BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY McMILLEN, Claimant, vs. File No. 761229 ROYAL BUICK, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNIVERSAL UNDERWRITERS INS. CO. Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Larry McMillen, claimant, against Royal Buick, employer, and Universal Underwriters, insurance carrier, defendants, for benefits as a result of an injury which occurred on March 19, 1984. A hearing was held on July 14, 1987 at Council Bluffs, Iowa and the case was fully submitted at the close of the hearing. The record consists of the testimony of Larry McMillen (claimant), Sharon McMillen (claimant's wife), James T. Rogers (claimant's vocational rehabilitation specialist), Ronald J. Eischen (defendants vocational rehabilitation specialist), joint exhibits one through 46, claimant's exhibit one and defendants' exhibit A. STIPULATIONS The parties stipulated to the following matter. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the claimant sustained an injury on March 19, 1984 which arose out of and in the course of employment with employer. That the injury was the cause of some temporary disability and also the cause of some permanent disability. That the type of permanent disability is industrial disability to the body as a whole. That the rate of compensation is $234.75 per week. That claimant's entitlement to medical benefits is no longer in dispute. McMILLEN V. ROYAL BUICK Page 2 That defendants do not seek credit for any previous payment of benefits under an employee nonoccupational group health plan. That defendants are entitled to a credit for all workers' compensation benefits paid prior to the decision in this case at the rate of $234.75 per week. That there are no bifurcated proceedings. ISSUES The parties submitted the following issues for determination at the time of the hearing. What is claimant's entitlement to temporary disability benefits during a period of recovery. What is claimant's entitlement to permanent disability benefits, and more specifically whether claimant is entitled to permanent total disability benefits either as an odd lot employee or otherwise. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant testified that he was born on January 6, 1936. He was 48 years old at the time of the injury and 51 years old at the time of the hearing. Claimant called attention to the fact he was wearing a TENS unit, which he has worn since 1984 to mask his pain. Claimant is a high school graduate. He also has received some college credit for attending General Motors courses. Claimant began working packing groceries in high school. He then began working in automobile dealerships which continued on into full-time employment after high school. Past employments include maintenance repair mechanic, parts department counterman and manager and automobile dealership general service manager. As a hobby, claimant designs garages and has one of the most complete wood working shops in Council Bluffs. Formerly, he played golf, tennis and volleyball prior to this injury which occurred on March 19, 1984. Claimant testified that he has not been able to work in his woodworking shop due to this injury. Claimant started to work for this employer in late 1982 or early 1983 as parts and service manager. Because of an internal dispute claimant stepped down from this job and became an automobile salesman. The sales job did not turn out to be as remunerative as he thought it was going to be. Claimant testified that employer wanted him to return to the service manager job just before this injury occurred. This injury has prevented him from taking the service manager job (Transcript pages 30-32). At the time of the injury, on March 19, 1984, claimant was McMILLEN V. ROYAL BUICK Page 3 working as an automobile salesman. There was a lot of snow that day. They were moving cars inside but the cars kept getting stuck. While pushing a car claimant slipped, came down on his knee and jammed his back real bad causing severe pain in his lower back. Claimant testified that Robert M. Cochran, M.D., had performed an earlier surgery on his back on October 29, 1982. Back then, claimant lost two and one-half to three months from work after the surgery and then returned to work without any pain or disability or any problems what so ever until the present injury. After this injury claimant was able to work for about five days but then went to see his former surgeon, Dr. Cochran, because he felt so terrible. He stated that the pain was unbearable. Shots did not work and claimant was hospitalized for a myelogram, CT scan and a second surgery. After the second surgery claimant had severe pain in his left buttock and hip that ran down into his left leg. Since the last surgery his fourth and fifth toes on the left foot are always numb. The front of his right leg is numb from the top of his leg to his knee. Claimant testified that he also has bowel and bladder problems. At this point in his testimony claimant broke down emotionally. A short recess was held for claimant to recover. Claimant testified that he suffered real bad pain in his lower back down into his legs. He has shooting pains into his groin. When he tries to sleep at night, his throat closes off because of the tube that they put down his throat at the time of his second surgery for this injury. Claimant demonstrated in the courtroom that he could only walk very slowly and very carefully. He stated that when he feels good he can walk about one and one-half blocks. Standing increases his pain. He can only sleep a couple of hours at a time. He can sit in his own chair at home for about one-half hour. He has to lay down four to five times a day. He does not lift at all. He is currently taking two pain killers which do not kill the pain but only reduce it. Claimant testified that he could not work a steady job at all because his idea of work is "dedication", that is, working eighteen hours a day, six or seven days a week. Claimant admitted that he had never gone out and looked for any work since the date of this accident (Tran. p. 48). Claimant said that he did not believe that he could be a dependable employee due to his pain. Ron Eischen, defendants' vocational rehabilitation specialist, asked claimant to start back to work a few hours at a time. Claimant told Eischen that he could pick up the phone and get a job right now, but did not think that he could do the job, and then he would lose his reputation in automobile dealership circles. Claimant testified that his physical condition has gotten worse rather than better since he last saw Eischen approximately one and one-half years ago --- much worse. Claimant added that he is getting worse all of the time. He testified that he has gone to pieces since then. The pain is more severe and goes down his leg farther. Claimant testified that he also talked to another vocational rehabilitation specialist retained by his own counsel by the name of Jim Rogers. McMILLEN V. ROYAL BUICK Page 4 Claimant said that his wife drives the car 99 percent of the time. He has only driven a couple of times since the injury. Claimant said that he could not perform the job of security guard or self-service gas station attendant. Claimant testified that he has not been able to travel with his wife when she went to Germany and Florida to see his grandchildren. She went without him because he cannot travel. Claimant admitted that he did not complete the pain clinic because he refused to enter the part about a mental acceptance of pain. Instead, he wanted to get rid of his pain which he knew they could do, but they were not doing it. Claimant was under the impression that there was a surgical solution to his pain and that he was not receiving it. Claimant also conceded that before he left the pain clinic he could ascend and descend twelve flights of steps even though now he can only walk about a block. Claimant also tacitly admitted that the pain center terminated his treatment because he would not cooperate with them. He also admitted that he refused to try to work on a part-time basis because he did not think that he would dependable. He added that his reason for refusing to work was because he could not see a doctor who would get rid of his pain (Tran. p. 59). Claimant testified that he had not seen Dr. Cochran for over a year. He stated that he uses a TENS unit, not because a doctor has prescribed it, but rather because it works and relieves his pain. Claimant acknowledged that he was receiving about $1,300.00 to $1,350.00 per month in tax free benefits from a combination of workers' compensation benefits and income disability benefits from a private insurance policy. He further testified that before the injury his income was approximately $1,000.00 to $1,100.00 dollars per month (Tran. pp. 63, 68 & 69). Claimant admitted that he made one vacation trip to Florida with his wife since the injury but that his activities were quite limited after he arrived. Claimant testified that he hoped to be able to work again someday, but he thought he was totally disabled at the time of the hearing. Claimant was asked if he would work with doctors and vocational rehabilitation specialists toward returning to active and gainful employment again. Claimant indicated that he would not do so unless and until he got rid of his pain. When claimant finished his testimony, his counsel requested permission for claimant to leave the court room and go home because claimant wasn't going to be able to last the day. Permission was granted. Sharon McMillen, claimant's wife of 25 years, testified that she has been employed for 22 years and earns $30,000 per year. She described her husband as an active individual prior to this injury. Now, he can do very little. They used to walk two miles McMILLEN V. ROYAL BUICK Page 5 a day, but since he became worse, she now has to help him home if they try to go around the block. She testified that claimant's daily activities include back exercises, he walks up and down the driveway and puts the clothes into the washer and dryer. She corroborated that his pain keeps him from sleeping at night. She also confirmed that his first back surgery in 1982 did not interrupt his life-style. She affirmed that claimant's condition has deteriorated in the last year or so. She added that she has to do almost everything alone while claimant stays home by himself a majority of the time. At the close of his wife's testimony, claimant's counsel again requested permission for claimant to leave the hearing to go home because he was in intractable, excruciating pain. Permission was again granted. James T. Rogers testified that he is the owner and operator of his own company as a professional rehabilitation counselor. He interviewed claimant and examined claimant's medical and employment history. He determined that claimant was motivated to return to work. Rogers testified that he did not believe claimant could return to work as a car salesman or perform what is defined as light work because he cannot do walking, standing or getting into and out of cars. He did not feel claimant can be a salesman and be around customers because he is incontinent. He did not think claimant was capable of performing full time, gainful employment, eight hours a day, five days a week, 50 weeks a year because of the severity of his pain and his functional restrictions. Rogers testified that he did not know if claimant's bowel and bladder incontinence was related to this injury. Rogers admitted that he was incorrect by reporting that Dr. McKinney said that claimant was unemployable due to his pain, except in the most trivial pursuits, because Dr. McKinney never made such a statement. Rogers agreed that a client who refused to engage in work hardening until he was 100 percent pain free would be a very difficult person to help. Rogers granted that he may have overlooked the report of the physical therapist who said that claimant refused to try to work until he was pain free, but he did not think that this was significant. Rogers acknowledged that claimant's complaints of severe pain were subjective and not supported by objective medical evidence or an anatomical explanation. Rogers agreed that no doctor told claimant that he could not work at all. Rogers also admitted that he did not give claimant any psychological tests to see if claimant's subjective complaints were due to secondary financial gain motives although such tests do exist and are available to use. Ronald J. Eischen testified that he is a professional rehabilitation consultant and the proprietor of his own firm. He saw claimant several times and had examined basically the same medical and employment data that Rogers had examined. He participated in the pain clinic experience with claimant. He said that claimant cooperated with the program up to a certain point, that is the point when it was time to start back to work maybe as little as one hour at a time, which is described as work hardening. Rogers described that the program is designed to gradually restore an employee to full employment. He said that McMILLEN V. ROYAL BUICK Page 6 claimant refused to participate in the work hardening portion of the program because he was not completely free of pain. Eischen said that claimant's position was that as soon as he had no pain at all, he would go out and get his own job. The goal of the pain center is to teach claimant to function at the highest possible level while still dealing with active pain. Eischen testified that claimant's ability to climb twelve flights of steps and to perform all of his physical exercises did not match up with claimant's complaints that he could barely walk up and down his driveway. Eischen testified that he was hired because a previous vocational rehabilitation specialist was not able to arrive at a good working relationship with claimant. After claimant refused to participate in the work hardening program, the treatment at the pain center ceased because there was nothing more to offer if claimant was not going to participate in the program. Eischen stated that his professional involvement in the case ended at that time too. Eischen testified that claimant was rehabilitatable if claimant would have participated in the pain program at the University of Nebraska Medical Center. By dropping out of the program, claimant voluntarily extended the nature of his disability. The witness said that there are a number of sales jobs that claimant could perform within Dr. McKinney's restrictions. Eischen said that claimant could be a parts counter clerk or a service writer in a garage. Claimant's sales background is a transferable skill. Irrespective of whether claimant's bladder and bowel problems are work related or not, claimant can be trained to work with these problems without embarrassment. Such persons can be successfully placed in employment. Eischen added that he first learned of these bowel and bladder problems from claimant's attorney one and one-half years after the surgery in 1986. These problems were not documented in any of the medical evidence. Eischen said that claimant could be returned to meaningful and gainful employment. He said that claimant could perform his old automobile sales job if he would cooperate. He said that claimant was not permanently and totally disabled because claimant was employable full time. Eischen granted that work hardening was not successful for every person. He said that he believed claimant did have pain; he did not know how severe it was; but what claimant was saying and doing were incongruous. He granted that claimant now walks with a limp which he did not do previously. Eischen conceded that pain is a distraction and makes it difficult to concentrate while trying to work. Nevertheless, claimant was functioning in the pain program until he decided not to cooperate with it. This occurred at the point in time where claimant was asked to return to work within the limits of his ability. Rogers testified in rebuttal, that in his opinion, claimant could not perform the job of auto parts counter clerk or service writer. Rogers based his opinion on the Dictionary of Occupational Titles (DOT). Eischen testified that he also followed the DOT but that he did not believe the DOT was the ultimate end and final authority on what a given person can or McMILLEN V. ROYAL BUICK Page 7 cannot do. Eischen said that a vocational rehabilitation consultant did not determine disability. He added that he determines employability. Rogers said that as a vocational rehabilitation consultant he was able to make a determination of total disability because he made this decision several times when he was employed as a vocational rehabilitation consultant for the state of Iowa. Rogers testified that he rejected Dr. Morrison's opinion that claimant could return to work because Dr. Morrison's opinion was not consistent with Rogers' own information and experience in this case. Rogers granted that no doctor told claimant that he could not or should not participate in the work hardening program. Rogers knew of nothing in the record that would make claimant's failure to participate in the work hardening program reasonable, other than claimant's own subjective complaint of pain. The following is a brief summary of the medical evidence. Claimant saw Dr. Cochran, an orthopedic surgeon at Methodist Hospital in Omaha, on March 23, 1984. Claimant's admitting diagnosis was as follows. Lumbar strain. Possible ruptured lumbar disc. History of emphysema x 9-10 years. McMILLEN V. ROYAL BUICK Page 8 Congenital hemophilia requiring coagulants on any surgical procedures. Status post laminectomy in October, 1982. [Ex. 46(2)] When claimant was discharged on April 30, 1984, Dr. Cochran's diagnosis was recurrent lumbar disc injury (Ex. 45). The record shows that claimant returned to work from April 2, 1984 to June 20, 1984 [Exs. 38(2) & 43(l)]. Claimant was hospitalized again for recurrence of his lumbar low back pain on June 20, 1984 [Ex. 43(l)]. Claimant complained of numbness and tingling in the left leg into the left lateral two toes. A myelogram showed a disc fragment at L-5, S-1. Surgery was performed on June 26, 1984 and the extruded disc fragment was removed. Claimant was discharged on July 2, 1984 (Ex. 41). Dr. Cochran said that the protruded intervertebral disc at L-5 was caused by pushing the car in March of 1984 (Ex. 40). Later in 1984, Dr. Cochran's notes show that claimant continued to have back pain, this time on the right after the surgery, and he also suffered from depression [Ex. 38(4)]. On March 19, 1985 claimant completed back school, wore a TENS unit and performed exercises twice a day (Ex. 37). Claimant was readmitted to Methodist Hospital on April 23, 1985 for another myelogram (Exs. 35 & 36). Charles H. Waters, III, M.D., an orthopedic surgeon, was asked to give a second opinion. Dr. Waters said on April 25, 1985 that x-rays and the myelogram showed a left lateral defect of fairly small size at L-5, S-1 that this was probably post-surgical epideral scar changes which were secondary to contraction of the disc area. The right side looked clear. Dr. Waters explained to the patient, Dr. Cochran and Jack Lewis, M.D., claimant's personal physician that there was nothing that a third disc surgery would benefit. Dr. Waters added that the patient's absence of relief in a back brace made fusion surgery undesirable because it was unlikely to be successful (Exs. 32-34). Dr. Cochran said that this hospitalization and myelogram showed no evidence of arachnoiditis, spinal stenosis or a new herniation. He did not know what was causing this severe disabling pain. Dr. Cochran sent claimant to see John C Goldner, M.D., a neurologist. Claimant saw Dr. Goldner on June 14, 1985. Dr. Goldner mentioned claimant's prior back problems in 1971 and 1982 on the left side and commented that claimant did return to work after these problems (Ex. 19 & 26-29). Dr. Goldner made these findings. It was my impression on June 14, 1985, that Mr. McMillen had musculoskeletal low back pain with probable residual right L3 or L4 radicular sensory symptoms. An EMG and nerve conduction study was done at the Nebraska Methodist Hospital on June 18, 1985. McMILLEN V. ROYAL BUICK Page 9 This was entirely normal. I discussed these results with Mr. McMillen and reported them to Dr. Cochran. I told them both that unfortunately I had no recommendations relative to further treatment. I believe he will have chronic musculoskeletal low back problems and that he has a 20% permanent partial impairment based on limitation of movement, pain, and the two previous lumbar laminectomies that have been done. His neurological findings now are different than they were in 1971 in that his current findings suggest a right radicular problem where as his 1971 findings suggested a left radicular problem. He will certainly be limited in the work that he can do from the standpoint of his chronic low back pain. He will be limited relative to lifting and to the amount of activity he can do in sitting or standing for any length of time. I would recommend that you contact Dr. Cochran relative to his opinion as to the details of what Mr. McMillen can and cannot do since Dr. Cochran is Mr. McMillen's orthopedic surgeon. We would be glad to discuss this further with you at any time. (Ex. 19) An independent medical examination was performed by Michael J. Morrison, M.D., on July 16, 1985 for employer. He reviewed that claimant had been seen by Dr. Cochran, Dr. Waters and Dr. Goldner. A CT scan, myelogram, EMG and nerve conduction study were all normal. Treatment had been medication, physical therapy and brace immobilization which aggravated claimant's symptoms. X-rays taken by Dr. Cochran were unremarkable except for claimant's previous back surgery. Dr. Morrison recommended certain exercises along with bicycle riding and swimming which should return claimant to work in four to six weeks as a car salesman (Ex. 24). Dr. Morrison referred claimant to Ron Eischen and the pain management center at the University of Nebraska Medical Center in August of 1985 where claimant was treated by Giuseppe Siracusano, a registered physical therapist. Siracusano reported that claimant did well until it was suggested that he work. The registered physical therapist also reported that claimant was looking for a surgical solution to his pain problem. Siracusano reported as follows to Dr. Cochran on November 20, 1985. Mr. McMillen has made significant improvements in his overall flexibility and exercise endurance. He has progressed to walking three times per day and climbing [sic] 12 flights of stairs twice daily. It was at this point that a progressive return to a work environment was suggested. This suggestion has raised many concerns which Mr. Mcmillen has openly expressed. As discussions of his progressive return to work became more specific, he has experienced increased difficulties following through with his endurance and flexibility exercises. There has also been an increase in the frequency of his pain behaviors and complaints. It was suggested by Mr. Eischen that there should be a conference between Mr. and Mrs. McMillen, McMILLEN V. ROYAL BUICK Page 10 Mr. Eischen, and myself so that the issues surrounding a progressive return to work be openly discussed. Mr. McMillen's return to work has been clouded by his feeling that there is something diagnostically or surgically that can be done to take away his back pain. Mr. McMillen has reported that he is unwilling to progress until these issues are resolved. Mr. Eischen said he wanted to discuss this case with you. (Ex. 22) F. M. Skultety, M.D., a neurosurgeon at the University of Nebraska Medical Center, said on October 7, 1985 that there was no indication for surgery. At the present moment this appears to be a musculoskeletal problem with chronic back pain. There is no indication for surgery. I think physical therapy is the only appropriate treatment and would authorize it for a reasonable period of time as long as the patient continues to improve. On the basis of the comments he made about not being able to return to work he may actually be better treated in the full pain unit program, but this was not discussed. (Ex. 23). On November 22, 1985, Raymond J. Breed, M.S., R.P.T., director of physical and occupational therapy at the University of Nebraska, recommended that claimant try part-time if not full-time work activity. Breed said: The structural evaluation demonstrates that the patient has gained good flexibility in all areas and the patient feels that he has made good progress, but feels that he is still not 100%. Mr. McMillen [sic] still has complaints of discomfort in his low back, especially when he has to stand in one place for any length of time. Mr. McMillen [sic] also describes some unusual symptoms associated with some physical activities, which I cannot explain. It is my opinion that the client appears physically prepared to resume at least part-time, if not full-time work activity. I think it would also be appropriate that Mr. McMillen [sic] continue to participate with the Pain Management Unit, as well as obtained Pain Management counseling. (Ex. 21) The rehabilitation treatment at the university hospital terminated because they felt claimant was ready to return to work and claimant did not. Claimant refused to work until he received complete pain relief. Siracusano, of the Pain Management Center, wrote the following report to Dr. Skultety of the neurosurgery department on January 10, 1986. Mr. McMillen had been making slow and steady McMILLEN V. ROYAL BUICK Page 11 improvement until October. At this time it seemed as if he could return to work. The concept of a work-hardening program was introduced to Mr. McMillen by both the physical therapist and Mr. Eischen. After that time Mr. McMillen's progress in physical functioning slowed significantly. Additionally, there were exercises that he failed to do. Communications with Mr. Eischen and Mr. McMillen increased some understanding that Mr. McMillen did not feel ready to return to work. There was an increase in Mr. McMillen's desire to confer with more doctors in order to find the cause of his low back pain. During the time the Pain Management Center was closed for the Christmas Holidays, Mr. McMillen had enlisted the advice of an attorney and had seen several more doctors. Some of the doctors he had consulted prescribed medications to help him sleep at night. The last physical therapy visit was on January 10, 1986. At this time there was an increase in pain behavior and pain talk. Mr. McMillen was much more convinced that a return to work was not right for him until he had complete pain relief. It appears that a physical therapy program designed to help Mr. McMillen return to work will be fruitless at this time. Mr. McMillen was seen for a total of 16 physical therapy treatments. A similar report will be sent to Mr. Ron Eischen. (Ex. 17) On January 9, 1985 claimant was examined by Lynell W. Klassen, M.D., chief of the section of rheumatology and immunology of the Department of Internal Medicine at the University of Nebraska, for chronic low back pain exacerbated by physical activity. Dr. Klassen said that claimant gave a history of episodic back pain since age 20. Dr. Klassen brought to light for the first time in a medical report that claimant complained of bowel and bladder problems; however, Dr. Klassen did not associate these with the injury. Dr. Klassen reported Two complaints spontaneously given to me, but not otherwise noted in his past record, involves bowel and bladder incontinence. He reports that over the past six months he has had increasing difficulty with episodes of loss of sphincter tone and urinary incontinence. The bowel incontinence can occur any time, night or day. The bladder incontinence usually occurs after he goes from a sitting to standing position. He reports having an uncontrolled bowel movement several times a week. (Ex. 18) Dr. Klassen concluded as follows "My impression is that Mr. McMillen has a primary musculoskeletal/mechanical etiology for his low back pain. I can find no evidence of an inflammatory spondylitis or sacroilitis." (Ex. 18). Dr. Klassen added that he had nothing specific to add to the therapeutic approaches that have been tried in the past (Ex. 18). McMILLEN V. ROYAL BUICK Page 12 On January 22, 1986 Dr. Morrison concluded that claimant had reached maximum medical improvement and that no further diagnostic testing was in order. He said that claimant could do light work or salesman type of work that would allow him to sit or get up at his leisure (Ex. 15). On February 6, 1986 Dr. Morrison said claimant's permanent partial impairment would be from 10-15 percent of the whole body because of the necessity of having a lumbar laminectomy with some persistent residual pain (Ex. 14). Dr. Morrison said claimant could do light work, lifting a maximum of 20 pounds occasionally and frequently lifting or carrying 10 pounds (Ex. 16). Even though Dr. Morrison recommended no further diagnostic testing he nevertheless, did order a magnetic resonance imaging scan (MRI) on March 18, 1986 which suggested a focal protrusion of disc material midline at the L-5, S-1 level. Robert H. McIntire, Jr., M.D., reported: These multiple images demonstrate the vertebral bodies to appear normal. Prominent degenerative disc disease is noted at the L5-Sl level. The remainder of the discs are thought to show reasonably normal signal intensity. There is thought to. be a focal protrusion of the disc material midline at the L5-Sl level. This appears to extend slightly to the right and to the left. No evidence of focal protrusion or herniation is noted at any other level. No intradural defects are McMILLEN V. ROYAL BUICK Page 13 identified. (Ex. 13) This report prompted Dr. Cochran on April 18, 1986 to ask Dr. Morrison to refer claimant to one more evaluator (Ex. 12). On April 28, 1986 claimant was referred to Daniel L. McKinney, M.D., a neurosurgeon (Ex. 11). Dr. McKinney saw claimant on May 21, 1986. Dr. McKinney reported that claimant was comfortable while reclining. He can only stand 15 minutes or sit 45 minutes without pain. He thought claimant could probably work as an automobile salesman because that would allow him to change positions frequently (Ex. 10). Claimant continued to have pain and Dr. McKinney hospitalized claimant for another myelogram on July 1, 1986 (Ex. 9). Dr. McKinney suspected a degenerative lumbar intervertebral disc (Ex. 8). The myelogram disclosed assymetry of the nerve roots and the caudal sac at L-5, S-1. He could not say with certainty that a degenerative disc was present, but it was a possibility (Ex. 7). On August 14, 1986 Dr. McKinney wrote to claimant's counsel that the slight irregularity could be residual scarring secondary to the two previous surgeries at that level. He felt that the chance of surgery helping claimant at this time was too slim to recommend it. He believed claimant had a 15 percent permanent partial disability to the body as whole. He added that he did not think that claimant was employable because he had developed chronic pain syndrome and will need rehabilitation in this area before he is employable (Ex. 6). On August 22, 1986 Dr. Cochran wrote to claimant's counsel that he last saw claimant on April 14, 1986. He had no explanation for claimant's continued pain. He did not believe claimant was a candidate for any further surgery (Ex. 5). On September 8, 1986 Dr. McKinney wrote to defendants' counsel that claimant's limitations were no prolonged periods of standing, sitting or frequent bending or lifting. He said he had no anatomic or physiologic explanation for claimant's loss of bowel or bladder control or difficulty with sexual function. In fact, claimant had not previously mentioned sexual dysfunction (Ex. 4). On September 16, 1986 Dr. McKinney made his last report. I would anticipate that Mr. Larry McMillen could probably perform the duties of a car salesman without causing damage to his lumbar spine. This type of duty, as I understand it, would allow him to change positions frequently and I believe he could probably do this provided he did not have to do any lifting of weights greater than 10 pounds or have to push automobiles on or off a showroom floor. His ability to work would of course be dependent upon Mr. McMillen's overall comfort and tolerance of his pain. Ex. 2) McMILLEN V. ROYAL BUICK Page 14 On March 18, 1987 Dr. Cochran, who never rated claimant for this injury, nevertheless, told defendants' counsel that he believed that claimant would have a ten percent permanent impairment of the body as a whole as a result of the earlier L-5, S-1 surgery which occurred on October 29, 1982 (Ex. 1). Rogers made a written report on September 9, 1986 to claimant's counsel that claimant had gotten much worse physically since he had last seen his doctors. Rogers believed that claimant was not employable due to his pain (Ex. 3). In his pretrial disposition on March 13, 1986, claimant testified that he had applied for social security disability benefits (Ex. 1, p. 20). Also, he gave a detailed description of his pain complaints at that time to his back, buttocks, legs, toes, throat, groin, lack of bowel control, urinary incontinence and sexual dysfunction. Claimant attributed all of these problems to the injury of March 19, 1984 and the surgery of June 26, 1984 (Ex. 1, pp. 21-28). Claimant also admitted that the combination of workers' compensation and income disability benefits was more than he was earning when he was working. He denied that he was financially better off because when he was working he had a car furnished and group insurance benefits and bonuses (Ex. 1, p. 42 & 43). Claimant could not say that any of his many doctors have ever told him not to work (Ex. 1, pp. 43 & 44). He conceded that he never asked any of the doctors to go back to work (Ex. 1, p. 52). Claimant testified that he was not under a doctors care at the time of the deposition on March 13, 1986 (Ex. 1, p. 45). Claimant testified in his deposition that he needs a TENS unit all of the time even though it has not been medically prescribed by a doctor. His whole day is in his house, where he can alternate standing, sitting and laying down. He is forced to lay down four or five times a day from five minutes to one-half hour until the pain goes away. His sleep habits at night are very irregular. He only sleeps two hours at any one time. Claimant testified that he could not sell cars because he has to lie down. Claimant could not think of any job that he is able to do (Ex. 1, pp. 52-58). This hearing was scheduled to last two and one-half hours according to the estimate of each attorney given to the prehearing deputy at the time of the prehearing conference. Claimant's attorney estimated it would take two hours to present his case. Defendants' attorney estimated that it would take one-half hour to present his case. The hearing actually consumed six hours due to the extensive examination and re-examination of the two expert witnesses. The examination of these two experts included direct, cross, re-direct, re-cross, further re-direct, and further re-cross, rebuttal and sur-rebuttal. Due to the extensive and intensive examination of these two expert witnesses, the hearing deputy ordered a transcript of the record and ordered defendants to pay the initial transcript costs until the decision assessed the costs of the case. The court reporter reported to the industrial commissioner McMILLEN V. ROYAL BUICK Page 15 that defendants' attorney refused to pay for the transcript because (1) the deputy did not have the authority to order a transcript and apportion the costs and (2) the court reporter's fee was excessive and exorbitant. Official notice is taken of the correspondence in the industrial commissioner's file from the court reporter to the industrial commissioner which includes copies of the correspondence of defendants counsel with the court reporter. Iowa Administrative Procedure Act 17A.14(4). Defendants have paid claimant $19,962.85 in temporary disability benefits and $18,031.00 in permanent disability benefits and $21,497.33 in medical benefits prior to hearing. Permanent disability benefits were continuing to claimant at the time of the hearing (Defendants I Ex. A) . APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of April 18, 1984 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man.O Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 25 McMILLEN V. ROYAL BUICK Page 16 Claimant is entitled to healing period benefits from the date he was first forced to leave work and see Dr. Cochran on March 23, 1984 [Ex. 38(l)] until Dr. Cochran returned claimant to work on April 2, 1984 [Ex. 38(2)]. Claimant is entitled to healing period benefits again for the period of time from June 20, 1984, when he was hospitalized by Dr. Cochran for surgery [Ex. 43(l)], until Dr. Morrison stated that claimant had reached maximum medical improvement on January 22, 1986 (Ex. 15) [Iowa Code section 85.34(l)]. As for industrial disability claimant was 48 years old at the time of the injury. He should have been at the peak of his earning career but he had suffered two reverses prior to this injury. His long term employer of 20 years went out of business and he had to find a new job with this employer. In this new job, with this employer, an internal dispute arose and claimant was asked to step down from service manager and become an automobile salesman. Claimant testified that selling cars did not turn out to be as lucrative as he thought it was going to be. Claimant's formal education is a high school education, but his many experiences and positions in automobile dealerships provided him with a very good practical, social and business education. Claimant was awarded a permanent functional impairment rating of ten to 15 percent for this injury by Dr. Morrison because of the necessity of a lumbar laminectomy with some persistent residual pain (Ex. 14). Dr. McKinney assessed a 15 percent permanent functional impairment rating as a result of this injury in 1984 (Ex. 6). Dr. Goldner awarded a 20 percent permanent functional impairment rating which included both laminectomies [Ex. 19(2)]. Dr. Cochran estimated that the permanent functional impairment from the first laminectomy, which occurred in 1982, would be ten percent (Ex. 1). Subtracting Dr. Cochran's ten percent for the first surgery from Dr. Goldner's 20 percent for both surgeries leaves a theoretical ten percent permanent functional impairment rating for this injury. Dr. Cochran did not express a permanent functional impairment rating for this injury. A ten to 15 percent permanent functional impairment rating for a lumbar laminectomy is not an unusually high impairment rating. The operative phrase in industrial disability is loss of earning capacity. Ver Steegh v. Rolscreen Co., IV Iowa Industrial Commissioner Report 377 (1984). Claimant contends that he cannot return to his old job of selling cars which was the job he was performing at the time of this injury. His testimony is corroborated by Rogers, his own vocational rehabilitation specialist. Claimant did not sustain the burden of proof by a preponderance of the evidence on this point. Dr. Morrison, Dr. McKinney and Eischen believed and stated that claimant could return to selling cars because there is no lifting and claimant can alternate standing and sitting. Eischen also stated that selling was a transferable skill and that claimant could also sell other products. In addition, Eischen mentioned certain minimum wage employments such as security guard and self-service gas station attendant that claimant could perform. McMILLEN V. ROYAL BUICK Page 17 None of the many doctors who examined claimant testified that claimant was unable to work or that he could not perform his old job of automobile salesman. None of the many physicians who examined claimant testified that claimant was permanently and totally disabled or even suggested it. The weight of the evidence is that claimant could return to his former employment of selling automobiles. With respect to whether claimant is permanently and totally disabled, claimant testified that he could have a job simply by making one telephone call. Yet, he never did make that one telephone call nor, did he make any other effort to obtain employment of any kind. Claimant's insistance on being pain free before attempting to work is not a privilege afforded to injured workers by the workers' compensation law. Claimant's insistance that he be able to work 18 hours per day, seven days a week is not a requirement of the workers' compensation law. Claimant's insistance that a surgical procedure existed that could make him pain free was not reasonable in light of the evidence presented at the hearing. Dr. Cochran, Dr. Waters and Dr. McKinney, all three competent surgeons, examined claimant, tested claimant, weighed and considered the possibility of additional surgery and each one of them recommended against it. Dr. Morrison, Dr. Goldner and Dr. Klassen all examined claimant and studied his history and stated McMILLEN V. ROYAL BUICK Page 18 that there was nothing further that they could offer in the way of treatment of any kind that would benefit claimant. Objective testing by way of x-rays, CT scans, myelograms and magnetic resonance imaging showed only some possible epideral scarring at L-5, S-1 which was probably due to his previous surgeries and did not justify any further or additional surgery. None of these doctors defined any explanation for claimant's continued symptoms of disabling pain other than this mild epideral scarring which was believed to be the result of his two prior surgeries at the level of L-5, S-1. Back complaints were not new to claimant. Dr. Klassen reported that claimant has had episodic back pain since age 20 (Ex. 18). Claimant admitted in his testimony that he had suffered periodic back problems from time to time. Dr. Goldner reported that he saw claimant in 1971 for left lumbar radiculopathy [Ex. 29(l)]. Claimant had very little or no motivation to return to work from a financial point of view. Claimant testified that when he was working he earned between $1,000.00 and $1,100.00 dollars per month. He also testified that the combination of his workers' compensation benefits and the benefits from his privately owned income disability policy total $1,300.00 to $1,350.00 per month. Claimant testified that both of these items were tax free income. As defense counsel pointed out claimant would actually lose money if he returned to work. In addition, claimant's wife earns $30,000.00 in full-time employment and she has been employed for 22 years. Claimant countered that he had the use of a car and certain employee benefits and bonuses when he worked. Be that as it may, there is a very strong disincentive to work if you can obtain $200.00 to $350.00 more per month tax free by not working, especially if your back hurts all of the time and you have gotten out of the habit of going to work everyday. Claimant's motivation toward returning to work is further revealed by his application for social security disability benefits. Particularly damaging to claimant's case was the testimony of Siracusano on November 25, 1985 that when a progressive return to work was planned, claimant demonstrated a decrease in tolerance for the endurance and flexibility exercises and an increase in the frequency of his pain behaviors and complaints, even though he had been climbing 12 flights of steps per day and had been walking three times a day (Ex. 22). Siracusano testified that when the concept of work hardening was introduced, claimant's progress slowed, he wanted to see more doctors, he retained an attorney and he did not want to return to work until he had complete pain relief (Ex. 17). Breed thought that claimant could return to work but indicated that claimant thought he should be 100 percent well before returning to work (Ex. 21). Therefore, it would appear that claimant could return to car sales or service writer in the automobile dealership business; he could perform other sales jobs; and that other less desirable minimum wage types of jobs could be performed within claimant's limitations if claimant would have tried to work; however, he McMILLEN V. ROYAL BUICK Page 19 declined to try any employment of any kind. Claimant has not sustained the burden of proof by a preponderance of the evidence that he is permanently and totally disabled. Diederich, 219 Iowa 587, 258 N.W. 899. Nor can it be said that claimant is permanently and totally disabled under the odd lot doctrine as defined by the Iowa Supreme Court in the case of Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Claimant has not demonstrated a bona fide effort to return to gainful employment in the area of his residence. Therefore, he has failed to make a prima face case of permanent total disability under the odd lot doctrine. Emshoff v. Petroleum Trans. Services, (Appeal Decision March 31, 1987). Claimant has no anatomical, organic or physical abnormalities that have been identified by any of the medical practitioners which make a prima face case for total disability. An employee making a claim for industrial disability will benefit by a showing of some attempt to find work. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northeastern States Portland Cement Co., Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Since claimant has made no showing of any effort to find any kind of employment, then there is no showing of what claimant can do within the boundaries of his disability and limitations of persistent pain. Schofield v Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Defendant's serious offer of vocational rehabilitation weighs in their behalf. Schelle v. HyGrade Food Products, Thirty-third Biennial Report of the Industrial Commissioner 121 (1977). Claimant's failure to cooperate with vocational rehabilitation is a factor to consider when determining the amount of his industrial disability. McKelvey v. Dubuque Packing Co., Thirty-third Biennial Report of the Industrial Commissioner 227 (1976); Rapp v. Eagle Mills, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 264 (1979); Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88, (1984). Claimant is not fully corroborated on the subject of pain. No one has suggested that claimant is not suffering pain but the degree of pain in not subject to independent verification. Pain that is not substantiated by clinical findings is no substitute for impairment. Waller v. Chamberlain Mfg, II Iowa Industrial Commissioner Report 419, 425 (1981). After extensive examination and testing, the doctors could only pinpoint that claimant's pain at the level of L-5, S-1 was possibly the result of epideral scarring from the prior two surgeries. None of the doctors had any further treatment modalities to offer claimant. Three doctors recommended against any further surgery. Claimant himself had not sought any further medical treatment for over a year. Claimant testified that he suffered breathing problems due to an injury to his throat at the time of the surgery on June 26, McMILLEN V. ROYAL BUICK Page 20 1984 for this injury. He also claimed to suffer bowel and bladder incontinence. These problems were not mentioned in the medical evidence until claimant saw Dr. Klassen on January 9, 1986, more than a year and one-half after the accident. Claimant has also alleged that he has sexual dysfunction in the nature of impotency due to pain from this injury. There is absolutely no medical evidence or even a suggestion that the bowel, bladder or sexual problems were caused by, or related to, this injury in any way for any reason. Therefore, based upon all of the foregoing factors and all of the factors that go into a determination of industrial disability, it is decided that claimant has sustained a 35 percent industrial disability to the body as a whole. As far as a deputy's power or authority to order a transcript Iowa Code section 86.19 provides as follows. The industrial commissioner, or a deputy commissioner, may appoint or may direct a party to furnish at the party's initial expense a certified shorthand reporter to be present and report, or to furnish mechanical means to record, and if necessary transcribe proceedings of any contested case under this chapter, chapters 85 and 85A and fix the reasonable amount of compensation for such service. The charges shall be taxed as costs and the party initially paying the expense for the presence or transcription shall be reimbursed. The reporter shall faithfully and accurately report the proceedings. The refusal of defendants' counsel to pay for the transcript as he was ordered to do at the hearing was unreasonable and without legal justification. There is no evidence that the charges of the court reporter are excessive or exorbitant. Furthermore, this particular court reporter was selected by defendants' counsel himself as a matter of his own free choice of court reporter. Moreover, the same court reporter reported and transcribed claimant's deposition taken on March 13, 1986 and there is no evidence of any dispute about excessive or exorbitant charges for the deposition (Claimant's ex. 1). FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant was off work due this injury from March 23, 1984 to April 2, 1984 and again from June 20, 1984 to January 22, 1986. That claimant's permanent functional impairment has been rated at approximately ten to 15 percent of the body as a whole as a result of this injury That claimant was 48 years old at the time of the injury and had a high school education. That no doctor testified that claimant should not return to McMILLEN V. ROYAL BUICK Page 21 his old job as a automobile salesman. That Dr. Morrison and Dr. McKinney testified that claimant could return to his old job as an automobile salesman. That vocational rehabilitation specialist Eischen testified that claimant could return to his old job as an automobile salesman. That two registered physical therapists said that claimant could return to work to either full or part-time employment but that claimant declined to try to return to work on any terms. That claimant sustained a 35 percent industrial disability to the body as a whole. CONCLUSIONS OF LAW THEREFORE, based upon the evidence presented and the foregoing principles of law the following conclusions of law are made. That claimant is entitled to healing period benefits for the two periods of time he was off work defined in the findings of fact [Iowa Code section 85.34(1)] . That claimant is entitled to 175 weeks of permanent partial disability benefits as industrial disability to the body as a whole. [Iowa Code section 85.34(2)u]. That defendants are legally obligated to provide the industrial commissioner with a transcript and to pay the reporter's fees for the transcript as ordered at the hearing by the deputy industrial commissioner (Iowa Code section 86.19). ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one point five seven one (1.571) weeks of healing period benefits for the period from March 23, 1984 to April 2, 1984 and another eighty-three (83) weeks of healing period benefits for the period from June 20, 1984 to January 22, 1986, a total of eighty-four point five seven one (84.571) weeks of healing period benefits at the rate of two hundred thirty-four and 75/100 dollars ($234.75) per week in the total amount of nineteen thousand eight hundred fifty three and 04/100 dollars ($19,853.04). That defendants pay to claimant one hundred seventy-five (175) weeks of permanent partial benefits at the rate of two hundred thirty-four and 75/100 dollars ($234.75) per week in the total amount of forty-one thousand eighty-one and 25/100 dollars ($41,081.25) commencing on January 22, 1986. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. McMILLEN V. ROYAL BUICK Page 22 That defendants are entitled to a credit for all benefits paid prior to hearing. That defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 and in particular, pay the court reporter for the transcript of the hearing as ordered by the deputy at the time of the hearing. That defendants file activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 5th day of April, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon Gallner Attorney at Law 803 Third Avenue Council Bluffs, Iowa 51501 McMILLEN V. ROYAL BUICK Page 23 Mr. Ronald E. Frank Mr. Robert A. Wichser Attorneys at Law 200 Century Professional Plaza 7000 Spring Street Omaha, Nebraska 68106 1402.40; 1802; 1803; 4100; 2907 Filed April 5, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY McMILLEN, Claimant, vs File No. 761229 ROYAL BUICK, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNIVERSAL UNDERWRITERS INS. CO. Insurance Carrier, Defendants. 1402.40; 1802; 1803; 4100 Claimant strained his degenerative back resulting in a lumbar laminectomy. Physicians awarded ten to 15 percent permanent functional impairment. Two doctors and one vocational rehabilitation specialist said claimant could return to his old job of selling cars. Claimant refused to cooperate with work hardening at the pain center and refused to try to do any kind of work until he was entirely pain free. Claimant was receiving $200 to $350 more from workers' compensation and income disability benefits than he was earning when he was injured. Claimant's condition progressively deteriorated until he was barely functional at all. One and one-half years after the injury he asserted that the injury was the cause of bowel and bladder incontinence and also sexual dysfunction but there was absolutely no medical evidence to support his claim. Claimant awarded 35 percent industrial disability. Claimant was not permanent total or odd-lot permanent total. 2907 The hearing was scheduled to last two and one-half hours but lasted six hours due to the extensive and intensive interrogation and examination of the opposing vocational rehabilitation expert witnesses. Deputy ordered a transcript and ordered defendants' attorney to initially pay for it. Defendants' attorney refused to pay. His refusal was found to be unreasonable and without legal justification in view of deputy's authority contained in Iowa Code section 86.19. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY McMILLAN, Claimant, VS. File No. 761229 ROYAL BUICK, 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 UNIVERSAL UNDERWRITERS GROUP, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening upon claimant's petition filed May 11, 1988. Claimant suffered an injury to his back on March 19, 1984, while pushing a motor vehicle in the course of his employment. After he filed a petition seeking arbitration, a hearing was held on July 14, 1987, and a decision filed on April 5, 1988. The arbitration decision found that claimant was not an odd-lot employee, although an extruded disc fragment at L5,Sl was removed on June 26, 1984, and that he had sustained a permanent partial disability of 35 percent for industrial purposes. Claimant was also awarded certain healing period benefits. Hearing on the petition for review-reopening was thereafter held in Council Bluffs, Iowa, on June 26, 1989. The additional record consisted of claimant's testimony and joint exhibits 3 through 55, inclusive (objections were sustained as to joint exhibits 1 and 2). ISSUES The sole issues presented for determination are whether claimant has experienced a change of condition since the prior arbitration hearing and, if so, the extent of his current industrial disability, including whether claimant is totally disabled under the odd-lot theory or otherwise. McMILLAN v. ROYAL BUICK Page 2 FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all of the evidence, finds: The arbitration decision noted that claimant was 48 years old at the time of injury and had a high school education. Claimant had numerous experiences and positions in automobile dealerships, primarily in parts and service departments. However, he was working in sales at the time of his injury after an internal dispute arose and he was asked to step down from his position as service manager. The arbitration decision points out that claimant was rated as having sustained a 10-15 percent functional impairment by several physicians (claimant also had a previous lumbar laminectomy, leading John C. Goldner, M.D., to assess a 20 percent functional impairment including both surgical procedures). It was further noted that claimant contended he could not return to his old job of selling cars, but did not sustain his burden of proof by a preponderance of evidence on that point, as Michael J. Morrison, M.D., Daniel L. McKinney, M.D., and a vocational rehabilitation expert employed by defendants stated that claimant could return to that task because it did not involve lifting and he could alternate standing and sitting. Claimant's vocational rehabilitation specialist believed otherwise. The decision noted that none of the many doctors who examined claimant believed he was unable to work at his old job of automobile salesperson or that he was totally disabled. It was specifically found that claimant could return to his former employment as a salesperson. It was further noted that claimant could not avail himself of the odd-lot theory of recovery because he had not sought work. The arbitration deputy believed that claimant was unreasonable in insisting upon being pain-free before attempting to return to work and that he had little or no motivation to return to work because a combination of workers, compensation and private disability benefits totalled more per month than he had been earning as a salesperson. The arbitration decision also strongly criticized claimant's lack of motivation and pointed out that a registered physical therapist testified to claimant demonstrating a decrease in tolerance for endurance and flexibility exercises and an increase in the frequency of pain behaviors and complaints when the therapist began planning a progressive return to work through a work hardening program. Claimant was found to not be fully McMILLAN v. ROYAL BUICK Page 3 corroborated as to the extent of his pain complaints, which were not subject to independent verification by clinical findings. At hearing, claimant appeared to this observer to be shaky, tired-looking, and exhibited a flat affect. He was frequently unresponsive to questioning. Claimant demonstrated his walking ability at hearing. He walks in a halting manner, holds his left hip, and keeps his head down. He was wearing a TENS unit to mask pain and indicated that he now wears the unit almost always, whereas he wore it only occasionally at the time of the arbitration hearing. Claimant considers his condition to be worse than at the time of the arbitration hearing. His back is more painful and he finds his activities severely limited. For example, he can walk only perhaps one-half block, and then not on uneven ground. He can sleep only perhaps two hours per night. He suffers increased numbness of the legs and now suffers from depression and memory lapses (which may in part be attributable to prescribed mood altering medications). Claimant described his pain as "terrible" on a good day, such as the date of hearing, but "unbearable" on a bad day. Claimant described his average day as made up of such minimal activities as wishing for the onset of night, walking on his driveway, alternately standing, sitting and lying in the sun, and occasionally watching baseball games on television (he becomes emotionally overwhelmed when watching more dramatic television fare). At the time of the arbitration hearing, claimant was able to do some laundry and watch more television. Claimant described some minimal efforts to seek employment since the arbitration hearing. He has contacted several automobile dealerships, even though he believes.he is unable to return to automobile selling because of his inability to work on a daily basis, get in and out of automobiles, or to present himself in an appropriately upbeat frame of mind for a salesperson. Claimant also worked for approximately three hours answering the telephones for an animal laboratory known as Amatec, but found himself unable to perform the work because of numbness afflicting his leg, so he left. However, on cross-examination, claimant admitted that-his attempts to obtain work occurred within the two or three months immediately prior to the hearing (which was scheduled five months before it was held). Claimant noted that defendants have authorized only Dr. McKinney as a treating physician and that Dr. McKinney has advised him that he is unable to work. Although Dr. McKinney has suggested to him that he seek psychological care, claimant apparently did not do so until McMILLAN v. ROYAL BUICK Page 4 shortly before hearing (the report of a psychologist, exhibit 2, was excluded from evidence as untimely). However, claimant agreed on cross-examination that he had made no specific requests for a different treating physician since being turned down in 1986 and agreed that Dr. McKinney did not make any specific referral for psychological or psychiatric evaluation. Claimant has seen Dr. McKinney on only about two occasions since the earlier hearing and has not had medical treatment otherwise. During the course of hearing, claimant frequently stood and required brief recesses for both physical and emotional reasons. He agreed on cross-examination that this was also true at the arbitration hearing, and that he had left that hearing early because of what his attorney described as intractable and excruciating pain. Nonetheless, the undersigned finds claimant to have been a credible witness and does not believe that he intentionally magnified his symptoms at hearing. Daniel McKinney, M.D., a board-certified neurosurgeon, testified by deposition on June 7, 1989. Since the previous hearing, Dr. McKinney saw claimant on May 6, 1988 and March 27, 1989. Dr. McKinney wrote claimant's counsel on November 29, 1988 to note that examination showed no change over claimant's previous status. He did not believe claimant's condition had actually deteriorated and continued to rate his impairment at 15 percent of the body as a whole. However, by the time of his deposition, Dr. McKinney's opinion had changed. He now believes that claimant's persistent pain and depression (which he specifically found to be caused by pain and symptoms secondary to the work injury) now prevent claimant from being gainfully employed for the foreseeable future. Dr. McKinney's clinical findings were unchanged with respect to claimant's physical impairment. However, he increased his impairment rating from 15 percent to 25 percent based on the persistence of symptoms and increased .depression and believed there had been a material and substantial change in claimant's condition since 1986 in that claimant had failed to improve with respect to his chronic pain as the majority of similarly situated individuals do. Whereas Dr. McKinney believed that claimant could probably perform the duties of a car salesman in 1986, he no longer believed that possible, although such work would not actually cause structural damage to the spine. McMILLAN v. ROYAL BUICK Page 5 Dr. McKinney felt that the majority of claimant's depressive symptoms relate to chronic complaints of back pain and leg pain, but agreed on cross-examination that disappointment emanating from the previous arbitration decision could be a factor, although not quantifiable. He did refer to claimant's psychological difficulties as "legitimate." CONCLUSIONS OF LAW Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). The evidence in this case establishes that claimant has experienced a change in condition since the earlier award within the meaning of the cited authorities. At the time of the arbitration hearing, no physician had opined that claimant was unable to return to work selling automobiles (although this job, itself, was fairly recent; most of claimant's experience was in parts and service, which one would expect to be more physically demanding). Now, the authorized and treating physician has opined that claimant is unable to return to that work. Claimant's impairment rating has been increased to 25 percent by the treating physician. Claimant credibly reports more severe and debilitating pain. Claimant has developed depressive symptomatology which is causally related to the work injury McMILLAN v. ROYAL BUICK Page 6 (although Dr. McKinney concedes that he has limited expertise in this field, he is a licensed and practicing board-certified physician and his opinion stands unrefuted). Psychological impairments caused by a work injury have long been deemed compensable. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Although claimant's motivation leaves something to be desired, it is understandable that a state of high motivation is difficult to maintain in the face of intractable lumbar pain, especially when complicated by long-term depression and major losses in the general ability to enjoy and participate in life. Even though it is a fair inference that most of claimant's job seeking activities were precipitated by the upcoming hearing date, he has been unsuccessful in several attempts to find work in his field of expertise. Claimant attempted to work in a position so sedentary as that of telemarketer, but failed to last even half a day because numbness in his legs developed. In any event, defendants have made no effort to assist claimant's rehabilitation since the arbitration hearing. It is therefore held that claimant has established the requisite change in condition to support a modified award in review-reopening. Accordingly, it is appropriate to consider his current industrial disability. In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935), the Iowa court found that claimant suffered a compression fracture and was 59 years of age, had worked as a streetcar motorman for 30 years, and had little education. The court noted that to suppose such a person could become a stenographer, lawyer, clerk or bookkeeper was to suppose the impossible, for a man of his age with no education was not capable of securing or filling any such position. From the standpoint of his ability to go back to work to earn a living for himself and his family, Diederich's disability was a total disability. Claimant in this case has a high school diploma. Claimant was 48 years old at the time of injury, 5 years before the hearing in this case. Essentially all his work experience for 33 years was in the automotive industry in parts and service departments and, recently, as a salesperson. Because his intractable pain has not abated, the treating physician, a board-certified neurosurgeon, has opined that claimant is now unable to return to that work. Even though claimant's recently developed skills as a salesperson may be transferrable, his inability to work a full day or to remain in one posture for any length of time renders him unsuited for other such work. Claimant's McMILLAN v. ROYAL BUICK Page 7 depression, also caused by the work injury, further disables him from competitive employment. Claimant has now been off work since January, 1986, and given his history of two back surgeries with continued disability, he surely is of greatly lessened attractiveness as a potential employee, even if he were able to return to work. Considering all these factors in particular and the record in general, it is held that claimant has established that he is now permanently and totally disabled without need of recourse to the odd-lot theory of recovery adopted in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Claimant was awarded permanent partial disability benefits in the arbitration decision. The most appropriate date for conversion to permanent total disability is March 27, 1989, when claimant was last seen by Dr. McKinney, whose opinion has been given great weight in this decision. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant permanent total disability benefits at the stipulated rate from March 27, 1989, during such time as claimant remains totally disabled. Defendants shall be entitled to credit for all weekly benefit payments made pursuant to the arbitration decision herein. The costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 16th day of May, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER McMILLAN v. ROYAL BUICK Page 8 Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. Ronald E. Frank Mr. Robert A. Wichser Attorneys at Law 200 Century Professional Plaza 7000 Spring Street Omaha, Nebraska 68106 1402.40, 1804 Filed May 16, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY McMILIAN, Claimant, VS. File No. 761229 ROYAL BUICK, 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 UNIVERSAL UNDERWRITERS GROUP, Insurance Carrier, Defendants. 1402.40, 1804 In review-reopening proceeding, claimant was found to have experienced a change in condition in that his back injury had failed to improve to the extent expected by the treating surgeon. He was awarded permanent total disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUSAN M. SMITH, Claimant, vs. File No. 761319 ARMSTRONG RUBBER COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Susan M. Smith against Armstrong Tire & Rubber Company, employer, and The Travelers Insurance Company, insurance carrier. The case was heard and fully submitted on June 23, 1988 at Des Moines, Iowa. The record in the proceeding consists of testimony from Susan M. Smith and claimant's exhibits 1 and 2. Official Notice was taken of the AMA Guides to the Evaluation of Permanent Impairment. ISSUES The issues presented by the parties at the time of hearing are determination of claimant's entitlement to compensation for any permanent partial disability and determination of claimant's entitlement to payment for expenses of an independent medical examination under the provisions of Iowa Code section 85.39. It was stipulated that the claimant had sustained an injury which arose out of and in the course of her employment and that she had been paid all compensation for temporary total disability or healing period which was due as a result of the injury. All other pertinent matters in the case were established by stipulation of the parties. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. only the evidence most pertinent to this decision is discussed, but ail of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Susan M. Smith is a 37-year-old, married lady who commenced employment with Armstrong on November 17, 1980. She left that employment on December 31, 1987. By virtue of a retraining program, she has recently started a new job working for major Appliance Parts. Smith testified that she had enjoyed excellent health, in general, and in particular with regard to her hands and arms before commencing work at Armstrong. Smith testified that, at Armstrong, she worked primarily as a first-stage tire builder, a position which requires extensive use of the hands and arms. Claimant testified that she developed pain and numbness in her hands and arms and sought medical care. She eventually had surgery performed by Scott B. Neff, D.O., in the nature of carpal tunnel releases on both the right and left hands. Following a relatively normal period of recovery, she returned to employment at Armstrong, performing the same work as she had performed prior to obtaining treatment for the carpal tunnel condition. Claimant testified that, when she returned to work, her wrist was quite tender and stiff and that she continued to have difficulty with dropping things. She related that, at times, she had her hands and wrists wrapped in order to alleviate her symptoms. Claimant testified that, currently, she experiences numbness and tingling in her little finger and ring finger and that she experiences sharp pains in her elbows. She related that it affects both extremities, but is primarily in the right. Claimant also stated that her grip is weak and that she has difficulty manipulating small objects. She related having problems performing activities such as using scissors and opening jars. She stated that she does not have any limitation of the range of motion of her hands. Scott B. Neff, D.O., was the orthopaedic surgeon who treated claimant's carpal tunnel syndrome. In a report dated January 22, 1986, issued to claimant's attorney, Dr. Neff stated: Based on what we have been able to prove at this time, I do not think that she has any documentable [sic] impairment of any significant nature. (Exhibit 1, page 26). Claimant was also thereafter evaluated by Jerome G. Bashara, M.D. Dr. Bashara found that claimant lacked five degrees of full dorsiflexion of both wrists and approximately ten degrees of palmar flexion of both wrists. His neurological examination was normal. Dr. Bashara assigned claimant a three-percent permanent impairment rating of each upper extremity due to the carpal tunnel syndrome (exhibit 1, page 32). Claimant was most recently evaluated by Joseph M. Doro, D.O., a physician with Neurological Associates of Des Moines, P.C. Dr. Doro noted patchy decrease in pinprick distally in both hands which involved the median, ulnar and radial distributions. He found no other abnormalities (exhibit 1, page 34). Dr. Doro indicated that claimant has recovered from her carpal tunnel syndrome and has no any residual permanent partial disability from it (exhibit 1, page 35). In view of Dr. DoroOs tests and claimant's complaints, the injury likely involves the ulnar nerve. Claimant incurred an expense in the amount of $175.00 for the evaluation by Dr. Bashara (exhibit 1, page 29; exhibit 2). The charge from Dr. Bashara in the amount of $375.00 shown on exhibit 2 is unexplained in the record. APPLICABLE LAW AND ANALYSIS This case involved no specific incident of acute trauma. Carpal tunnel syndrome in this case, and frequently in other cases, is a cumulative trauma type of injury. Accordingly, the date of injury in this case is determined to be March 27, 1984, the date of disablement. McKeever Custom Cabinets v. Smith, 379 N.W.2d 366 (Iowa 1985). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Where an injury is limited to a scheduled member, the loss is measured functionally, not industrially. Graves v. Eagle Iron Works, 331 N.W.2d ll6 (Iowa 1983). Where two members are affected by the same injury, any permanent partial disability is compensated under the provisions of Iowa Code section 85.34(2)(s). Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983). "Loss of means loss of use. Moses v. National Union Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921). The burden of proof of the existence and extent of permanent partial disability rests upon the claimant. Dr. Doro clearly and concisely states that, in his opinion, claimant has no permanent partial disability. Dr. Neff's statement speaks of no documentable impairment of any significant nature. Dr. Bashara assigns a three-percent impairment to each upper extremity. Claimant complains of residual weakness, numbness and tingling. Claimant's appearance and demeanor were observed as she testified and she is found to be a fully credible witness with regard to the nature and existence of her residual complaints. A review of the exhibits in the record shows that she has voiced those same complaints fairly consistently since the surgery was performed. Dr. Bashara seems to base his impairment rating upon loss of range of motion, although neither of the other two physicians has confirmed the existence of any loss of range of motion. While claimant herself denied having any limitation of motion, it cannot be ascertained whether or not she would be able to distinguish a small loss from her own casual observation. Claimant's complaints are corroborated by the findings of sensory abnormalities as were made by Dr. Doro in his physical examination (exhibit 1, page 34). Regardless Of whatever ratings are in the record, the claimant does have some loss of her ability to use her hands due to numbness, tingling and some loss of grip strength when her current condition is compared to her condition as it existed prior to the time she commenced employment with Armstrong Rubber Company. In the instant case, none of the physicians have indicated what guidelines or standards were used in reaching their impairment ratings. Division of Industrial Services Rule 343-2.4 makes the AMA guides a permissible standard, but it does not make them the exclusive standard. Lauhoif Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Chapter 1 of the AMA guides provides ratings which are based primarily upon range of motion while chapter 2 provides impairment ratings based upon neurological abnormalities. A review of chapter 2, in particular tables 4 and 5 found at pages 73 and 74, if applied to claimant's case, supports a finding of minimal impairment. Accordingly, it is therefore determined that claimant has a one-percent permanent partial disability of the left hand and a two-percent permanent partial disability of the right hand. This finding is based upon claimant's credibility as determined at hearing and as corroborated by the findings of sensory abnormalities by Dr. Doro and the consistency with which she has related her complaints. This finding is not considered to be inconsistent with the opinion expressed by Dr. Neff, since a one- or two-percent impairment is not particularly significant. When the impairments are converted into a disability or impairment of the body as a whole, a one-percent impairment of the hand is equal to a one-percent impairment of the upper extremity and a two-percent impairment of the hand is equal to a two-percent impairment of the upper extremity (AMA guides, table 9, page 10). A one-percent or two-percent impairment of the upper extremity is equivalent to a one-percent impairment of the whole person (table 20, page 23). When applied to the combined values chart, the resuit is a two-percent impairment of the whole person. Under section 85.34(2)(s), this entitles claimant to receive ten weeks of compensation for permanent partial disability. Section 85.27 of The Code gives an employer the right to select the providers of medical care for an injured employee. When the claimant in this case reported her injuries to the employer's personnel, she was directed to go to her own physician. Such directive was, in essence, the employer's choice. It had the impact of making claimant the employerOs representative or agent for purposes of selecting authorized care and treatment. Defendants voluntarily paid the expenses with Dr. Neff, apparently without any objection. Their action in the way this case was handled had the effect of making Dr. Neff a physician that was retained by the defendants. Coble v. Metro Media, Inc., 34th Biennial Report, Iowa Industrial Commissioner, 71 (1979); Munden v. Iowa Steel & Wire, 33rd Biennial Report, Iowa Industrial Commissioner, 99 (1977). Dr. Neff expressed an opinion of no documentable impairment of any significant nature. Such is sufficient to constitute a rating for purposes of section 85.39. Kilness v. Ebasco Serv., Inc., 34th Biennial Report, Iowa Industrial Commissioner, 161 (1979); Coble v. Metro Media, Inc., 34th Biennial Report, Iowa Industrial Commissioner, 70 (1979) Accordingly, claimant in this case is entitled to recover the reasonable expense of an evaluation by a physician of her choice; she exercised that right by seeking an evaluation from Dr. Bashara. The charge for that evaluation, in the amount of $175.00, is found to be reasonable. The cost of the report of the results of the evaluation is impliedly a part of the cost of the evaluation and is likewise limited by the standard of reasonableness. Defendants are therefore responsible for payment to claimant for the expenses of an evaluation under the provisions of section 85.39 of The Code in the amount of $175.00. FINDINGS OF FACT 1. Susan M. Smith has a two-percent permanent partial disability of her right hand and a one-percent permanent partial disability of her left hand as a result of injuries she sustained in tier employment with the Armstrong Rubber Company on or about March 27, 1984. 2. The permanent impairment was proximately caused by the injury of March 27, 1984. 3. The employer directed claimant to seek treatment from physicians of her own choice. 4. The employer voluntarily paid the physicians claimant chose without objection. 5. The charges from Dr. Bashara (Iowa Orthopaedics) in the amount of $175.00 are reasonable. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant has a two-percent permanent partial disability to the whole person which, under the provisions of Iowa Code section 85.34(2)(s) entitles her to receive ten weeks of compensation for permanent partial disability. 3. Scott B. Neff, D.O., was a physician retained by the employer by virtue of the employerOs directive to claimant to choose her own physician and the employer's action in voluntarily paying Dr. Neff for his services. 4. Claimant is entitled to recover $175.00 as and for the cost of an independent medical examination under the provisions of Iowa Code section 85.39. ORDER IT IS THEREFORE ORDERED that defendants pay claimant ten (10) weeks of compensation for permanent partial disability at the stipulated rate of three hundred twenty-two and 14/100 dollars ($322.14) per week payable commencing June 15, 1984. The entire amount is past due and payable in a lump sum, together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay claimant one hundred seventy-five and 00/100 dollars ($175.00) for the cost of an independent medical examination pursuant to Iowa Code section 85.39. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3 Signed and filed this 28th day of June, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Avenue Des Moines, Iowa 50309 Mr. David M. Swinton Attorney at Law 100 Court Avenue Suite 600 Des Moines, Iowa 50309 1402.40, 1803, 2502 Filed June 28, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUSAN M. SMITH, Claimant, vs. File No. 761319 ARMSTRONG RUBBER COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.40, 1803, 2502 Claimant's injury was bilateral carpal tunnel syndrome. Physicians had rated "no significant impairment," three percent of each upper extremity and no permanent partial disability. Claimant complained of residual numbness, tingling, loss of grip strength and loss of fine manual dexterity. Claimant's complaints were corroborated by the histories she provided to the various physicians. A neurological examination showed some sensory abnormalities in claimantOs hands. ClaimantOs complaints were found to be true and correct. She was found to have a one-percent permanent partial disability of her left hand and a two-percent permanent partial disability of her right hand. When converted and combined, she was found to have a two-percent permanent partial disability of the body as a whole, which entitled her to ten weeks of compensation under section 85.34(2)(s). When claimant reported her injuries, she was directed to go to her own physician. Such was held to make claimant the employer's authorized representative for purposes of selecting medical care. The employer voluntarily and without objection paid the physician's fees as charged. Such was held to make the treating physician a physician retained by the employer for purposes of section 85.39 examinations. Claimant was held entitled to an independent evaluation under section 85.39. 1402.40, 1803 Filed September 26, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY BEBO, File No. 761330 Claimant, vs. A R B I T R A T I 0 N JOHN MORRELL & CO., D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.40, 1803 Claimant awarded ten percent industrial disability based on permanent functional impairment ratings of 5 and 15 percent respectively. Claimant suffered a possible or equivocal herniated nucleus pulposus and was precluded from doing heavy, strenuous work in the future. However, claimant did return to his old light duty job after the injury making boxes and performed it for two years until the plant closed and he chose to resign rather than transfer. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DON SCHUBERT, Claimant, File No. 761337 vs. A R B I T R A T I O N JOHN MORRELL & COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding brought by Don Schubert, claimant, against John Morrell & Company, self-insured, employer. The case came upon a petition for arbitration for benefits as a result of an injury which occurred on April 2, 1984. The case was heard by the undersigned on August 18, 1988. The case was fully submitted at the completion of the hearing. The record consists of the testimony of claimant. The record also consists of claimant's exhibits 1 and 2, and defendant's exhibits A-1 and A-2. FACTS PRESENTED Claimant sustained work related injuries to his left thumb and hand on April 2, 1984 when he smashed his left thumb between the controls of a guardrail and a jack. Claimant was referred to the hand clinic at Mayo by his local physician, Dr. Neuro, in Estherville, Iowa. Two surgeries were performed at Mayo. After the surgeries were performed, claimant was given a functional impairment rating of the hand of 17.5 percent by W. P. Cooney, M.D., of the Mayo Clinic. Claimant was released for work by Dr. Cooney. Claimant did not return to the work force. He retired in lieu of employment. After the functional impairment rating of 17.5 percent, claimant was seen by C. B. Carignan, Jr., M.D., for purposes of evaluation only. ISSUE Whether claimant has sustained a permanent partial disability to his left hand, and if so, the nature and extent of that disability. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). SCHUBERT V. JOHN MORRELL & COMPANY PAGE 2 Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 2, 1984 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 2, 1984 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). ANALYSIS The sole question which is addressed here is the nature and extent of any scheduled member disability to the left hand. W. P. Cooney, M.D., of the Mayo Clinic, treated claimant and performed surgery on claimant's left hand. Approximately nine months after claimant's surgery, Dr. Cooney evaluated claimant's impairment. In his letter of March 18, 1986, he writes: Mr. Schubert is status post fusion of his left thumb MCP joint in June of 1985. He has done very well and reports only minimal tenderness in the thumb with prolonged use of the hand. His range of motion has increased somewhat to 30 degrees of flexion. His extension is +20 in the IP joint. His web space measurements are 12.5 on the left and 15 on the right. Palmar abduction is 35 degrees and planar abduction is 30 degrees and his grip strength is increased to 30 kg SCHUBERT V. JOHN MORRELL & COMPANY PAGE 3 on the left from 16 kg on his last visit. His grip strength on the right is 45 kg .... ...I recognize the problems of loss of grasp of small and large objects because of the fusion of the thumb joint. Based on our permanent impairment tables there is a 35 percent permanent impairment of the thumb related to fusion of that joint. The thumb represents 50 percent of the hand, therefore, the total permanent impairment of the hand is 17.5 percent .... On July 31, 1987, Dr. Cooney reevaluated claimant. In Dr. Cooney's letter of September 10, 1987, he writes: ... He was seen in June of 1984 and had advancement of the radial collateral ligament stabilized with a K-wire. Went on to develop continued symptoms of pain and disability and in June of 1985 an arthrodesis of left thumb MCP joint using a tension band wire technique. Results of that surgery have been a solid fusion of the thumb. There has been some loss of motion, however, at the IP joint which has a range of motion of 30 degrees hyperextension and 25 degrees of flexion for a total range of motion of 55 degrees. There is relatively good motion at the thumb CMC joint. Pinch strength measures 2 kg tip pinch on the elft [sic], 3.5 to 4 on the right, while key pinch measures 4 kg on the left versus 8.5 on the right. ... My impression of the patient's permanent impairment has not changed since March of 1986 at which time a disability permanent impairment of 35 percent of the thumb related to fusion of that joint was determined. Claimant was dissatisfied with the impairment rating lie received from Dr. Cooney. As a result, claimant was seen by C. B. Carignan, Jr., M.D., for purposes of examination and evaluation. Dr. Carignan, in a letter to claimant's attorney dated June 17, 1987, evaluates claimant as follows: The Metacarpo-Phalangeal [sic] joint of the left thumb is ankylosed at 35 degrees of flexion, equivalent to 57% impairment of the thumb. The Carpo-metacarpal [sic] shows 10 degrees loss of extension equivalent to 5% functional impairment of the thumb and also 10 degrees loss of flexion equivalent to 5% functional impairment of the thumb. In addition there is an estimated 20% loss of strength in the left thumb equivalent to an additional 5% impairment of the thumb. This amounts to a total of 72% impairment of the thumb which is equivalent to a 29% impairment of the hand, which is equivalent to a 26% impairment of the left upper extremity, which is equivalent to 16% functional impairment of the whole person due, with reasonable medical certainty, to residuals from the injury Of April 2, 1984 sustained at John Morrell, in Estherville. Apparently the discrepancies between the two impairment SCHUBERT V. JOHN MORRELL & COMPANY PAGE 4 ratings lie in the fact that Dr. Cooney measured the range of motion of the interphalangeal joint, and the metacarpophalangeal joint. Dr. Cooney did not measure the range of motion of the third joint, the carpometacarpal joint. All he said was, "relatively good motion of the thumb CMC joint." Dr. Carignan, on the other hand measured all three joints and Dr. Carignan also assessed a five percent loss of impairment because of the 20 percent loss of strength. Dr. Cooney did not measure the third joint. He did not assess an additional five percent impairment loss for a 20 percent loss of strength. Dr. Carignan did find the 20 percent loss of strength. Claimant's testimony corroborates the loss of strength finding. He stated he cannot grip a screwdriver with his thumb. He also testified fie is unable to bend his left thumb around his fingers. Finally, claimant revealed, he is unable to use his thumb when hammering, sawing, operating a screwdriver, and he has limited use of the thumb when shoveling. According to the Guides to the Evaluation of Permanent Impairment of the American Medical Association at page 5, the proper method for calculating the impairment of the thumb is as follows: 1. Calculate separately and record impairment of thumb contributed by each joint. 2. Combine impairment values, using combined values chart, to ascertain impairment of thumb contributed by all joints. 3. Consult Table 6 (Thumb) to ascertain impairment of hand contributed by thumb. Using the AMA Guides as the method for calculating any impairment, it appears the following values for restricted motion of each joint are: interphalangeal joint 5% metacarpophalangeal joint 57% carpometacarpal joint 5% sub Total 67% loss of strength 5% Total 72% Table 6 of the AMA Guides determines the impairment of the hand as contributed by the thumb. According to Table 6, 72% impairment of the thumb converts to 29% impairment of the hand. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. On April 2, 1984, claimant was injured while working for defendant. CONCLUSION A. On April 2, 1984, claimant received an injury arising out of and in the course of his employment with defendant. SCHUBERT V. JOHN MORRELL & COMPANY PAGE 5 FINDING 2. As a result of that injury, claimant sustained injuries to his left thumb and hand. CONCLUSION B. Claimant met his burden of proving a causal connection between his injury on April 2, 1984 and his left thumb and hand complaints. FINDING 3. Claimant has a 29 percent permanent impairment to the hand as a result of his April 2, 1984 injury. CONCLUSION C. Claimant has met his burden of proving he is entitled to fifty-five and one-tenth (55.1) weeks of permanent partial disability benefits because of the April 2, 1984 injury. ORDER THEREFORE, defendant is to pay unto claimant fifty-five and one-tenth (55.1) weeks of permanent partial disability benefits at a rate of two hundred sixty-five and 44/100 dollars ($265.44) per week. Defendant shall receive credit for benefits paid. Accrued benefits are to be made in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Code of Iowa, as amended. Costs are taxed to defendant pursuant to Division of Industrial Services rule 343-4.33. Defendant shall file a final report upon payment of this award. Signed and dated this 24th day of October, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. E. W. Wilcke Attorney at Law 826 1/2 Lake St. P. O. Box 455 Spirit Lake, Iowa 51360 Mr. Dick H. Montgomery Attorney at Law Professional Bldg. P. O. Box 7038 Spencer, Iowa 51301 1100; 1803.1 Filed October 24, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER DON SCHUBERT, Claimant, File No. 761337 vs. A R B I T R A T I O N JOHN MORRELL & COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. 1100 It was determined that claimant sustained an injury which arose out of and in the course of employment with employer. 1803.1 Claimant awarded 29 percent permanent partial disability to the hand as a result of the injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELIZABETH ANN ECKSTEIN, Claimant, File No. 761607 vs. A R B I T R A T I 0 N CHENHALL PERSONNEL SERVICES, INC., D E C I S I 0 N Employer, F I L E D and JAN 25 1990 THE TRAVELERS INSURANCE OF DES MOINES, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Elizabeth Ann Eckstein, claimant, against Chenhall Personnel Services, Inc., and its insurance carrier, The Travelers Insurance Company, defendants. The case was heard by the undersigned on the 4th day of January, 1990. The record consists of the testimony of claimant. The record also consists of joint exhibits 1-7. ISSUE As a result of the prehearing report and order submitted and approved on January 4, 1990, the issue presented by the parties is: 1. Whether claimant is entitled to permanent partial or total disability benefits. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury is stipulated; 2. That claimant sustained an injury on March 31, 1984, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary disability during a period of recovery; 4. That all temporary total disability/healing period benefits due and owing have been paid in full; 5. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be a scheduled member disability to the right foot; that the commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the 7th day of June, 1984; 6. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $121.10 per week; and, 7. All requested benefits under section 85.27 have been paid by defendants. FACTS PRESENTED Claimant is 45 years old. She was hired by Chenhall Personnel. Chenhall would then contract with various third parties. These third parties would use claimant's services at their place of business where claimant would perform various labor tasks. On the day in question, claimant had been contracted out to Honda where she was engaged in pulling stock from shelves. Claimant was using a special cart with a footstool equipped on the end. She was standing on the third step of the footstool and was reaching for a box from one of the shelves. The cart began moving and claimant attempted to grab one of the shelves for balance. Instead of balancing herself, claimant fell on her right ankle. Claimant was carried downstairs. She was treated at Mercy Hospital in Davenport, Iowa. A cast was placed on her right lower extremity. Richard L. Kreiter, M.D., P.C., treated claimant. He diagnosed claimant as having: "Possible small avulsion from the medical aspect of the talus and small area of calcification distal tip of lateral malleolus." Dr. Kreiter released claimant to return to work on June 6, 1984. In July of 1988, Dr. Kreiter wrote claimant's attorney. The physician opined: "on physical examination, there is very little impairment, however, a bone scan would show early degenerative changes and she would have a rather significant problem." Later, Dr. Kreiter opined in a letter dated October 10, 1988: I am writing again in regard to information on Elizabeth Eckstein. I find it, at the present time, difficult to give an honest permanent impairment rating because Elizabeth has full motion in her ankle and subtalar joints and her x-rays really look quite good. This does not mean that she does not have some early degenerative changes developing in her foot that are not yet apparent on x-ray. It is for this reason that I advised a focal bone scan with special emphasis on joints of the feet, to see if she is developing any changes in them. Should she then, it would be much easier for me to rate an honest impairment rating. At the present time, most of the evaluation has been subjective. I would be happy to see her again and order the bone scan and then make the disability rating. Finally, in April of 1989, Dr. Kreiter opined: [E]vidently the MRI of the ankle was normal. I do believe that she has vaguely a tendonitis, however, a bone scan would tell us if she has any early arthritic changes within the joint. I still feel that that is the best study. At her hearing, claimant testified she has had problems with her ankle since she was released to return to work. She reported her ankle swells when she engages in excessive walking and standing and that often the ankle becomes very hot to the touch. Claimant indicated she experiences a throbbing in her ankle once it begins to swell. Claimant stated her foot locks up and there is cramping from the ankle to two and one-half inches above the ankle. Additionally, claimant stated she wears corrective shoes with a lace top; she wears a jobst stocking and uses heat and ice packs on her ankle. Claimant also noted for the record that she had sustained a prior injury to her right foot. The injury occurred in February of 1978. Claimant testified she voluntarily terminated her treatment with Dr. Kreiter in 1989. This was attributed to a personality conflict between claimant and Dr. Kreiter. Claimant stated she had no additional plans for treatment by another orthopedic surgeon. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that she received an injury on March 31, 1984, which arose out of and in the course of her 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). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. 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 7 6, 760-61 (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 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 sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist, 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. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 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). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). ANALYSIS Claimant was released to return to work on June 6, 1984. The release was without any work restrictions. Dr. Kreiter, the treating orthopedic surgeon, found no functional impairment of the lower extremity. Dr. Kreiter also opined there was full range of motion of the ankle and subtalar joints. He determined claimant's lower extremity was normal by objective standards per a MRI. Dr. Kreiter did determine that claimant's complaints of pain were subjective in nature. On the other hand, claimant testified she has swelling of the lower extremity after she stands or walks for excessive periods of time. Additionally, claimant stated she is required to wear corrective shoes with a lace top for special support. She also reported she is required to wear a jobst stocking. Claimant was not required to wear the corrective shoes or the support stockings prior to her injury on March 31, 1984. The undersigned notes that claimant is requesting this division to substitute its judgment for that of the treating physician. Dr. Kreiter found no functional impairment. This issue has been addressed in the case of Leohr v. R & A Trucking, file number 812964 (App. Decn. November 30, 1989). In the appeal decision, the industrial commissioner wrote: Claimant is correct in stating that the industrial commissioner and deputy industrial commissioners are not bound by the impairment ratings of physicians in assessing disability for scheduled injuries. However, a review of the deputy's decision reveals that she properly considered the law and the evidence presented. In this case the deputy and the undersigned determined a physicians [sic] rating of impairment to be correct. That does not mean that evidence in another case might point to a different conclusion. In the present case, common sense dictates. Here claimant is required to wear corrective shoes and support stockings. It stands to reason that if claimant is without any functional impairment, these are unnecessary. However, since the shoes and the stockings have been prescribed, claimant does have a functional impairment. Claimant has been wearing these devices for nearly six years as means of support. Claimant also has had swelling for the same time period. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has a permanent partial disability to the right foot of three percent. This finding is based upon 1) the aforementioned considerations; 2) based upon the personal observation of claimant; 3) based upon claimant's testimony at the hearing; and, 4) based upon agency expertise (Iowa Administrative Procedures Act 17A.14(s)) FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence and principles of law presented, the following findings of fact and conclusions of law are made: Finding 1. Claimant sustained an injury to her right foot on March 31, 1984, which the parties stipulated arose out of and in the course of her employment. Finding 2. Claimant has a loss of use of her right foot of three percent. Finding 3. As stipulated, claimant's rate of compensation is $121.10 per week. Conclusion A. Claimant has established that she is entitled to permanent partial disability benefits of three percent of the right foot. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay claimant permanent partial disability benefits for four point five (4.5) weeks at the stipulated rate of one hundred twenty-one and 10/100,dollars ($121.10) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Costs of the action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 25th day of January, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. J. E. Tobey, III Attorney at Law 512 East Locust St Davenport, IA 52803 Ms. Vicki L. Seeck Mr. Richard McMahon Attorneys at Law 600 Union Arcade Bldg 111 East Third St Davenport, IA 52801 1803 Filed January 25, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELIZABETH ANN ECKSTEIN, Claimant, File No. 761607 vs. A R B I T R A T I 0 N CHENHALL PERSONNEL SERVICES, INC., D E C I S I 0 N Employer, and THE TRAVELERS INSURANCE OF DES MOINES, Insurance Carrier, Defendants. 1803 Claimant sustained a three percent permanent partial disability to the right lower extremity. The treating physician determined there was no functional impairment. Nevertheless, jobst stocking and corrective shoes were prescribed for claimant by that physician.