr. Cunningham) and Dr. Pat Luse. Claimant testified that the entire amount of these bills was for treatment due to the injury of September 19, 1983 (tr. pp. 26 & 27). Claimant agreed that after Dr. Kissel referred her to Dr. Blume that Mr. Dubyak with the insurance carrier said: "No." Instead he supplied Dr. Kleider as a treating neurosurgeon (tr. pp. 28, 35 and 36). She testified that the insurance carrier did not pay any of these bills after September of 1984. Claimant conceded that she had no authorization to see any of these doctors after September of 1984 (tr. p. 29). Claimant agreed that she did not obtain insurance carrier permission to see Dr. Luse (tr. p. 54). Claimant admitted that when she went to see Dr. Blume, that Mr. Dubyak had explained to her that the insurance carrier would not be responsible for these charges (tr. p. 54). Claimant never did have any back surgery (tr. p. 57). Claimant acknowledged that Dr. Blume never hospitalized her except for the purpose for taking tests (tr. pp. 55 and 56). Claimant agreed that she never received insurance company permission to go to the Mayo Clinic (tr. p. 51). Claimant agreed that the Mayo Clinic could not find anything wrong with her; they did not perform surgery, but rather recommended against it; however, they did suggest a pain control management center which she did not seek out because her pain was diminishing (tr. p. 60). Claimant agreed that she has not had.any medical treatment for this injury since January of 1987 (tr. pp. 60 & 61). When claimant finished with Dr. Meylor and was refused treatment a second time with Dr. Blume, she did not ask to see anyone else and the insurance carrier did not offer anyone else for her to see (tr. p. 78). When claimant was considering the trip to the Mayo Clinic, defendants offered to send her to see Allen Fruin, M.D., in Omaha, rather than to send her to the Mayo Clinic, but claimant did not keep the appointment that the insurance carrier set up for her with Dr. Fruin (tr. p. 109). Gerald Dubyak testified that he is the senior claims representative for the insurance carrier who handled this claim. He testified that the company accepted the claim and paid benefits up until the time claimant's disability ended and then notified claimant that her benefits would be terminated. He averred that when claimant first asked to see Dr. Blume, because Dr. Kissel set up an appointment for her on November 10, 1983, that he told claimant that Dr. Blume's care was unauthorized, but that he would supply another physician, Dr. Alexander Kleider, a neurosurgeon. Claimant expressed no dissatisfaction with this physician (tr. pp. 113 & 114). Dubyak testified that claimant first saw Dr. Meylor without authorization, but upon learning that she had been seeing him, Dubyak authorized Dr. Meylor's care until Dr. Meylor discharged claimant (tr. p. 115). Dubyak said that he learned that claimant had an attorney in November of 1984. He stated that the attorney never asked him for alternate medical care, but did file an original notice and petition and subsequent to that filed an application tantamount to an application for alternate care. At that time, Dubyak arranged for claimant to see Dr. Alan Fruin, a neurosurgeon in Omaha. Dubyak assumed that claimant did not keep that appointment because he never received a bill from Dr. Fruin (tr. pp. 116 & 117). APPLICABLE LAW AND ANALYSIS Claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to be.paid for medical expenses which she incurred after September of 1984, up until the time of the hearing on March 30, 1988. More specifically, she is not entitled to payment of the bill of Horst G. Blume, M.D. (claimant's ex. 18), Marion Health Care Center (no exhibit), Pat Luse, D.C. (cl. ex. 16), the Magnetic Imaging Centre (cl. ex. 12), Mayo Clinic (cl. ex. 13), St. Mary's Hospital (cl. ex. 14) and the Stone Avenue Medical Clinic (Dr. Cunningham, cl. ex. 15). Iowa Code section 85.27 provides that the employer is required to provide reasonable medical care and treatment to an injured worker. It also provides that the employer has the right to choose the care. Claimant can make an application to the industrial commissioner for an order for alternate care. Claimant can choose the medical care in the case of an emergency. Dubyak testified and claimant also admitted that claimant was repeatedly told that Dr. Blume was not an authorized physician and that the insurance carrier would not be responsible for any medical expenses incurred with Dr. Blume. Claimant was given this information on November 8, 1983, when Dr. Kissel set the appointment with Dr. Blume for November 10, 1983. Claimant was told a second time by Dubyak that the insurance carrier would not be responsible for any medical expenses incurred with Dr. Blume when claimant saw him in January of 1985. Dubyak testified that when claimant notified them that she was to go to the Mayo Clinic at the suggestion of Dr. Blume, they offered Alan Fruin, M.D. in Omaha. Claimant admitted that Mayo Clinic care was not authorized, but that she decided to receive it anyway, because she felt that Mayo Clinic would see her sooner than Dr. Fruin. Claimant did not allege an emergency or demonstrate that a valid emergency existed that would justify going to the Mayo Clinic over the objection of the insurance carrier. Dr. Luse, the chiropractor, was claimant's own choice of physician. She did not request permission to see Dr. Luse. Claimant testified that she incurred the Stone Avenue Clinic bill when she was treated by Dr. Cunningham in the absence of Dr. Blume, but she did not obtain any authorization from the insurance carrier in order to see Dr. Cunningham. Claimant offered no justification for incurring these expenses other than the fact that after employer had provided adequate care in September of 1984, she still hurt. It is noteworthy that none of the subsequent care which she chose produced any diagnosis, findings or treatment other than what claimant had already received by authorized physicians. There is a great deal of medical evidence that established that claimant had a number of obstetrical/gynecological problems before, concurrent with and possibly subsequent to the treatment to her back. Also, there is substantial evidence that psychological factors greatly influenced her chronic pain behaviour response (ex. 7). The Minnesota Multiphasic Personality Inventory (MMPI) demonstrated that claimant had many problems over and above the back strain that she incurred at work (def. ex. 4). Claimant did not prove that she was entitled to payment for the care at the Marion Health Center on October 3, 1983, for pelvic inflammatory disease, an ovarian cyst and iron deficiency anemia (def. ex. 1). Nor did claimant prove that she was entitled to payment for the treatment at St. Luke's Hospital on July 30, 1985, for abdominal pain with pregnancy (def. ex. 3). Nor did claimant prove that she is entitled to payment of the treatment at St. Luke's Hospital on August 27, 1985, for abdominal pain secondary to abdominal wall pathology or internal adhesions (def. ex. 5). FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That defendants employer and insurance carrier provided claimant with reasonable medical care and alternate medical care for back strain from the time of the fall at work on September 19, 1983, by providing care at St. Luke's Hospital, Drs. Mitchell and Kissel, Dr. Kleider, Dr. Krisztofiak, Dr. Meylor and Dr. Fruin. That all of the other providers of medical services were chosen by claimant without first having obtained the authorization of the employer and insurance carrier. That the insurance carrier representative clearly communicated to claimant that the insurance carrier would not be responsible for the expense incurred with Dr. Blume, but claimant saw Dr. Blume and that Dr. Blume subsequently ordered an electromyogram test at South Sioux City, a magnetic resonance imaging test at Omaha, arranged an appointment for claimant at the Mayo Clinic and St. Mary's Hospital and approved the treatment by Dr. Luse. Claimant did not prove that any of these medical expenses were authorized, or were reasonable, or were necessary medical treatment for this injury, or that they were incurred as the result of an emergency. That claimant did not request an order for alternate medical care at the time of the prehearing conference and therefore, this issue was not designated as a hearing issue on the hearing assignment order. CONCLUSIONS OF LAW Wherefore, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made. That claimant did not sustain the burden of proof by a preponderance of the evidence and that the medical care and the expenses for it that she incurred after September of 1984, up until the date of the hearing on March 30, 1988, was authorized care; or that it was reasonable treatment for this injury; or that it was emergency treatment for the fall injury of September 19, 1983, when she fell on her left hip in the kitchen at work and strained her back. That claimant is not entitled to the medical expenses for which she has made claim at this time. That claimant did not request an order for alternate care at the time of the prehearing conference and this issue was not designated as an issue on the hearing assignment order. ORDER THEREFORE, IT IS ORDERED: That no additional amounts are owed by defendants to claimant for medical expenses or otherwise. That since claimant was not allowed any medical expenses, that it is not possible to award defendants a credit in the amount of one hundred twenty and 54/100 dollars ($120.54) for the overpayment of medical bills as stipulated to by the parties. That the costs of this proceeding are charged to claimant, except the cost of the transcript of the hearing which is charged to defendants, pursuant to Iowa Code section 86.19 and Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Industrial Services Rule 343-3.1. Signed and filed this 19th day of April, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Marvin (Wally) Miller Attorney at Law 216 W. Main St Cherokee, IA 51012 Mr. Charles T. Patterson Attorney at Law 200 Home Federal Bldg PO Box 3086 Sioux City, IA 51102 51401, 51402.60, 2501 Filed April 19, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE LAREE LAHN, Claimant, vs. File No. 748932 GREATER SIOUX EMPIRE d/b/a A R B I T R A T I 0 N O'GARRITY'S, D E C I S I 0 N Employer, and AETNA COMMERCIAL INSURANCE DIV Insurance Carrier, Defendants. 51401, 51402.60, 2501 Claimant incurred a great deal of medical expenses that were not authorized after claimant was told that it was not authorized. Employer provided reasonable care and alternate care. Husband's health care provider forced claimant to obtain an attorney, file a petition, have a hearing and get a decision, she was not entitled to workers' compensation before they would pay his claim for dependant medical benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER __________________________________________________________________ SHARON K. OBORNY, Claimant, File No. 749017 VS. A P P E A L WILSON FOODS CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. __________________________________________________________________ STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding permanent partial disability benefits and healing period benefits. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 7; and defendant's exhibits A and B. Both parties filed briefs on appeal. ISSUES The issues raised by defendant on appeal are: 1) Whether the deputy erred in considering any evidence on neck and back injury; 2) the nature and extent of the disability; 3) whether there is a causal connection between the injury and the disability. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. On October 21, 1983, claimant was cutting out kidneys on the kill floor of defendant and she had to separate two sows by pushing with her left arm and pulling with her right arm. She felt something snap in her back. She worked for about another week and began to experience a tingling down her right arm and one of her hands became numb. Keith Garner, M.D., examined her and referred her to John Connolly, M.D. She attempted to return to work doing a different job but was eventually hospitalized by Dr. Connolly in December 1983. She subsequently returned to work at another job but was unable to perform that job also and eventually separated from defendant. She saw M.E. Wheeler, M.D., at Dr. Garner's suggestion. In a letter dated August 27, 1984, Dr. Connolly wrote to Dr. Garner: OBORNY V. WILSON FOODS CORPORATION age 2 I reevaluated Sharon Oborny for the neck and right shoulder pain. She is still having symptoms in the region of the rhomboids and trapezius muscles of the right shoulder with repetitive activity. She said the pain does not bother her until she starts using the arm in an overhead position, and then it comes back again. She said she could not get back to work at the packing house and wanted our evaluation of the problem at this time. (Emphasis added.) When I examined her, she was in no acute distress and had essentially full range of motion. She localized pain in the region of the infraspinatrus and rhomboid muscles of the right shoulder with forceful external rotation, or pinching her shoulder blades together. Her persistent symptoms may have, I thought, been consistent with a suprascapular nerve entrapment. Consequently, I asked Dr. Streib to reevaluate her neurologically and electromyographically. He did a complete evaluation and found no evidence of suprascapular nerve impingement. Consequently, I think her major problem is that of rhomboid weakness, and weakness of the shoulder rotators. I instructed her in a program of exercises and advised her it would be best to quit her job at the packinghouse if this seems to be the source of her shoulder complaints. However, I do not think she has any functional impairment at this time, and that her problems are only related to pain when she starts using the shoulder vigorously. I believe her symptoms will subside if she works.on a program of shoulder strengthening exercises. (Emphasis added.) (Joint Exhibit 3) In a follow-up letter dated September 7, 1984, he wrote: At the present time I could find no objective evidence of functional impairment in her neck and shoulder and her main problem is complaints of pain. However, based oh the best of our ability to evaluate objective functional impairment I cannot state that she has any at this time. (Emphasis added.) (Joint Ex. 3) Dr. Wheeler examined claimant on one occasion. That examination lasted about ten minutes. Dr. Wheeler gave claimant a five percent permanent partial impairment rating for her right upper extremity. However, he also stated that "I doubt she will be able to return to her previous employment." APPLICABLE LAW OBORNY V. WILSON FOODS CORPORATION age 3 The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS At the time of prehearing neither party indicated that there was an issue of causal connection between claimant's injury and any disability on which claimant was basing this claim. The parties also stipulated to causal connection in the prehearing report filed by them at the beginning of the hearing. Then, at the beginning of the hearing it was stated: MR. SAYRE: It is the position of defendant that some of the injuries -- some of the disability referred to in the doctors' reports, which will be included in the exhibits submitted, pertain to congenital difficulties with the claimant's back which have no relationship to the injury at the place of employment. So our position is not -- Our position is that, yes, there is some injury and some disability, quote, temporary and permanent caused by the injury at the plant but not to the extent of all the injuries set forth in the doctors' examinations, as they're not being causally related to the injury of the plaintiff. THE COMMISSIONER: That particular report that you're making reference to, was that prepared prior to November 25th, 1985? MR. SAYRE: Well, the doctor discusses -- Yes, I'm sure it was. And the doctor discusses various situations and refers to them as being a congenital back problem. THE COMMISSIONER: If you know, what's the date of that report? MR. SAYRE: There's a July 18th, 1984, report of Dr. Connolly And -- THE COMMISSIONER: When did you receive a copy of that report? MR. SAYRE: We would have received -- I can't actually tell you when we received it. THE COMMISSIONER: Prior to November 25th, 1985? MR. SAYRE: Yes. THE COMMISSIONER: Any further comment at this point? MR. SAYRE: Well, all I'm saying is, if I understand it, what you may be talking about, just the fact that the doctor may talk about other medical problems of the patient or the claimant in the examination of the claimant, I didn't figure it OBORNY V. WILSON FOODS CORPORATION age 4 foreclosed us from arguing that those have no relationship to the injury. The -- the rating which -- The permanent partial and permanent rating which the doctor gives has -- does not deal with those problems anyway. (Transcript, pages 4-6) It is true that just because the parties stipulate as to causal connection they do not necessarily stipulate to disabilities that a claimant may have which are unrelated to the incident which gives rise to the action. However, for the defendant in the present case to argue that matters concerning anything but the arm was not stipulated to has very little merit. In her petition claimant alleged problems in the shoulder which would be beyond the schedule of the upper extremity. Also, of importance is the joint exhibits which contain medical reports indicating cervical spine complaints and back pain. There is no surprise to a party when their own exhibits disclose the problem. Notwithstanding the fact that defendant failed to properly raise the issue, a review of all the evidence indicates claimant has carried her burden of proving a causal connection between her injury and the disability upon which she bases her claim. The parties disagree as to the nature and extent of claimant's disability. Defendant argues that if there is any permanent disability that disability is to a scheduled member. Claimant argues that the deputy was correct in determining that the disability was to the body as a whole. Claimant started working for defendant in May of 1983. There is no indication that claimant had any physical problems until her injury at work on October 21, 1983. Dr. Connolly opines that claimant has no permanent impairment and then states that claimant should seek other employment because of the pain she has in her job with defendant. Dr. Wheeler indicates that claimant has "chronic muscle strain pattern, rhomboid area, right shoulder." This is obviously a problem to the body as a whole. Yet he then opines that claimant has five percent permanent impairment to the upper extremity. Although the greater weight of evidence indicates that claimant's impairment may only be slight, impairment is only one of the factors in determining industrial disability. Claimant is 33 years old and had no physical restrictions prior to her injury on October 21, 1983. Claimant's physicians agree that she should refrain from doing heavy or,repetitive work at a packing plant or elsewhere. Claimant is presently working but has experienced an actual reduction in her earnings. Claimant is a high school graduate with no other formal education. She appears to be a reasonably intelligent person and, therefore, seems capable of pursuing additional education or training. Claimant is well-motivated to improve her physical condition and to remain employed. Claimant is right handed and her right side was most affected by her injury on October 21, 1983. OBORNY V. WILSON FOODS CORPORATION age 5 Taking all appropriate factors into account, it is concluded that claimant's industrial disability is 20 percent. FINDINGS OF FACT 1. Claimant was born on May 11, 1952. 2. Claimant is right handed. 3. Claimant graduated from high school in 1974 and has no other formal education. 4. Claimant is reasonably intelligent and is capable of pursuing additional education or training. 5. Claimant started working for defendant in May 1983. 6. Claimant injured her right shoulder, right arm, and back on October 21, 1983 while working for defendant. 7. Claimant's injury of October 21, 1983 resulted in impairment to her whole body, not just her right arm. 8. On October 21, 1983, claimant was earning $6.50 per hour at defendant, plus fringe benefits such as health insurance. 9. Claimant currently works as a kitchen aide for $3.85 per hour. 10. Claimant is now physically incapable of doing heavy or repetitive labor. 11. Claimant is well-motivated to improve her physical condition and remain employed. 12. Claimant was in good health prior to October 21, 1983. 13. Claimant reached maximum healing on September 7, 1984. 14. Claimant has an industrial disability of 20 percent. CONCLUSIONS OF LAW Claimant met her burden in proving she has an industrial disability of 20 percent as a result of her injury on October 21, 1983. Claimant's permanent partial disability benefits should commence on September 7, 1984. WHEREFORE, the decision of the deputy is affirmed in part and modified in part. ORDER THEREFORE, it is ordered: That defendant pay unto claimant healing period benefits for OBORNY V. WILSON FOODS CORPORATION age 6 the days she missed work from the date of injury until September 7, 1984 at a rate of one hundred sixty-three and 98/100 dollars ($163.98) and one hundred (100) weeks of permanent partial disability benefits at the same rate. That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendant be given credit for benefits and interest already paid to claimant. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendant shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by the agency. Signed and filed this 30th day of December, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law OBORNY V. WILSON FOODS CORPORATION Page 7 P.O. Box 1194 632-640 Badgerow Bldg. Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine Street Cherokee, Iowa 51012 1108.50-1402.40-1803.1 Filed December 30, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SHARON K. OBORNY, Claimant, File No. 749017 VS. A P P E A L WILSON FOODS CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 1108.50 - 1402.40 Notwithstanding the fact that defendant failed to properly raise the issue, claimant carried her burden of proving a causal connection between her injury and her disability. 1803.1 Claimant's chronic muscle strain pattern, rhomboid area, right shoulder is disability to the body as a whole.