BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUSSELL W. BOWERS, Claimant, VS. FILE NO. 766837 LEHIGH PORTLAND CEMENT CO., A R B I T R A T I 0 N Employer, D E C I S I O N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Russell W. Bowers, claimant, against Lehigh Portland Cement Company, employer, and Travelers Insurance Company, insurance carrier, for benefits as a result of an injury which occurred on June 9, 1984. A hearing was held at Mason City, Iowa on September 5, 1986 and the case was fully submitted at the close of the hearing. The record consists of the testimony of Russell W. Bowers (claimant), Cindy Baker (a person who lives with claimant), and Lou Fasing (supervisor of safety and training); claimant's exhibits 1 through 23; and defendants' exhibits A through E. STIPULATIONS At the time of the hearing the parties stipulated to the following matters: That an employer/employee relationship existed between the employer and claimant at the time of the injury. That the claimant sustained an injury on June 9, 1984 which. arose out of and in the course of.his employment with the employer. That the injury was the cause of some temporary disability. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is scheduled member disability to the lower left extremity. That the commencement date for permanent partial disability, in the event such benefits are awarded, is April 15, 1985. BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 2 That the rate of compensation in the event of an award is $269.93. That all authorized medical benefits have been or will be paid under Iowa Code section 85.27. That the defendants are entitled to credit for 35 weeks of temporary total disability already paid at the rate,of $269.93 per week and temporary partial disability in the amount of $535.24 for the period from January 8, 1985 to January 29, 1985. ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: Whether the injury was the cause of additional temporary disability for which the claimant has not been paid. Whether the injury was the cause of any permanent partial disability. Whether the claimant is entitled to additional temporary disability benefits. Whether the claimant is entitled to permanent partial disability benefits. SUMMARY OF THE EVIDENCE Claimant testified that he is 37 years old, divorced, and has lived with Cindy Baker since before this injury. He has two children. He completed high school and two years of college at North Iowa Area Community College. He qualified for the Associate of Arts Degree but did not pay the fee for a certificate and therefore never received it. Before he went to college he worked for his father for five years as an apprentice electrician after high school. Claimant began working for the employer on March 4, 1976 and has performed various different jobs for them such as yard laborer, shift laborer, miller helper and burner helper. On June 9, 1984, he was injured while trying to unblock the fourth stage of the preheat tower. He opened the Osuicide doors" and was poking air rods up in there to free the fourth stage when hot dust hit the floor and flowed like water over the floor. It went over his boot through the stitching and severely burned his left foot. His foot was placed in a five gallon pail of water and he was taken to Mercy Hospital at Mason City for emergency care where he was treated by A. G. Chanco, M.D., who was on call. Dr. Chanco cleaned, dressed and wrapped the wound. After that claimant was treated by Philip R. Caropreso, M.D., a general surgeon, who treated claimant for deep second and third degree BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 3 burns of the dorsum of the left foot. According to his office notes, he saw claimant 11 different times from June 11, 1984 through September 6, 1984 (Claimant's Exhibit 1). As early as July 19, 1984, the initial skin healing had occurred, but claimant began to have trouble with ulcerations due to wearing work boots according to Dr. Caropreso. 7/19/84 PC Burns have epithelized in the dorsum of the left foot. However, in attempting to wear his boots, which is necessary before he returns to work, the patient ulcerated and blistered the burned areas. Advised to continue to wear the cast boot for the next two weeks. Do not attempt to wear boots any more. Return to see me August 7, 1984. (Cl. Ex. 1, page 5) On August 7, 1984, claimant continued to have trouble. 8/7/84 PC The patient's burn wound in the left foot is ulcerated again in its lateral aspect. The patient states that he tried wearing sandals without any socks and the rubbing of the sandals caused the breakdown of the skin. I advised him to go back to the cast shoe. Put nothing over this area that will rub against it. See me again in one week. (Cl. Ex. 1, p. 5) Claimant continued to complain of ulcerations and that the wound opened up and Dr. Caropreso then referred claimant to C. Joseph Plank, M.D., a dermatologist. Dr. Plank saw claimant nine times from July 12, 1984 to January 21, 1985 (Cl. Ex. 2). Dr. Plank verified that claimant did demonstrate eczema, raw skin, small ulcers, persistent superficial erosions, irritation, erythema and some bleeding in the burn wound area. The wound area is very sensitive to anything which touches it. Claimant expressed "tremulous" concern about losing his job because he could not wear boots (Cl. Ex. 2, pp. 2 & 3). Dr. Plank recommended and claimant did try working on light duty wearing tennis shoes. On January 10, 1985 and again on January 21, 1985, Dr. Plank said that he had no explanation for the erosions and no treatment for them that worked. He referred claimant to Mayo Clinic and expressed the desire that claimant not return to his office again (Cl. Ex. 2, pp. 4 & 5; Cl. Ex. 5). The following comments fairly summarize Dr. Plank's final position: Because of the continued complaints of extreme discomfort and inability to wear any kind of shoes, even though he continued to use the Duoderm gauze pads under the sock and shoe, the patient was told that he would have to be evaluated elsewhere as my expertise had been exhausted. In essence, the skin appeared essentially normal for having sustained a burn. The continued opening and eroding of the skin was unexplainable based upon my medical background and knowledge. To be unable to tolerate even a soft shoe and standing during work is not understandable. (Cl. Ex. 9) Dr. Plank did not make a finding of any permanent impairment BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 4 and accordingly, he did not give a permanent impairment rating. Dr. Plank did comment that a photograph had been taken, but no photograph was introduced into evidence at the hearing. Claimant was also treated by Jon R. Yankey, M.D., and David A. Ruen, M.D., two family practice physicians, on approximately 22 occasions from November 30, 1984 through February 25, 1985 at the request of the employer (Cl. Ex. 3). Dr. Yankey found several small scattered superficial erosions and surrounding erythema over the lateral dorsum of the left foot; a violaceous discolored area laterally; and the area was objectively sensitive to light touch. Like Dr. Plank, he could not medically explain the worsening of the left foot. He and Dr. Plank concurred with the Mayo Clinic recommendation of continued conservative care of the wound with ointments, creams and duoderm dressings. Claimant expressed opposition to returning to work on January 9, 1985 to do light filing in tennis shoes, but on January 18, 1985 he said the job was not causing him any problem, but the wound was bleeding which was verified by Dr. Yankey. Mr. Lou Fasing, safety training supervisor, was present with the claimant and Dr. Yankey at this examination. It was agreed claimant would continue with conservative medical care and continue to do his light filing job at the plant. Dr. Ruen and Dr. Plank reached the same conclusion on January 25, 1985, that claimant should continue with his light duty work (Cl. Ex. 3, p. 3). On February 4, 1985, Dr. Ruen found claimant's healing slightly better and said that he could work on the following day, February 5, 1985. While under the care of Dr. Yankey and Dr. Ruen from November 30, 1984 to February 25, 1985, claimant continued to have recurrent ulcers or erosions (Cl. Ex. 3). Dr. Yankey referred claimant to Sigfrid A. Muller, M.D., of the Dermatology Department of the Mayo Clinic by a letter on November 30, 1984 for evaluation and recommendations concerning further care of claimant's left foot. He also requested Dr. Muller's opinion on whether claimant was able to return to work on light duty wearing a soft shoe such as a tennis shoe or jogging shoe and not be required to do any heavy lifting or straining (Cl. Ex. 6). Dr. Muller saw claimant on December 5, 1984. His examination revealed an area approximately 4 cm. x 4 1/2 cm. of erythema and scarring with small areas of superficial erosions with considerable tenderness. K. A. Johnson, M.D., of the Mayo Clinic Department of Orthopedics felt the skin was unstable and that claimant might need some sort of composite replacement of the involved deeply scarred skin. Jack Fisher, M.D., of the Mayo Clinic Plastic Surgery Department recommended continued conservative management and then a recheck of the wound on January 4, 1985 to see if the scar continues to be sensitive and easily ulcerated (Cl. Ex. 7). On January 7, 1985, Dr. Muller wrote that reexamination of the claimant showed considerable healing and less erythema, but that a few erosions remained. The area was very painful. Dr. Fisher, the plastic surgeon, thought the conservative approach was still appropriate; but found it difficult to explain the origin of the pain since there was no crushing injury. If the scar should continue to break down, then incision and grafting BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 5 might be necessary. Dr. Muller felt that claimant could return to work on a job that did not require much heavy lifting or walking. Dr. Muller took photographs of the lesion of the foot but they were not admitted into evidence (Cl. Ex. 8). Claimant returned to work at light duty filing and lifting one pound and two pound files occasionally and sitting and cross-referencing written materials wearing a soft shoe on approximately January 7, 1985. Dr. Plank and Dr. Yankey agreed on January 11, 1985, that the duties were not causing or worsening the claimant's foot condition (Cl. Ex. 10). Apparently, claimant did not work for some reason from approximately January 29, 1985 to February 4, 1985. On February 4, 1985, Dr. Ruen stated that claimant could return to work. Also on February 5, 1985, Dr. Ruen issued a note that said claimant may carry up to 20 to 25 pounds without restrictions and that he may walk 30 to 50 feet every 30 to 45 minutes (Cl. Ex. 12). Dr. Muller reported that he saw claimant on February 20, 1985 at which time claimant had a 3 x 2 cm. ulceration on the dorsum of the left foot with severe pain at the site. Claimant said he felt working (walking and filing only) worsened his condition. Claimant was then referred to G. B. Irons, M.D., of the Mayo Clinic Plastic and Reconstructive Surgery Department. Dr. Irons very succinctly describes the chronology of events after that in a letter dated April 19, 1985 as follows: I saw Mr. Bowers first on February 20, 1985 for evaluation of an old burn on the lateral dorsum of his left foot. The burn had occurred seven months previously but had healed down to a quarter sized superficial defect. I recommended conservative care and saw him back on March 6th at which time it was healing but very slowly and I felt that a skin graft would speed things up considerably and this was done as an outpatient under local anesthesia on that date. He was seen back on March 12, 1985 and again on April 3rd at which time he was noted to have a good take of the skin graft and was healing nicely. He was then referred back to his local physician and I have not seen him since that time, but Doctor Ruen called me on April 8th to discuss Mr. Bowers' returning to work. I told Doctor Ruen that I saw no contraindication to him returning to work, but I would leave that final judgment up to him. (Cl. Ex. 13) After claimant's skin graft on March 6, 1985, Dr. Ruen released claimant to return to work with no restrictions on April 12, 1985 (Cl. Ex. 12). Dr. Muller describes the events that occurred to the claimant after the skin graft in a letter dated July 2, 1986, which he drafted after he saw the claimant for the last time on June 17, 1986. I saw again Mr. Russell W. Bowers of Mason City, on June 17, BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 6 1986. He had not been seen by us since a year ago last April, at which time he had been dismissed after a skin graft to the burn site on the dorsum of the left foot. The area healed satisfactorily with a 100% take of the skin graft. He subsequently returned to work in the "yard gang" where he ran small equipment, wearing a steel-toed boot, for about three weeks and then he was laid off until approximately October, 1985, when he worked again in a similar situation for approximately four weeks before being laid off again. He began jogging in mid-April or so and noted increased tenderness and some drainage at the former burn site on the dorsum of the left foot and when he was recalled to work in mid-May, 1986, he could only work for three days because of increased pain and soreness at the skin graft site on the dorsum of the left foot. He was under the care of Doctor Caropreso since that time and has been using telfa daily and staying off his foot as much as possible. (Cl. Ex. 19) Dr. Muller's examination on June 17, 1986, found a well healed scar that was freely moveable 2 x 3 cm. in size on the mid-dorsum of the left foot and within the scar he had three small areas of approximately 6 to 8 mm. of superficial erosion. There was no sign of infection. The lesions were healing satisfactorily and the doctor anticipated they would heal completely in one or two more weeks. Dr. Muller said that he saw no reason why claimant could not return to work. Dr. Muller made no finding of permanent impairment and likewise made no permanent impairment rating (Cl. Ex. 19). In his final report dated November 15, 1985, Dr.,Ruen stated that after the skin graft in March of 1985, claimant was returned to full activity without restrictions on April 12, 1985. The skin graft site has taken extremely well. Claimant has occasional itching and swelling for which he applies lotions and foam pads. The graft is approximately 2 cm. x 3 cm. and is hyperpigmented and thinner than the skin on the rest of his foot. He concludes as follows: On his multiple examinations over the course of the last several months, I have not noticed any breakdown in the skin, however, he describes some hypersensitivity to this area with exam. His range of motion and strength in his foot is entirely within normal limits. I believe that his prognosis is excellent. I do not feel that there is any functional permanent impairment in his foot. (Cl. Ex. 16) Dr. Ruen likewise did not assess a permanent impairment rating. Also on November 14, 1985, Dr. Caropreso examined the claimant and reported a faint burn wound along the lateral dorsal aspect of the left foot about 2 cm. x 3 cm. with a hyperpigmented skin graft in the proximal portion of the wound. The skin is dry, but supple. There are no masses, no motion dysfunction and no loss of range of motion. There is tenderness to light touch in the area of the skin graft. He states there has been no breakdown of the skin on the dorsum of his foot since the skin BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 7 graft healed. Dr. Caropreso concludes as follows: Mr. Bowers seems to be disabled from his burn wound injury. With the exception of some hyperpigmentation, dry skin, and tenderness, no other evidence can substantiate the extent of his difficulties. Nevertheless, it would not be uncommon for skin grafted areas and healed burn wounds to be temperature sensitive and/or pressure sensitive for the remainder of a person's life. No definite functional disability can be made at this time until at least one year has passed from the time of his skin grafting. I plan to follow Mr. Bowers up to evaluate the effect of my treatment. (Cl. Ex. 15) On May 6, 1986, Dr. Caropreso reported that the cream which he had prescribed six months ago had failed to help claimant's condition and that his medical treatment had not helped the claimant's complaints. Only additional surgery can be recommended. Claimant was discharged unless he elects to pursue additional surgery such as a thicker graft, a pedicle flap, or some form of microvascular surgery where thicker tissue is grafted to the area (Cl. Ex. 17). The parties stipulated that claimant was off work from June 10, 1984, until January 6, 1985, which is the day after the BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 8 injury to the day Dr. Muller, Dr. Yankey, Dr. Plank, Fasing and claimant agreed that he should try to work on light duty. These dates are confirmed by Dr. Ruen (Cl. Ex. 16). During that period benefits were suspended for 13 days from November 16, 1984 to November 29, 1984 because claimant failed to go see Dr. Yankey as he was directed to do by the employer (Iowa Code section 85.39). Fasing testified that claimant called him on the telephone on November 14, 1984 to inquire about getting his workers' compensation check. Fasing said he told claimant it would be coming with the letter that said that claimant was to go see Dr. Yankey at 3:45 p.m. on November 16, 1984. Defendants' exhibit D is a copy of that letter dated November 14, 1984. It has a handwritten notation by Fasing at the bottom of the letter that indicates that he told the claimant at 1:30 p.m. that day that this letter was going out that night and that Fasing had notified the claimant of what was on the letter. The letter states it is in regard to a possible return to work. Fasing also noted at the bottom of the letter that claimant was not too happy about it. At the hearing Fasing testified that claimant ..called Dr. Yankey a baby doctor. Fasing said that when he found out claimant did not keep the appointment he was instructed by his superior to suspend the claimant's benefits. A new appointment was made for November 30, 1984, which claimant did keep. The letter of suspension of benefits is defendants' exhibit B. Claimant testified that Fasing told him about the appointment but did not tell him the time and date of the appointment. Claimant further testified that he did not receive the letter until November 17, 1985, the day after the appointment date. Claimant further stated that the rural road that he lived on was out and that may have delayed delivery of the letter. The letter itself does not indicate that it was sent by certified mail return receipt requested as the other defendants' exhibits, but it may have been sent that way because Fasing testified that he did not have the return receipt with him at the hearing. Fasing also testified that he did not have the cancelled workers' compensation check so that it could be seen what day it was cashed. The parties stipulated that claimant was off work again from January 29, 1985 to April 14, 1985. These dates are confirmed by Dr. Ruen (Cl. Ex. 16). It is not immediately clear from the evidence why claimant did not work from January 29, 1985 to February 5, 1985. Benefits were suspended again for 13 days from February 5, 1985 to February 19, 1985. This was during the period of light duty when claimant wore light shoes and was supposed to cross-reference engineering materials in Fasing's office. Fasing stated that claimant would cross-reference materials for 30 to 45 minutes with his foot elevated and then claimant, at his own discretion, would walk approximately 52 feet three or four times a day to file them. By contrast, claimant stated that he was required to file books and to be on his feet all day in violation of Dr. Ruen's instructions of keeping his foot elevated 30 to 45 minutes out of every hour (Cl. Ex. 12, p. 1). Fasing said he called Dr. Ruen and described the work and gave claimant the opportunity to hear the conversation by holding the phone away from his ear. Claimant on the other hand denied that Fasing had called Dr. Ruen in his presence. Dr. Ruen's BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 9 office notes on February 5, 1985, do not record a call from Fasing, however, at the same time they do not record the restriction slip that Dr. Ruen gave to claimant on the same date (Cl. Ex. 12, p. 1). Defendants' exhibit C is a letter of suspension of workers' compensation benefits for refusal to work under Iowa Code section 85.33. Claimant's exhibit 22 is a letter of disciplinary layoff effective February 5, 1985 until February 19, 1985 for failure to follow instructions and insubordination and refusing to work at the direction of Fasing in the engineering department. The parties' stipulated the claimant was off work from May 19, 1986 to August 7, 1986. Claimant testified that he returned to work full time as a burn tender on May 12, 1986. He worked three days but it caused erosions on his foot. He went to see Dr. Caropreso and Dr. Caropreso took him off work. Dr. Caropreso was his own choice of physicians. Claimant did not ask or tell the employer that he was going to see Dr. Caropreso. There was no evidence that Dr. Caropreso notified the employer or insurance carrier that he saw the claimant on that date. Claimant testified that he was never told that Dr. Caropreso was no longer an authorized physician by the employer. Claimant denied he paid Dr. Caropreso and Fasing denied that the employer or carrier had paid Dr. Caropreso. There was evidence that Dr. Caropreso had treated claimant for sore throat and other matters in the past (Cl. Ex. 1). Fasing testified that during this period of time Dr. Muller was the only authorized physician. Dr. Muller said he could go back to work after he examined claimant on June 17, 1986 (Cl Ex. 19), but claimant did not do so. Fasing said he did not inform claimant of Dr. Muller's letter, but claimant's attorney received this report on July 24, 1986 according to the date stamp on the exhibit. Also, it was brought out that in the interrogatories claimant's attorney acknowledged that the authorized physician was Dr. Muller at this time. Claimant testified he did not get a return to work slip from Dr. Muller and the company did not tell him he was released to come back to work. Claimant testified that he did not get a copy of Dr. Muller's letter and that he did not know he was supposed to return to work after seeing Dr. Muller. The office notes of Dr. Caropreso for May 19, 1986 verified that claimant returned to work on May 12, 1986, May 13, 1986 and May 14, 1986. He had to wear steel toed boots which he had not worn for a year. He climbed stairs and worked in increased temperatures, and this caused his foot to cramp. Claimant said his foot became stiff and he could barely walk on it. Dr. Caropreso states that Mr. Bowers further stated, "I don't care if I ever go back there." His examination found erythema probably secondary to bandage usage and a 1 cm. superficial abrasion through the skin graft in its central portion. There was no other sign of injury or infection. Because of the ulceration he recommended that claimant stay off work and come back and see him in eight days (Cl. Ex. 18, p. 1). Claimant's exhibit 22 is a short note from Dr. Caropreso that he saw claimant on the following dates in 1986 -- May 6, 1986, May 19, 1986, May 27, 1986, June 5, 1986, July 1, 1986, July 7, 1986, July 22, 1986 and August 7, 1986. Dr. Caropreso's BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 10 next office note is for the date August 7, 1986 at which time he says he has nothing to offer the claimant medically, he will recommend customed fitted shoes, and that claimant should return to work (Cl. Ex. 22). There are no office notes or medical reports for five of the office visits -- May 27, 1986, June 5, 1986, July 1, 1986, July 7, 1986 and July 22, 1986. Claimant testified that he still has difficulties with his left foot. He stated that he has episodic, periodic open ulcerations, swelling, numbness and soreness and he feels they will always be there. There is a discolored area on his left foot measuring approximately two inches by four inches. The area of the ulceration is approximately 1 1/2 inches x 2 inches. The pain is constant. The skin is thin and dry. The skin cracks and breaks down easily. It feels like dead skin. The scar area is very thin skin. Weather changes effect it. Heat burns this area like a burn. Swelling may last from one day to one week. If he walks long distances his foot gets sore. Climbing ladders as a burner helper or an electrician causes it to swell. Climbing stairs pulls the skin apart and causes it to bleed. He cannot ski because he cannot wear boots. Jogging causes his foot to swell, crack and break open. The burn area itches all of the time and he puts hand lotion on it every day. Numbness comes and goes. Many of these complaints are the same complaints that the claimant described to the doctors during the course of his treatment. Cindy Baker testified that she has lived with claimant since before the injury on June 9, 1984. He had no problem with his left foot prior to the injury. She said he had constant pain, itching and throbbing in his skin graft area. He cannot walk long distances. He does have periodic erosions, ulcerations and excoriations. He has tried to get well and has done,nothing contrary to that objective. She has observed that his skin continually cracks, breaks open and bleeds. The burn area is a different color and texture. It is dry, tender, sensitive and cracks open if it is bumped. He cannot stand sunlight or heat on the area. He has to keep it covered up most of the time. He carries lotion and uses it all of the time. He has done everything he knows how to do and it still does not heal. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of June 9, 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, BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 11 the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from June 9, 1984, the day of the injury, until January 6, 1985 which is the day Dr. Muller, Dr. Yankey and Dr. Plank agreed that he should try to return to work on light duty. Dr. Ruen also confirmed these same approximate dates (Cl. Ex. 12) and the parties stipulated claimant was off work for this period of time. An issue exists as to whether the claimant is entitled to benefits from November 16, 1984 to November 29, 1984 for 13 days for refusing or failing to keep an appointment with Dr. Yankey. Iowa Code section 85.39 states that the employee shall submit to examinations requested by the employer without cost to the employee. It further provides: "...The refusal of the employee to submit to the examination shall suspend the employee's right to any compensation for the period of the refusal. Compensation shall not be payable for the period of suspension.O Fasing said he mailed the notice and it should have been received prior to the appointment. Claimant testified that he received the letter the day after the appointment. Fasing testified that he informed claimant of the time and date of the appointment verbally on the telephone on November 14, 1985. Claimant denied that Fasing told him the time and date of the appointment on the telephone. This letter is not marked certified mail return receipt requested as the other letters in the defendants' exhibits, but Fasing testified that he did not have the return receipt with him at the hearing. Neither did he have the cancelled check for the workers' compensation payment to show what date it was cashed. This problem of whether the claimant was notified could have been avoided by Fasing had he sent the letter certified mail return receipt requested in a timely matter. All of the other letters in the defendants' exhibits were sent in this manner. Therefore, it is determined that claimant should not be denied benefits from November 16, 1984 to November 29, 1984 because it was not established by the proponent of the suspension that the claimant had actual notice of the time and date of the appointment. Fasing's testimony was controverted by the claimant's testimony. Consequently, claimant is entitled to temporary total disability benefits from June 10, 1984 to January 6, 1985. The evidence is not sufficient to determine the claimant's entitlement to temporary partial disability benefits but the parties did not indicate that that was an issue to be determined by this decision. BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 12 The next issue to be decided is whether the injury was the cause of additional temporary disability and whether the claimant is entitled to temporary total disability benefits for the period from January 29, 1985 to April 14, 1985. The parties stipulated the claimant was off work for that period of time. Dr. Ruen agreed to the same approximate dates (Cl. Ex. 16). The evidence is not sufficient to make a determination for the time between January 29, 1985 and February 5, 1985. It is not clear why claimant did not work during this period of time, but on February 5, 1985 a dispute arose between Fasing and claimant as to whether cross-referencing and filing the engineering booklets violated the restrictions imposed by Dr. Ruen. Fasing testified that, claimant could sit and cross-reference for 30 to 45 minutes and then get up and file the one pound materials only three or four times a day. Claimant on the contrary testified and generally alleged that the filing entailed several trips and violated the weight restrictions. Fasing said he called Dr. Ruen and described the work and Dr. Ruen approved it. He gave the claimant the opportunity to hear the telephone conversation. Claimant on the other hand denied that Fasing called Dr. Ruen in his presence. On February 4, 1985, Dr. Ruen said claimant could go back to work on February 5, 1985 (Cl. Ex. 3, p. 4). Dr. Ruen's notes do not record a telephone call from Fasing on February 5, 1985; however, neither do they record the restriction slip given to the claimant also on February 5, 1985 (Cl. Ex. 12, p. 1). BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 13 On February 6, 1985, Dr. Ruen checked the foot and stated that it is slightly improved and the best that he has seen this injury to be. This statement disproves the claimant's contention that cross-referencing and filing had worsened the condition of his foot (Cl. Ex. 3, p. 4). The February 6, 1985 note also records that claimant was having trouble at work regarding his restrictions and had been suspended (Cl. Ex. 3, p. 4). The notes do not record that this restriction had been violated or in what manner the restrictions had been violated. Claimant could have resolved this issue by asking Dr. Ruen's intervention on his behalf if, in fact, the restrictions were violated but instead claimant choose to refuse to work at the special task that had been provided for him. Considerable effort was expended by the combined efforts of Dr. Muller, Dr. Yankey, Dr. Plank, Fasing and claimant to get the claimant back to work on a light duty basis. There is no reason to believe that Dr. Ruen would not have intervened in claimant's behalf if Dr. Ruen's restrictions had been violated. Iowa Code section 85.33(3) provides: If an employee is temporarily, partially disabled and the employer for whom the employee was working at the time of injury offers to the employee suitable work consistent with the employee's disability the employee shall accept the suitable work, and be compensated with temporary partial benefits. If the employee refuses to accept the suitable work the employee shall not be compensated with temporary partial, temporary total, or healing period benefits during the period of the refusal. The claimant has the burden of proof that he is entitled to benefits for this period of time. The employer has proven that employment was available which claimant could do through special arrangements. Claimant failed to prove by a preponderance of the evidence that he could not do this work. Consequently, claimant is not entitled to temporary disability benefits from January 29, 1985 through March 5, 1985. Claimant has proven he is entitled to temporary total disability benefits from March 6, 1985 to April 12, 1985 which is from the date of his skin graft at Mayo Clinic (Cl. Ex. 13) to the date Dr. Ruen released claimant to go back to work (Cl. Ex. 12, p. 2). The next issue is whether claimant is entitled to temporary total disability benefits from May 19, 1986 to August 7, 1986 or beyond while special shoes were ordered. Claimant returned to his old job on May 12, 1986 and worked three days. on May 19, 1986, claimant saw Dr. Caropreso because the steel toed boots caused his foot to cramp. Dr. Caropreso recommended that he not work and report back in eight days. Dr. Caropreso was claimant's choice of physician. Claimant did not ask the employer or tell the employer he was going to see Dr. Caropreso. There was no evidence Dr. Caropreso reported to the employer that claimant had seen him or that claimant was taken off work. Claimant's attorney acknowledged in the interrogatories that Dr. Muller was the authorized physician at this time. There is no indication that Dr. Caropreso was an authorized physician at this time. BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 14 Claimant testified that he had seen Dr. Caropreso earlier and no one ever told him he was no longer an authorized physician. However, claimant had not been treated for over a year and a-half by Dr. Caropreso for this injury. Notice to counsel constitutes notice to the client. If counsel knew that Dr. Caropreso was no longer authorized, any failure to communicate that information to claimant is to be held against claimant, not the employer. Claimant, not the employer, selected claimant's counsel. Furthermore, claimant was told to come back in eight days. Claimant did go back and did see Dr. Caropreso five times on May 27, 1986, June 5, 1986, July 1, 1986, July 7, 1986 and July 22, 1986, but there are no office notes or reports for these visits introduced into evidence to determine whether visits were for this injury or some other condition? Did Dr. Caropreso release the claimant to return to work eight days later on May 27, 1986 or on one of these subsequent visits? The injury claimant reported to Dr. Caropreso on May 19, 1986 was only a 1 cm. superficial abrasion in the skin graft and erythema from bandage application. It does not seem like this would cause claimant to be off work for another four months until August 7, 1986. Moreover, Dr. Muller said claimant was able to work on June 17, 1986 (Cl. Ex. 19). This report was received by his attorney on July 24, 1986. Claimant said Dr. Muller's letter and statement that he was able to work was never communicated to him. This is possible, but not probable. Claimant had the duty to find out what,his work status was after seeing Dr. Muller if he intended to establish that he was temporary totally disabled at that time. For the foregoing reasons it is found that the claimant has not proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from May 19, 1986 to August 7, 1986 or thereafter while special boots were possibly to be ordered for him by Dr. Caropreso. Claimant contends that he is entitled to permanent partial disability benefits even though none of the doctors who treated him found any permanent impairment or assessed a permanent impairment rating. Claimant cites Conyers v. Ling-Casler Joint Venture, Volume 2, State of Iowa Industrial Commissioner Decisions 309 (1984) appeal decision in which it was stated: ...The absence of a functional impairment rating does not preclude an award. The Iowa Administrative Procedure Act, chapter 17A of the Iowa Code, and more specifically section 17A.14(5) recognizes utilization of "[t]he agency's experience, technical competence and specialized knowledge" to evaluate evidence. It should be noted that this authority is not generally used as a substitute for available medical evidence. This authority is only used rarely as an exception to the general rule of relying on medical expertise to establish impairment and the degree of impairment. In this case Dr. Plank, a dermatologist, commented that claimant's subjective complaints exceeded his objective medical findings (Cl. Ex. 9). He treated claimant at least nine times over a six month period and observed the wound several times but BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 15 made no finding of permanent impairment and did not give an impairment rating. Dr. Yankey and Dr. Ruen treated claimant approximately 22 times for a three month period and saw the wound many times. Neither doctor found any permanent impairment or gave an impairment rating. On the contrary, Dr. Ruen said there was no functional impairment (Cl. Ex. 16). Dr. Irons, a plastic surgeon at the Mayo Clinic, found the skin graft had a good take and he returned claimant to normal work duties. He made no finding of permanent impairment and gave no impairment rating. Dr. Muller, a dermatologist at the Mayo Clinic, saw the claimant approximately five times. On June 17, 1986, he saw no reason why claimant could not return to work. He made no finding of permanent impairment and gave no impairment rating. Dr. Caropreso saw claimant about 11 times in 1984 and approximately eight times in 1986. He saw the wound many times. He even stated claimant "seems to be disabled from his burn wound injury" but failed to use this opportunity to make his own personal finding of permanent impairment or give a permanent impairment rating on November 14, 1985. Dr. Caropreso saw the claimant approximately eight times in 1986, which were all more than one year after the skin graft, and Dr. Caropreso did not make a finding of permanent impairment or make an assessment of a permanent impairment rating. If five competent doctors, most of whom are specialists, viewed this wound injury on numerous occasions over a two year period and did not find any permanent impairment or give an impairment rating, it seems presumptuous for the hearing deputy to endeavor to make a finding of permanent impairment and arrive at an appropriate permanent impairment rating. Dr. Plank took at least one photograph of the injury and Dr. Muller took more than one photograph of the injury but no photographs were introduced into evidence by either party. In Arce v. Sandra Pollock d/b/a Electric Doughnut, Volume IV, Iowa Industrial Commissioner Report 14 (Review-Reopening 1983) the hearing deputy did have the opportunity and advantage of viewing the wound. In this case, for reasons of their own choosing, the wound was not displayed at the hearing. If five competent doctors who viewed the wound on myriad occasions cannot find permanent impairment and assess a rating, it does not seem appropriate for the hearing deputy who never saw the wound and never saw even a photograph of the wound to attempt to find permanent impairment or to conjecture what an appropriate rating should be. This is not to say that the claimant has not suffered because there is physical evidence that his skin does encounter small ulcerations in the wound area which have caused him a great deal of difficulty. The problem is that several medical experts did not believe it prevented him from working or that it caused BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 16 him to be permanently impaired. For this reason it must be concluded from the evidence presented at the hearing that the claimant has not proven by a preponderance of the evidence that he sustained a permanent partial disability. FINDINGS OF FACT WHEREFORE, based upon the evidence presented the following findings of fact are made: That the claimant was employed by the employer at the time he sustained a severe burn injury to the lateral aspect of the dorsum of his left foot on June 9, 1984. That the injury caused claimant to be off work for medical treatment and recuperation from June 10, 1984 to January 6, 1985. That the dead conflict of testimony between Fasing and the claimant on whether claimant received either verbal or written notice to go to see Dr. Yankey on November 16, 1984 at the employer's request is resolved in favor of the claimant because the employer could have sent the notice by certified mail return receipt requested and either failed to send it that way or failed to produce the return receipt at the hearing. That the employer did prove that employment was available to the claimant from January 29, 1985 to March 5, 1985 of a light duty nature within the claimant's capability in the opinion of his doctors. That the claimant did not prove by a preponderance of the evidence that this work exceeded his restrictions or that he was justified in refusing to do this work. That the claimant did lose time from work from March 6, 1985 to April 12, 1985 for a skin graft at the Mayo Clinic on March 6, 1985 and that he was recuperating until he was released to return to work by Dr. Ruen on April 12, 1985. That claimant did not prove that Dr. Caropreso was an authorized physician from May 6, 1986 through August 7, 1986 or that he was unable to work during that period of time or subsequent to it due to the injury of June 9, 1984. That none of the six doctors who treated claimant on several occasions, Dr. Caropreso, Dr. Plank, Dr. Yankey, Dr. Ruen, Dr. Irons or Dr. Muller found any permanent impairment or gave any permanent impairment rating. That claimant is not entitled to mileage for his trips to see Dr. Caropreso in claimant's exhibits 21 and 22. That claimant is entitled to medical mileage for one trip to Mayo Clinic on July 2, 1986 for 190 miles at $.21 per mile in the total amount of $39.90. CONCLUSIONS OF LAW BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 17 WHEREFORE, based upon the evidence presented and the principles of law previously stated the following conclusions of law are made: That the injury of June 9, 1984 was the cause of temporary total disability from June 10, 1984 to January 6, 1985 and again from March 6, 1985 to April 12, 1985 and that the claimant is entitled to temporary total disability benefits for those periods of time. That the injury of June 9, 1984 was not the cause of any permanent partial disability. That the claimant is not entitled to medical mileage for his trips to see Dr. Caropreso in 1986 but he is entitled to medical mileage for his trip to the Mayo Clinic and return on July 2, 1986. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty point seven-one-four (30.714) weeks of temporary total disability benefits for the period June 10, 1984 to January 6, 1985 and five point two-eight-six (5.286) weeks of temporary total disability benefits for the period March 6, 1985 to April 12, 1985, a total of thirty-six point zero-zero-zero (36.000) weeks of temporary BOWERS V.LEHIGH PORTLAND CEMENT CO. Page 18 total disability benefits at the rate of two hundred sixty-nine and 93/100 dollars ($269.93) per week in the total amount of nine thousand seven hundred seventeen and 48/100 dollars ($9,717.48). That the defendants pay these benefits in a lump sum less credit for benefits previously paid. That interest will accrue under Iowa Code section 85.30. That defendants pay the claimant thirty-nine and 90/100 dollars ($39.90) for one hundred ninety (190) miles round trip mileage to the Mayo Clinic on July 2, 1986. That each party pay their own costs of preparing the case for hearing, except defendants are to pay claimant thirty and no/100 dollars ($30.00) for the cost of a report from Dr. Irons and thirty and no/100 dollars ($30.00) for the cost of a report from Dr. Muller (Cl. Ex. 20) and defendants are to pay for the cost of the shorthand reporter at the hearing. That the defendants file activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1. Signed and filed this 29th day of January, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey, III Attorney at Law 214 North Adams P. 0. Box 679 Mason City, Iowa 50401 Mr. Jon Stuart Scoles Attorney at Law 30 Fourth St. N.W. P. 0. Box 1953 Mason City, Iowa 50401 1402.40; 1403.30 1800; 1803 Filed January 29, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUSSELL W. BOWERS, Claimant, VS. FILE NO. 766837 LEHIGH PORTLAND CEMENT CO., 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; 1403.30 Burden of proof for a suspension of benefits under 85.39 for refusal to see a doctor was upon the employer. A dead conflict of testimony as to whether claimant received timely notice of the appointment was resolved in favor of the employee. Burden of proof to entitlement to temporary total disability benefits was upon the employee. Where employer proved light work was provided that the employee could do, and then the employee later refused to do it and received a disciplinary suspension, was resolved in favor of the employer because employee did not prove that he was justified in refusing to do the work. (Section 85.33(3)). 1800 Claimant allowed temporary total disability from date of injury to time when light work was provided and a second period of time for a surgery and period of recuperation. 1803 Claimant established that he continued to have small ulcerations and erosions in his burn wound on his foot up until the time of hearing. Four doctors did not make a finding of permanent impairment or give a rating. A fifth doctor said there was no impairment. Permanent partial disability was not allowed based on agency expertise where these doctors who had seen the wound on several occasions declined to find impairment or give a rating, and deputy was not shown the wound or the pictures that were talked about in the exhibits. Page 1 before the iowa industrial commissioner _________________________________________________________________ : LARRY PITZER, : : Claimant, : : vs. : : File No. 766890 ROWLEY INTERSTATE, : : A P P E A L Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : _________________________________________________________________ STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding temporary total disability benefits and permanent partial disability benefits. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 6; and defendants' exhibit A. Both parties filed briefs on appeal. issues Claimant states the issues on appeal are claimant's entitlement to medical benefits; whether he is an odd-lot employee; and the extent of his disability. review of the evidence The arbitration decision filed October 23, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. applicable law The citations of law in the arbitration decision are appropriate to the issues and evidence. analysis The analysis of the evidence in conjunction with the law in the arbitration decision is adopted with the following additional analysis. Defendants informed claimant that his medical treatment by Dr. Galbraith at the pain clinic was unauthorized. Claimant proceeded to obtain the treatment. However, claimant was referred to Dr. Galbraith and the pain clinic by Dr. Schroeder, who was an authorized physician. Referral by an authorized physician to another physician constitutes authorization by the employer. Conte v. Heartland Lysine, Inc., Arbitration Decision, June 13, 1991. Defendants, by authorizing Dr. Schroeder, also authorized his referral to Dr. Galbraith. Defendants cannot, with the benefit of hindsight, pick and choose Page 2 whether they will authorize the medical course of action their authorized physician has chosen. Defendants can choose the physician, but defendants cannot interfere with the physician's professional judgment on what treatment modalities the physician determines to be appropriate. Wright v. Super 8 Lodge of Des Moines, Arbitration Decision, February 20, 1990. Claimant will be awarded medical benefits for the services of Dr. Galbraith and the Chronic Pain Management Program, Columbia Hospital, Milwaukee, Wisconsin. findings of fact 1. Claimant sustained an injury which arose out of and in the course of his employment on May 3, 1984 when he slipped while exiting a tractor-trailer he was driving for defendant employer. 2. Claimant has been under the care of numerous physicians, underwent a diskectomy of C4-5 in January of 1985, and in October of 1985 was found to have a bone spur on the left side at C4-5 for which he underwent a foraminotomy. 3. Claimant has sustained a permanent partial impairment as a result of the injury. 4. As a result of the injury, claimant's capacity to earn has been hampered. 5. Although released to return to work by numerous physicians on more than one occasion, claimant has not returned to work and his one attempt to return to work with defendant employer was unsuccessful. 6. Claimant has not sought employment since that time. 7. Claimant has not participated to his fullest capabilities in recovering from this injury and has not cooperated with medical and vocational personnel to overcome its effects. 8. As a result of the injury, claimant is not capable of returning to truck driving or to work which would require continual extension of the neck. 9. Claimant has expressed his desire not to return to work and not to retrain, but to have treatment. 10. Defendants have gone beyond the requirements of the law to provide treatment to claimant both medically and vocationally. 11. Claimant's condition reached a plateau on November 18, 1986. 12. Permanent partial disability benefits commenced November 19, 1986. 13. Penalty benefits are not appropriate in this case. 14. Claimant is not an odd-lot employee as claimant has not demonstrated that the services he can perform are so limited in quality, dependability and quantity that a reasonably stable labor market for them does not exist. 15. Claimant has sustained a permanent partial disability of 20 percent for industrial purposes entitling him to 100 weeks of permanent partial disability benefits. conclusions of law Claimant, as a result of the injury of May 3, 1984, has sustained a permanent partial disability of 20 percent for industrial purposes. Claimant has failed to establish a prima facie case he is an odd-lot employee. Page 3 Claimant has failed to establish an entitlement to any further medical benefits pursuant to Iowa Code section 85.27 at this time. The treatment provided by Dr. Galbraith is authorized. Claimant has failed to establish entitlement to penalty benefits under Iowa Code section 86.13. WHEREFORE, the decision of the deputy is affirmed and modified. order THEREFORE, it is ordered: That defendants shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of two hundred eighty-eight and 15/100 dollars ($288.15) per week commencing November 19, 1986. That defendants shall pay unto claimant one hundred thirty-two point eight five seven (132.857) weeks of healing period benefits at the stipulated rate of two hundred and 15/100 dollars ($288.15) per week for the period from May 3, 1984 up to and including November 18, 1986. That defendants shall pay the reasonable and necessary medical expenses of the Chronic Pain Management Clinic and Dr. Galbraith. That defendants shall receive full credit for all disability benefits previously paid. That payments which have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That the costs of this action are assessed against defendants including the cost of the transcription of the hearing proceeding. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave., Suite 111 Des Moines, Iowa 50312 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 2700 Filed September 24, 1991 BYRON K. ORTON DAD before the iowa industrial commissioner ____________________________________________________________ _____ : LARRY PITZER, : : Claimant, : : vs. : : File No. 766890 ROWLEY INTERSTATE, : : A P P E A L Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 2700 Short form affirmance of deputy's award of benefits, with modification to award medical bills for a pain management clinic denied by deputy. Claimant has been referred to the pain management clinic by an authorized physician. Referral by an authorized physician makes the referred physician authorized as well. Conte v. Heartland Lysine, Inc., Arbitration decision, June 13, 1991. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY PITZER, Claimant, File No. 766890 vs. A R B I T R A T I O N ROWLEY INTERSTATE, D E C I S I O N Employer, F I L E D and OCT 23 1989 HOME INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Larry Pitzer, claimant, against Rowley Interstate, employer, and Home Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury which arose out of and in the course of his employment on May 3, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner September 28, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Judy Pitzer, his wife, and Daniel Thompson, claimant's exhibits 1 through 6, inclusive, which are all admitted for their probative value, and defendants' exhibit A. ISSUES Pursuant to the prehearing report and order submitted and approved September 28, 1988, the following issues are presented for resolution: 1. The extent of claimant's entitlement to weekly benefits including temporary total disability/healing period benefits and permanent partial disability benefits; 2. The applicability of the odd-lot doctrine; 3. Claimant's entitlement to certain medical benefits pursuant to Iowa Code section 85.27; and 4. Claimant's entitlement to penalty benefits pursuant to Iowa Code section 86.13. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment on May 3, 1984, when he slipped while exiting the tractor-trailer he was driving for defendant employer. Claimant stated he experienced pain in his neck so severe he could not turn his neck and that his whole body hurt and ached for the next two weeks. Claimant testified that by the time he got home he was "so damn sick" he could "hardly walk." Claimant explained he was initially treated conservatively and with physical therapy and that in July of 1984, he was told by his treating physician (Dr. Cairns) to return to work and if he could not do the job to find something else to do. Claimant testified he wanted a second opinion and after seeing a Dr. Bogdanowicz on two occasions he was released to return to work in September 1984 with a 30 pound weight restriction. Claimant recalled he contacted defendant employer and that he was told he could not return to work there with a weight restriction. Claimant offered he then came under the care of Eugene E. Herzberger, M.D., who recommended surgery in December of 1984. Claimant stated that surgery did not provide any relief for him and that during the first six months thereafter the physical therapy that was prescribed "just about killed" him. Claimant stated that he had another CT scan and myelogram in June 1985 after which a growth was found and that in January of 1986, he underwent further surgery which again provided no relief from his symptoms in the neck and left arm. Claimant testified that before the second surgery he began experiencing depression which.affected his outlook on life and his personal relationships, and that in May of 1986, he went to one pain clinic and then another in October of 1987 in the hopes of getting some symptom relief. Claimant recalled that his weekly workers' compensation benefits ceased in May 1987 and that he had no other source of income until he began receiving social security benefits in May of 1988. Claimant explained he currently suffers from the same neck and left arm pain that he had at the time of his injury and that he cannot return to any of the work he could do before the injury. On cross-examination, claimant revealed that defendant employer offered him a position as a dispatcher which he worked at for approximately one week but left because of pain maintaining that "sitting there killed [him]." Claimant acknowledged that he did not attempt to find any other work after his release, that he may have refused to get into a conditioning program, that he did not discontinue physical therapy on his own, but that after one day he felt "forced to do more than" he should and that he "possibly" could have left weights given to him in an elevator after leaving therapy. Claimant admitted he had not followed up with any possible jobs, and that he has not attempted to get any retraining because he wanted treatment for his injuries, not work and not retraining. Claimant stated that since he is now receiving social security benefits, he is "not supposed" to look for work. Judy.Pitzer testified that prior to his injury claimant was even tempered, always provided for his family and was sure of his life, but that now claimant is worried about what he can and cannot do and takes everything to heart. Mrs. Pitzer stated that claimant cannot sleep at night as he is up two or three times during the course of the night, cannot put their daughter in his lap or hold her, and that the whole atmosphere at home is unhealthy. Daniel Thompson, of Madison, Wisconsin, identified himself as a rehabilitation counselor who has worked with the industrially injured and with cervical spine injuries. Mr. Thompson stated he became involved with claimant's case in September 1987 and reviewed claimant's medical, hospital, vocational rehabilitation, and psychological records. Mr. Thompson stated his first contact with claimant was by phone on October 6, 1987, when he requested claimant come to Madison for a psychological evaluation. Mr. Thompson recalled that claimant objected based on financial grounds but when Mr. Thompson offered to go to claimant's home, claimant stated that he would be in Madison around October 17 or 18 but would not agree to meet with Mr. Thompson at that time either. Mr. Thompson testified that on November 11, 1987, he sent claimant a release for records which claimant declined to provide on the basis that he "wanted to be fixed" and that he was afraid if he met with Thompson he would not be able to go to the pain doctor. Mr. Thompson described an "impasse" between claimant and vocational rehabilitation services, Mr. Thompson's company, at this time even though claimant's counsel encouraged claimant to meet with Mr. Thompson but to no avail. Mr. Thompson recalled cautioning claimant at that time that the treatment he sought at the pain clinic did not appear to be authorized. Mr. Thompson recalled that on December 3, 1987, he held a meeting with claimant and his counsel to discuss the rehabilitation process during which claimant expressed his feelings that he was physically incapable of working in gainful employment and that there was no point in placement in a low paying job. Mr. Thompson stated that the end result of this meeting was that he would meet with claimant in his home and take a survey of direct job placement prospects in Boscobel, claimant's home town. Mr. Thompson testified that the parties never arrived at a mutual goal with regard to claimant's future but that claimant did express some interest in his self-employment type of his rehabilitation plan. Mr. Thompson stated that claimant expressed no interest in on-the-job training and opined there was no reason to believe that defendant employer would not have re-employed claimant had the case arisen. On cross-examination, Mr. Thompson testified he had no doubt claimant's complaints of pain are real, that he cannot identify any specific jobs which were available to claimant in Boscobel (described by Mr. Thompson as a "difficult labor market") and that although the MMPI which claimant took corroborated the fact that claimant felt depressed, it "did not basically support claimant's position." Mr. Thompson opined that claimant has an unreasonable expectation of getting "fixed" and that claimant is angry because he is not perfect. Mr. Thompson could not identify any way to get beyond these feelings of claimant in order to return him to gainful employment. Medical records show claimant originally sought treatment for his injury from his family doctor, E. R. Randall, M.D., who diagnosed muscle spasm of the left shoulder. Claimant was also seen by R. Scott Cairns, M.D., who diagnosed "acute strain of the left shoulder with injury to posterior core to the brachial plexus," administered an orthopedic exam, a cervical myelogram, and a CT scan and concluded that the findings from those tests were consistent with a herniated nucleus pulposis at C4-C5 on the left. In consultation, claimant was seen by S. Rasmus, M.D., who recommended conservative treatment. On referral from Dr. Randall, claimant saw W. M. Bogdanowicz, M.D., in October 1984, with claimant expressing "a continuous complaint of pain in the area of his neck and, also, some pain in the left shoulder." (Claimant's Exhibit 1, page 71) Dr. Bogdanowicz recommended "I would prefer to take a more conservative posture and wait and see what happens. I advised Mr. Pitzer to go to work with limitation of heavy lifting to thirty pounds starting next Monday, October 8th. I feel that he should at least try and see what he can do when he works." (Cl. Ex. 1, p. 71) On December 4, 1984, claimant was evaluated by Eugene E. Herzberger, M.D., neurological surgeon, who opined that claimant "would benefit from a discectomy of C4-5 by an anterior approach associated with arthrodesis at the same level." Dr. Herzberger's notes reflect claimant originally rejected a surgical approach to the treatment of the herniated disc but ultimately underwent the procedure recommended on January 29, 1985. When next seen by Dr. Herzberger on May 1, 1985, claimant was noted to be doing "well" but with some complaints and on June 5, 1985, claimant was sent to physical therapy. Dr. Herzberger's notes of June 6, 1985 indicated claimant phoned expressing a desire to quit the physical therapy because it "makes him worse." Claimant was encouraged to continue but contacted the doctor's office again on June 11, 1985 to renew his desire to quit therapy "or get some pain pills." Claimant was provided some prescriptive medication and again encouraged to continue the therapy. When claimant failed to progress as expected, a new metrizmide myelogram and CT scan of the cervical spine were ordered which showed that "the defect at C4-5 on the left side is definitely a bone spur." Dr. Herzberger noted in October 1985 that there was no indication for any surgical treatment "as the pain is probably not related to the bone spur but most probably related to perineural fibrosis" and claimant was to be seen in the future on an "as needed" basis. Just prior to claimant beginning treatment with Dr. Herzberger he began working with Mary Ann Buck, R.N., of Professional Rehabilitation Management, Inc. In her original report dated October 19, 1984, Ms. Buck noted there were conflicting opinions concerning claimant's medical status and capability and recommended an independent medical exam, which is how claimant came under the care of Dr. Herzberger. Ms. Buck reported that during a conversation with claimant on November 2, 1984, claimant relayed problems with insomnia, nervousness, left arm numbness, and elevated blood pressure. Ms. Buck accompanied claimant on his visits to Dr. Herzberger's office, and noted that after the visit on January 14, 1985, when Dr. Herzberger indicated claimant could expect to return to work as a truck driver after surgery claimant became upset and said, "Nobody believed how hard he had to work as a truck driver and what had been expected of him." (Cl. Ex. 2, p. 139) Ms. Buck recorded her impression as "Since Larry became extremely agitated and talked about his employer and the demands made on him during the physician's visit, he may not desire to return to employment at Rowley Interstate, should he be medically able." (Cl. Ex. 2, p. 139) Ms. Buck continued to follow claimant's progress subsequent to his surgery and accompanied claimant on follow-up visits with Dr. Herzberger, noting in her report of May 1, 1985: 1. Since the accident, Larry has had some financial stresses which has caused him to be occasionally irritable. 2. Larry is recuperating as expected and has followed the physician's orders faithfully. Dr. Herzberger has increased Larry's activity level so he will be prepared to return to work as a truck driver in three months. 3. Larry seemed a little undecided as to whether he wishes to return to Rawley [sic] Interstate, and will give that issue further consideration. 4. Mr. Baumhover, employer, seemed pleased that Larry was recuperating and may be able to return as a driver in three months. (Cl. Ex. 2, p. 126) Ms. Buck reported that when she contacted claimant on May 29, 1985, claimant relayed that his "neck and left arm 'were not right'" and that claimant did not think he could do the type of activity associated with a work hardening program which had been approved by Dr. Herzberger. Claimant told Ms. Buck that "everyone was trying to push him out the door when he was not yet ready" (a complaint voiced repeatedly by both claimant and Mrs. Pitzer at hearing). Ms. Buck recorded her impressions in a report dated June 5, 1985 as: 1. The claimant was and remains, extremely cautious and resistant to any activity which causes him discomfort. He is pessimistic and constantly fears reinjury and a limited recovery. The claimant's attitude is persistently negative and may effect his actual recovery. 2. The claimant needs a great deal of support and encouragement as he always "fears the worse." He dwells on his condition and the situation he is in, because of his injury. 3. Dr. Herzberger personally explained to the claimant that therapy three times a week at Finley Hospital will benefit him and in no way be detrimental to his condition. Larry stated he would stop therapy if he feels too much pain, again dwelling on the negative possibilities rather than having a positive outlook. 4. There may be a delay in the claimant's return to work and there remains some doubt in my mind about his returning to Rawley [sic]. There may be an unconscious desire, by the claimant, to work for another employer. He has frequently commented that Rawley [sic] is not reasonable with their drivers. (Cl. Ex. 2, P. 122) Ms. Buck reported she contacted claimant's physical therapy at Finley Hospital after Dr. Herzberger's office called to relay that claimant had experienced a problem following through with his first physical therapist session. Ms. Buck summarized the conversation with the physical therapist as: I called to speak with Doug Crosby, Larry's physical therapist at Finley Hospital. As he was occupied with another patient, the assistant told me she was familiar with what had occurred regarding Larry and told me that Larry had objected to any and all of the therapy, complaining that he was being forced to do more than he thought he should. She told me that Larry was given weights to use during home therapy and those were found in the elevator when Larry left that day. On 6-7, 6-10 and 6-11-85, I made additional attempts to speak personally with Larry's therapist, but he was never available nor did he return my calls as was requested. (Cl. Ex. 2, p. 116) Ms. Buck reported claimant was to "take it easy" and a follow-up appointment with Dr. Herzberger was set for July 26, 1985. In July 1985, claimant's file at Professional Rehabilitation Management, Inc., was transferred to Jane M. Collentine, R.N., who reported that Mary Ann Buck was no longer with the firm. Ms. Collentine accompanied claimant to his follow-up appointment with Dr. Herzberger on August 12, 1985, during which claimant expressed a willingness to continue physical therapy at Boscobel Hospital, and in a report dated August 29, 1985, Ms. Collentine wrote that claimant was cooperating in the Boscobel physical therapy program, that his attendance was excellent, that he was able to tolerate the physical therapy well, and that he was trying to be more active. In a report dated October 18, 1985, Ms. Collentine reported her impression as: 1. The physician is not willing to sign a work release at this time. He is attempting to force the claimant to think about returning to work and has discontinued physical therapy. 2. The claimant is not interested in returning to his former employer as he feels he is physically unable to do the work expected of him. 3. The claimant has made positive plans to go to the vocational office and has been looking at the want ads. PRM vocational interveniton [sic] may be a future consideration and should be discussed with the customer. 4. At the time of the appointment on 10-9 at Dr. Herzburger's [sic], Larry had referred to the fact that he might be selling some land for a wild life sanctuary. It is unknown if the business venture he mentioned on 10-18 is related to this. (Cl. Ex. 2, p. 102) Much concern was expressed in Ms. Collentine's report of November 6, 1985 over her failure to secure claimant's release to return to work from Dr. Herzberger and as a consequence thereof, Ms. Collentine made a tentative appointment at the University of Wisconsin's neurosurgery department with Dr. Allan Levin. A return-to-work slip from Dr. Herzberger dated November 8, 1985, sent to Ms. Collentine, reflects that claimant could return to work in the "near future" with "no heavy lifting,.excessive bending or stretching, heavy pulling or pushing." Dr. Herzberger did release claimant to return to work as a truck dispatcher sometime thereafter when Ms. Collentine advised Dr. Herzberger that claimant had been offered such a position. According to Ms. Collentine's report of December 12, 1985, on November 14, 1985 claimant was instructed to contact defendant employer to make arrangements to begin employment that weekend as a weekend dispatcher but that claimant had not called defendant employer until the following Monday (November 18) and that claimant had advised the company he would not be able to return to work until after he had been seen at the Gunderson Clinic. Defendants had not authorize such an appointment and, at the direction of Greg Goodwin, of defendant insurance company, Ms. Collentine cancelled claimant's appointment for November 25, 1985. Claimant did return to work and Ms. Collentine reported: On 12-9-85, I also talked with Larry....Larry explained that he had been working continuously from Wednesday of the previous week. This would be five continuous days at an eight hour day. On the weekend he did just dispatching, but on the other days, he was asked to be a file clerk in the office. He had no objections to that, as a matter of fact, he said that he was enjoying it, but it did not cause discomfort with his left arm. He stated he had been unable to sleep since working and that "it is killing me." Larry added that he was working for $5.00 an hour, and had no idea how his family would manage on that income. (Cl. Ex. 2, P. 87) Ms. Collentine accompanied claimant on his appointment with Dr. Levin December 11, 1985 and reported Dr. Levin's observations as: 1) there may be some degenerative changes within that disc at C4-5, 2) the spur that is noted in the medical records which remained in myelogram three months after the surgery of January, 1985, continues to be there and needs to be removed, 3) the claimant has maximal discomfort in his left shoulder and left arm. This most likely is related to the bone spur and mild displacement of the C4-5 disc. There is no bulging, but there is a disc formation at the old operative area; 4) some of the claimant's physiological complaints do not "fit." He explained that the claimant has been in pain for nearly one year, and perhaps that is why he over-demonstrates some physical complaints; 5) there is a change in the left arm. The neurological tests are unusual. (Cl. Ex. 2, p. 88) On Dr. Levin's recommendation, Claimant underwent a posterior left C4-5 semi-hemilaminectomy and foramenotomy on the left C-5 root on January 14, 1986. Dr. Levin saw claimant on follow-up February 12, 1986 and indicated at that time that claimant stated his left arm pain was 50 percent better but that he continued to have left shoulder pain. It was recommended that claimant start a progressive exercise program for his left arm and claimant began physical therapy sessions at Boscobel Hospital. Claimant returned to see Dr. Levin in a follow-up visit on April 9, 1986, at which time claimant was released to return to work with a cervical collar on and maximum lifting of 10 to 15 pounds. Ms. Collentine accompanied claimant to this appointment and, after claimant had the opportunity to see Dr. Levin privately, was called into the room by claimant. Ms. Collentine reported what transpired as: Dr. Levin made the statement that the claimant was doing very well and that he had successfully reached a period of being 3 months post operative with very little, if any, neck pain and some arm pain. He felt that the arm pain was related to a nerve entrapment which was not related to this worker's compensation case. He stated that 3 times and added that the nerve entrapment is related to the ulnar nerve which radiates down his lower left arm and makes a pain or numbness in the little finger of his left hand. The physician stated that somehow the claimant had developed this problem and that it had not been evident on their initial evaluation in December of 1985. Dr. Levin used this comment in saying again, that this development was not related to the original injury or his past surgery and that it was a new development. He stated he would have to go to some other doctor for this problem and at best would receive an E.M.G. to help diagnose the situation. The physician stated that the claimant had reached maximum healing and that was a customary time table after 3 months from the procedure that was performed on the claimant. When I asked Dr. Levin if the claimant could return to work and I attempted to discuss the job description, the physician stated that he did not know about handling this and asked if this arrangement could be handled between the claimant and myself. I stated no, that the physician must make this decision and I had talked with his employer who will reinstate Larry In [sic] light duty job. After carefully reviewing the information in the work analysis, Dr. Levin felt that the claimant could return to work if he wore a cervical collar and felt that the driving should not be a problem to Larry. He completed a return to work release for the claimant.... At this time, the claimant was talking very loudly to the physician and said "I cannot return to work, I have little children to feed, I cannot drive that far, you cannot do this to me", and other comments. At one point, the claimant slapped Dr. Levin's leg and the physician stated that the claimant could not come in here and yell at him. The physician wrote an order for a cervical collar and the claimant was instructed to go to the lower part of the clinic to the brace shop to receive it. I had the return to work statement copies for the claimant and as I was handing it to him, he stated "I have 30 days to go back to work, don't I"? I stated that I had not heard of that rule, and his employer would be contacting him probably within the next 5 to 7 days. (Cl. Ex. 2, pp. 59-60) After consultation with defendant insurance carrier, Ms. Collentine noted it was decided on May 7, 1986 that no further activity would be generated in claimant's case at that time and a target date of August 1986 was set to close the file. On May 9, 1986, Dr. Levin noted claimant was referred to the pain clinic at University Hospital (Wisconsin) for evaluation and management of persistent neck pain. After claimant's first visit to the pain clinic on June 10, 1986, Marvin J. Hoffert, M.D., assistant professor of the department of neurology, recorded his impression as: By history and physical examination this patient appears to have a post traumatic left C5 radiculopathy. After two failed surgical procedures it is unlikely that there is much more to offer this patient for that problem. However, he does appear to be clinically depressed and also appears to have a myofascial syndrome, both of which are contributing no doubt to his pain complaint. Since these problems are more amenable to treatment, they will be approached vigorously. (Cl. Ex. 1, p. 28) Dr. Hoffert recommended physical therapy, medication and a return follow-up visit in one month. In July, Dr. Hoffert increased claimant's medication, administered trigger injections on the "left and right of C6 level paraspinous musculature" and claimant was to return to the clinic in another month. At the August appointment, claimant reported that "on amitriptyline 200 mg qHS, he experiences some confusion and occasional hallucinations. He has felt that there are people in the room and has attempted to urinate on the wall. He is concerned about these side effects and would like to decrease his medication." (Cl. Ex. 1, p. 21) The medication was decreased, physical therapy was continued and claimant was to return to the clinic in another month. On September 9, 1986, Dr. Hoffert reported: The patient reports that he is now involved in an exercise program involving vigorous isometrics and exercises with four pound weights. When he does those exercises, his muscles hurt all over and he feels in general he has gone a step backwards in his level of comfort. Regarding depression, the patient has reduced his amitriptyline to 150 mg qHS and no longer has hallucinations and is still able to sleep well. Physical examination shows normal tone in the muscles previously abnormal, but with some tenderness to palpation of the low cervical paraspinous muscles bilaterally. ASSESSMENT: Despite the patient's complaints, his physical examination suggests progress. However, his exercises are probably too vigorous for him at this point and need to be slacked back. (Cl. Ex. 1, p. 20) On November 18, 1986, Dr. Hoffert referred claimant to the "physical capacity clinic for physical capacity assessment and vocational counseling" finding this "reasonable" because of claimant's "concern about his future and his plateau in treatment." Claimant was advised to return to the clinic on a "PRN" basis. Dr. Hoffert referred claimant to Professional Rehabilitation Services, Ltd., for a physical capacities evaluation "relative to a neck injury...sustained in May 1984 while on the job" and the same was done December 8, 1986 by James Agre, M.D. Dr. Agre rendered a diagnosis of "chronic neck pain and some radicular pain of the C5 nerve root on the left. He also has some problems with anxiety," opined that the injury as described, "could well have lead to a herniated cervical disc and subsequential problems," and concluded that: Using the Wisconsin Administrative code for Workers Compensation and also using the AMA guidelines for evaluation of permanent partial disability, Mr. Pitzer has a 10% disability due to chronic cervical pain. This takes into account decreased range of motion, decreased strength, and chronic pain in the neck and left upper extremity. (Cl. Ex. 2, pp. 36-37) Dr. Agre found that during an eight hour workday claimant could sit, stand and walk, each one hour at a time and a total of six hours; that claimant could continuously lift, carry and push or pull one to four pounds, occasionally five to ten pounds; that claimant could frequently bend, squat and reach above shoulder level using the right extremity, occasionally climb and never crawl; and that claimant could not drive automotive equipment or be exposed to dust fumes and gases. On March 15, 1987, Jane Collentine reported: "A request for vocational rehabilitation has been obtained. At this time, further medical management intervention would not appear to be warranted" and closed her file. Defendants referred claimant to Betsy Marion Hovde, M.S., vocational rehabilitation counselor with Professional Rehabilitation Services, Ltd., for a "vocational evaluation to determine considerations for vocational rehabilitation." Ms. Hovde summarized her April 20, 1987 assessment as: He seemed motivated to do well on testing and was very interested in getting back to work. He expressed a great deal of frustration at his current situation, vocationally, socially, financially, and physically. Mr. Pitzer indicates that he is extremely interested in returning to work. He reported that his wife currently does not work and they share in the care of their two young children. He expressed a desire to return to the role of the "bread-winner" and expressed feelings of frustration with his current financial situation. He indicated that the wages received would be very important to him and he feels that an acceptable wage would be $8.00 an hour. .... In order for Mr. Pitzer to return to gainful employment, he will need to find or design a job which will meet his restrictions. Preferably, the job should fall into the sedentary work category which may be defined as: lifting 10 pounds maximum and occasionally lifting and/or carrying such articles as dockets, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required only occasionally and other sedentary criteria are met. The job would need to allow Mr. Pitzer the flexibility to change positions frequently, as he is unable to maintain one position longer than a one-hour period (from the physical capacities restrictions indicated by Dr. James Agre). The job could not require proficient finger and manual dexterity as Mr. Pitzer is extremely limited in these areas. ...In order for Mr. Pitzer to receive vocational training in a new field, he would first need to obtain his GED. Such could likely be obtained within a relatively short period of time. Also, on-the-job training would be an alternative method for Mr. Pitzer to gain new vocational skills. Such can be arranged via a vocational rehabilitation agency. (Cl. Ex. 2, pp. 21-22) Ms. Hovde recommended: There are a number of vocational possibilities available to Mr. Pitzer. In order that he might maximize his potential, I would recommend that he engage in vocational rehabilitation counseling. The focus of the counseling would be upon developing the vocational assets identified in this evaluation, matching such assets with occupational opportunities, providing training (if indicated), developing job opportunities, providing job-seeking skills assistance, arranging on-the-job training (if indicated) and providing follow-up services to insure successful vocational adjustment. A vocational rehabilitation counselor could provide, coordinate, and expedite such services. (Cl. Ex. 2, pp. 22-23) Ms. Hovde met again with claimant on May 29, 1987 to discuss "vocational rehabilitation possibilities." In a letter to defendant' counsel dated June 18, 1987, Ms. Hovde reported that although claimant was "extremely unhappy with his situation," claimant was not "yet to the point of considering alternative vocational scenarios" and that he "dismissed as unfeasible" every possibility which was suggested to him. Ms. Hovde opined that given claimant's responses to vocational rehabilitation alternatives, "prognosis for successful rehabilitation is guarded" and recommended a three step plan toward returning claimant to work, including return-to-work possibilities with defendant employer (with work hardening, vehicle adaptation, psychological counseling and relocation as intervening steps), exploring return to work with another employer and exploring retraining possibilities. Claimant returned to the University of Wisconsin Hospitals and Clinics Multidisciplinary Pain Clinic on October 20, 1987. Mark E. Schroeder, M.D., claimant's "pain manager" reported: It was the consensus of the Pain Conference that Mr. Pitzer would benefit from an inpatient pain management program. In light of our belief that his neck is structurally sound and he is at low risk for further neurologic damage, we believe that the appropriate rehabilitation of his neck and shoulder muscles should be undertaken in such an inpatient setting. I recommended to Mr. Pitzer the program at the University of Wisconsin Hospital and Clinics directed by Dr. James Agre or a program at Mercy Hospital in Des Moines, Iowa, under the direction of Dr. Blessing. I discussed financial considerations with the patient and indicated that since this was a work related accident that the cost of these programs are often borne by Worker's [sic] Compensation. Mr. Pitzer has retained a lawyer and he will receive copies of these Pain Clinic records to aid him in obtaining appropriate funding for the inpatient pain management program. (Cl. Ex. 1, p. 12) Dr. Schroeder opined that claimant was not able to work and would remain incapacitated until "he is treated in an inpatient pain management program." In September of 1987, claimant's case at Professional Rehabilitation Services, Ltd., was transferred from Ms. Hovde to Dan Thompson, M.S., CRC, (whose oral testimony was reported earlier in this decision). Mr. Thompson summarized his opinions in a report dated November 11, 1987 as: I believe at this point in time that there is very little more that I can do unless somebody can talk this gentleman into proceeding with rehabilitation. I might add that if the physical capacities evaluation that was generated in December of 1986 is relatively correct at this point in time, Mr. Pitzer is not only precluded from any occupation that he previously engaged in including truck driving, but it will also take an employment site that allows for maximum flexibility. He is technically only allowed to sit, stand, and walk for one hour at a time so it would have to be a position where he could vary his activities tremendously. In reviewing his aptitude scores, the GATB indicates that he is at the 26th percentile in general learning ability which would make it difficult for him to succeed in any type of formal or sophisticated training program. It should be pointed out that Mr. Pitzer has been polite and very straight-forward with this counselor It would appear in our discussions he has a great deal of anger and despair but he hasn't directed any of it at this counselor. Finally, Larry indicates that he would like to go to Milwaukee to a pain center, of three to six weeks in duration, and his last comment to me was that he would wait to hear about the scheduling. In other words, Larry wasn't going to try to schedule himself, he didn't know if the insurance company even wanted him to go to it, and he would suspect that they would not get him in until after the Christmas holidays. All of this certainly creates difficulties in pursuing vocational rehabilitation but unless he begins to feel differently, I don't know that I will be able to provide much in the way of services at this time. As a final note, since Mr. Pitzer was injured while in the employ of a Dubuque firm, I believe this is actually the primary labor market to address. It would be important however to address both Mr. Pitzer's current physical capacities and depression before beginning any full scale labor market activity. (Cl. Ex. 2, p. 10) Subsequent reports generated by Mr. Thompson in December of 1987 and May of 1988, as well as his testimony given at hearing, do not reveal any alteration in his opinions of claimant's situation. Claimant was referred to the Chronic Pain Management Program, John R. Galbraith, Ph.D., Co-Director, in March 1988, by Dr. Mark Schroeder. Dr. Galbraith recorded his impression as "Chronic pain syndrome in a patient with mild to moderate personality factors (somatization and depression), possible psychophysiologic hyperresponsiveness and minor financial operants secondary to depression" (Cl. Ex. 1, p. 4), and opined "We agree that he is a very appropriate candidate for our program and the probability of successful rehabilitation is high. It is our opinion that this treatment is necessary either directly or indirectly because of the injury he sustained on May 3, 1984 and because of the subsequent treatments and inactivity." (Cl. Ex. 1, p. 4) On request of defendants, claimant was seen by Bruce W. Davey, M.D., orthopedic surgeon, for an independent medical examination. Dr. Davey, who saw claimant on August 9, 1988, reported that he reviewed medical records and x-ray studies provided to him prior to the examination. Dr. Davey concluded: Physical examination revealed an obese middle-aged male who was not in any acute distress during the examination. Examination of the cervical spine revealed a normal curvature. He appeared to have almost full range of motion of the neck considering the large size of his neck. There were complaints of discomfort with full extension of the neck. The foraminal compression test was negative. Examination of the cervical spine did not reveal any specific tenderness or muscle spasm. The left shoulder had full range of motion with no crepitance. There was no muscle spasm in the trapezius area. The arms and forearms were measured circumferentially with the arms being equal right and left. There was one-half inch of atrophy of the left forearm as compared with the right. Sensory testing revealed hypesthesia primarily on the anterior and lateral aspect of the left arm but no significant difference in the forearms or hands. There was no specific tenderness in the ulnar groove on the medial aspect of the elbow. Reflex examination revealed 2+ biceps, triceps, and brachial radialus reflexes. Motor examination was done but was somewhat difficult to evaluate due to the giving way phenomenon. I think that he may have some mild weakness of the biceps and perhaps the triceps on the left as compared with the right arm. I do not feel that the examination of strength was reliable enough to weight [sic] heavily in my decision. I reviewed the CT scans, myelograms, and cervical spine films available to me. I concur that the patient appears to have a soft tissue extradural density at the C4-5 level on the left in July of 1984. I believe this is most consistent with a herniated disc. I feel that the treatment offered at that time was appropriate even though the patient did not gain any significant relief. His later studies revealed persistence of the defect along with a rather large spur encroaching upon the C4-5 foramen on the left. Again, I feel that the posterior approach with foraminotomy was appropriate given the patients [sic] findings and complaints. I feel that it is most likely that Mr. Pitzner [sic] sustained a ruptured cervical disc as a result of the incident in May of 1984. The bone spur which was diagnosed on later films was a pre-existing condition as was the degeneration of the disc space at the C4-5 level. It is my opinion that a permanent partial impairment of the cervical spine due to the herniated disc and subsequent surgeries is a reasonable estimate of Mr. Pitzner's [sic] impairment. I feel that Mr. Pitzner's [sic] continuing care should be concerned with exercises to strengthen his neck musculature. I feel that Mr. Pitzner [sic] might benefit from a pain clinic but it is also my feeling that he would probably benefit more from a rehabilitation program which would prepare him for lighter work. I certainly feel that he could return to gainful employment although I do not feel that truck driving or any activity that requires continual extension of the neck would be tolerated very well. Due to the strain on the neck muscles with lifting, I feel that a fifty pound lifting restriction will probably be required. (Cl. Ex. 1, pp. 2-3) APPLICABLE LAW AND ANALYSIS 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). There is no dispute among the parties that claimant sustained an injury arising out of and in the course of his employment or that the injury is the cause of both temporary and permanent disability. The central issue in this case is the extent of claimant's entitlement to those benefits. This has been a most difficult case for, as much as the undersigned might believe claimant is in pain, there is also a belief that claimant has magnified, exaggerated, and multiplied his symptoms for the purposes of monetary gain. Consequently, the process of sorting through the truth and the magnification has caused significant doubt in the mind of the undersigned. An overall review of the evidence leads the undersigned to the following observations: 1. Claimant appears,to cooperate with medical and rehabilitative personnel until a return to work is mentioned. Claimant then becomes upset and expresses an increase in his symptomatology. 2. Claimant does not appear to have participated to his fullest capabilities in recovering from his injury. Claimant seems not to understand or not willing to understand the importance of his own cooperation. 3. Claimant's demeanor at hearing, as well as his attitude throughout this case, does not instill confidence in his credibility. Claimant directly refused to look at defendants' counsel or any of defendants' witnesses while they were testifying. Claimant groaned, sobbed, and expressed through his actions contempt toward defendants and defendants' witnesses. The undersigned could not see that any of those emotions were expressed by defendants toward claimant either through direct testimony or through their reports admitted as exhibits. The undersigned would agree that claimant has a fixation on "getting fixed" rather than getting over the hurdle of being injured, albeit a serious injury. Claimant appears to have been feeling persecuted by his expressions of being "kicked out the door." Defendants are clearly liable for the ramifications of the injury but that is the extent of their liability. Claimant appears to be imposing all of his frustrations with facets of his life on this injury. For example, claimant professes to have been close to his brother but maintains that he is suffering from no sense of loss or depression as a result of his brother's death. Claimant testified that you grieve and then you get over it. Claimant's attitudes appear to be extremely inconsistent. 4. Claimant, when presented with a new medical or vocational worker, presents to that person a cooperative attitude upon commencing contact but fails to follow through with his cooperation until each person comes to an "impasse" in trying to deal with claimant. 5. It is the belief of the undersigned that claimant does not truly wish to return to work. Claimant was released to return to work by more than one physician on more than one occasion but essentially refuses to heed any advice with which he might disagree. Even on the one occasion where claimant attempted to return to work, claimant delayed in contacting the employer. Claimant, even though presented with numerous opportunities to do so, would not assist vocational rehabilitation professionals with a rehabilitation plan. Claimant found no sense in seeking work for less wages than he was earning and now that he is receiving social security benefits maintains he is "not supposed to" look for work. The undersigned cannot agree with such a position. 6. Physicians agree that some of claimant's physiological complaints do not fit, that not all of claimant's complaints are causally connected to the injury, and that claimant overdemonstrates his asserted condition. It must be remembered that doctors have opined claimant's neck is structurally sound and that claimant is not at risk for further neurological damage. Claimant's complaints are essentially subjective. Because it is believed that claimant has overexaggerated and multiplied his symptoms and that the physicians' opinions are based on these subjective complaints of claimant, the physicians' opinions are somewhat suspect as to their validity. Claimant first asserts that he is an odd-lot employee as contemplated by Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee V. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). The greater weight of evidence would establish that claimant has failed to demonstrate that the services he can perform are so limited in quality, dependability or quantity that a reasonably stable labor market for them does not exist. This is particularly true where claimant has failed to seek any employment since his injury. Although claimant asserts he is incapable of working, he has not tried to do so since one attempt early after the injury. Claimant has been, on more than one occasion, released to return to work and failed to do so. As will be discussed below, claimant may be prohibited from driving a truck but that does not directly lead to the conclusion that claimant is not employable. Therefore, claimant has failed to establish he is an odd-lot employee pursuant to Guyton, 373 N.W.2d 101. Claimant has, however, suffered a permanent impairment as a result of his injury and his capacity to earn has clearly been hamper. 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant, age 46, has essentially earned his living as a laborer and truck driver. Even taking the most liberal restrictions imposed by physicians who have seen claimant (keeping in mind that those opinions are viewed by the undersigned as questionable in light of their basis laying in what claimant has told them), claimant, as a result of the injury, is not capable of returning to truck driving or to any work which would require continual extension of the neck. Claimant has restrictions on his employability which precludes him from engaging in much of the work for which he is fitted. Claimant makes much of the fact that Boscobel, his home town, is a difficult labor market. However, the industrial commissioner has held that a disability which may result from the state of the economy is not compensable under the Iowa Worker's Compensation laws. See Webb v. Lovejoy Construction Company, II Iowa Industrial Report 430 (Appeal Decision 1981). Claimant did not graduate from high school. It is unclear in the record whether or not claimant has obtained his GED. However, claimant does not appear to the undersigned to suffer from any lack of intellectual ability which leads to the conclusion that claimant could be retrained for other employment if he would elect to do so or if he would have the requisite motivation. Claimant repeatedly stated during the hearing that he did not want work and did not want retraining. Claimant testified he wanted treatment. The undersigned would conclude claimant has had treatment, and that defendants have gone beyond the requirements of the law to treat claimant both medically and vocationally. Iowa Code section 85.34(2)(u) provides: In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs "all through "t" hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole. Considering then all of the elements of industrial disability, it is determined that claimant has sustained a permanent partial disability of 20 percent for industrial purposes entitling him to 100 weeks of permanent partial disability benefits. Iowa Code section 85.27 provides: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical, rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. Medical records establish that on June 10, 1986, when claimant was referred to Dr. Hoffert, it was reported that "it is unlikely there is much more to offer claimant" for treatment of his problem. In November 1986, after pain clinic treatment, Dr. Hoffert indicated that claimant's treatment had reached a "plateau." Claimant has not demonstrated any further recovery since that time and the record does not establish that any further treatment for the care of his injury is necessary at this time. Consequently, it is determined that the care provided by Dr. Galbraith was unauthorized and defendants will not be ordered to be liable therefor. Claimant acknowledged that he was informed that the care provided by Dr. Galbraith would not be authorized. Claimant had the option, at that point, to seek relief by the Iowa Industrial Commissioner. Such relief was not sought. Claimant elected to proceed to his detriment. The recommendations made by Dr. Galbraith involved the same modalities which were engaged to assist claimant by Dr. Hoffert. It appears to the undersigned that claimant had the same attitude toward this treatment as he had toward previous treatment. Claimant has had the opportunity for pain clinic treatment previously. It is not shown that claimant demonstrated any improvement in his condition as a result of that treatment. It appears to the undersigned as it appeared to vocational rehabilitation experts and the physicians involved in the case that claimant would benefit more from vocational rehabilitation rather than pain clinic management. Claimant has rejected the vocational treatment. Further pain clinic treatment will not be ordered. In light of the above, it is concluded that claimant's healing period, pursuant to Iowa Code section 85.34(1) ended November 18, 1986 and permanent partial disability benefits shall commence November 19, 1986. Iowa Code section 86.13 provides: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. The final issue for resolution is claimant's request for penalty benefits. Claimant would submit that defendants should not escape liability for penalty benefits by only paying to the extent of permanent partial impairment and argues that defendants failed to consider the elements of industrial disability in its payment of permanent partial disability benefits. While it is true that claimant has been found to have sustained an industrial disability which exceeds the 10 percent paid by defendants, industrial disability can be less than, greater than or equal to functional impairment. Birmingham v. Firestone Tire & Rubber Company, II Iowa Industrial Commissioner Report 39 (Appeal Decision 1981). Iowa Code section 86.13 refers to a delay in the commencement of or termination of benefits without reasonable or probable cause or excuse. It does not allow penalty benefits when one party is dissatisfied with the amount of money that was voluntarily paid. This is particularly true when, under the.Iowa Workers' Compensation laws, defendants are not entitled to recoup any amount of overpayment from the claimant. It cannot be concluded, based on the evidence presented that defendants delayed the commencement or terminated claimant's benefits without reasonable or probable cause or excuse. The undersigned is not vested with equitable powers. Accordingly, no penalty benefits will be awarded in this case. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following ultimate findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of his employment on May 3, 1984, when he slipped while exiting a tractor-trailer he was driving for defendant employer. 2. Claimant has been under the care of numerous physicians, underwent a discectomy of C4-5 in January of 1985, and in October of 1985 was found to have a bone spur on the left side at C4-5 for which he underwent a foraminotomy. 3. Claimant has sustained a permanent partial impairment as a result of the injury. 4. As a result of the injury, claimant's capacity to earn has been hampered. 5. Claimant's credibility is questionable. 6. Although released to return to work by numerous physicians on more than one occasion, claimant has not returned to work and his one attempt to return to work with defendant employer was unsuccessful. 7. Claimant has not sought employment since that time. 8. Claimant has not participated to his fullest capabilities in recovering from this injury and has not cooperated with medical and vocational personnel to overcome its effects. 9. As a result of the injury, claimant is not capable of returning to truck driving or to work which would require continual extension of the neck. 10. Claimant has expressed his desire not to return to work and not to retrain, but to have treatment. 11. Defendants have gone beyond the requirements of the law to provide treatment to claimant both medically and vocationally. 12. Claimant's condition reached a "plateau on November 18, 1986. 13. Permanent partial disability benefits commence November 19, 1986. 14. Penalty benefits are not appropriate in this case. 15. Claimant is not an odd-lot employee as claimant has not demonstrated that the services he can perform are so limited in quality, dependability and quantity that a reasonably stable labor market for them does not exist. 16. Claimant has sustained a permanent partial disability of 20 percent for industrial purposes entitling him to 100 weeks of permanent partial disability benefits. 17. Claimant has not shown that any further treatment for the care of his injury is necessary at this time. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant, as a result of the injury of May 3, 1984, has sustained a permanent partial disability of 20 percent for industrial purposes. 2. Claimant has failed to establish a prima facie case he is an odd-lot employee. 3. Claimant has failed to establish an entitlement to any further medical benefits pursuant to Iowa Code section 85.27 at this time. 4. The treatment provided by Dr. Galbraith is unauthorized. 5. Claimant.has failed to establish entitlement to penalty benefits under Iowa Code section 86.13. ORDER THEREFORE, it is ordered: Defendants shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of two hundred eighty-eight and 15/100 dollars ($288.15) per week commencing November 19, 1986. Defendants shall pay until claimant one hundred thirty-two point eight five seven (132.857) weeks of healing period benefits at the stipulated rate of two hundred eighty-eight and 15/100 dollars ($288.15) for the period from May 3, 1984 up to and including November 18, 1986. Defendants shall receive full credit for all disability benefits previously paid. Payments which have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 23rd day of October, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Dennis L Hanssen Attorney at Law Terrace Center, Ste 111 2700 Grand Ave Des Moines IA 50312 Ms. Dorothy L Kelley Attorney at Law 500 Liberty Bldg Des Moines IA 50309 5-1803 Filed October 23, 1989 DEBORAH A. DUBIK BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY PITZER, Claimant, File No. 766890 vs. ROWLEY INTERSTATE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1803 Claimant awarded 20 percent industrial disability for a shoulder/cervical injury. Significant problems with claimant's credibility, motivation and veracity were evident throughout the record.