BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY J. BEARCE, Claimant, File No. 782809 vs. A P P E A L FMC CORPORATION, D E C I S I O N Employer, Self-Insured, F I L E D Defendant. MAR 17 1989 IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on August 31, 1984. Defendant cross-appeals. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 11; claimant's exhibits A, B, and C; and defendant's exhibits 1 and 2. Both parties filed briefs on appeal. Claimant filed a reply brief. ISSUES Claimant states the following issues on appeal: I. The Deputy erred in reducing the claimant's industrial disability by use of apportionment relating to a pre-existing condition. II. The Deputy was in error in establishing the claimant's industrial disability at ten percent. III. Application of the Odd-Lot Doctrine. Defendant states the following additional issue on cross-appeal: I. Did the deputy err in awarding healing period benefits to October 22, 1986 when Claimant's treating doctor released him from treatment on May 22, 1985 and issued a disability rating? REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally set forth herein. Briefly stated, claimant worked for defendant FMC from 1968 until October 1984, in various capacities, including overhead crane operator and lathe operator. Claimant's duties required him to perform repetitive lifting, bending, twisting, stooping, and prolonged standing. In 1977 claimant was involved in a car accident which resulted in physician imposed restrictions, but these restrictions were later removed. Claimant experienced low back pain, neck, and shoulder pain following his prior car accident, in which he was struck from the rear. As a result of that accident, claimant was referred by his family doctor to William J. Robb, M.D., an orthopedic surgeon, and Earl Y. Bickel, M.D. Claimant underwent a myelogram in December 1978, by Eugene E. Herzberger, M.D., which revealed mild problems at the L4-5 level. When claimant continued to be unable to return to work, he was referred to a low back institute and was treated by Alexander Lifson, M.D., an orthopedic surgeon. Claimant then underwent a decompression laminectomy in the low back in May of 1980. Dr. Lifson rated claimant's permanent physical impairment after the surgery as 20 percent to the lumbar spine as a result of the automobile accident. Claimant was also given permanent restrictions of only occasional bending, squatting, crawling, climbing, reaching above the shoulder, kneeling, and lifting not more than 25 pounds. Claimant was also diagnosed in 1981 as having chronic pain syndrome following a MMPI psychological test. In March of 1981, claimant was placed on light duty work at FMC. In March of 1982, claimant struck his head on a gear box at work and injured his neck. Claimant was treated for cervical strain by James R. LaMorgese, M.D. Claimant's position was eliminated and claimant was laid off in June of 1982. Claimant testified that he worked on improving his physical condition and received a release from his family doctor stating "all previous weight lifting restrictions have been discontinued. His activities are at his discretion." Claimant thereafter returned to his former job as drill press operator and worked for approximately 11 months before the injury of August 31, 1984. On August 31, 1984, claimant was working as a drill press operator. Claimant was walking backwards and tripped on a skid, falling backwards. Claimant caught himself by grasping the control box he was operating. Claimant testified he twisted his back in doing so, and felt an immediate onset of low back pain that persisted through the weekend, which was Labor Day weekend. Upon returning to work, claimant again experienced pain and reported this to the plant nurse. Claimant stated that two supervisors witnessed the incident. However, the record showed that one of the supervisors denied witnessing the incident and the other characterized the incident as minor. Claimant also operated his own monument business, and on the Monday holiday following the Friday injury, claimant used a pry bar to lift a monument and placed planks weighing 50 to 60 pounds to unload a small skid loader. Claimant stated in his deposition that he did not have any pain while working on the monument, but later stated in his deposition that he had a burning sensation all through the weekend. Claimant was treated by William R. Basler, M.D., on September 4, 1984. Dr. Basler diagnosed muscle strain, and referred claimant to James R. LaMorgese, M.D., a neurosurgeon, who had previously treated claimant for low back and neck pain. Claimant reported low back pain radiating into his legs and feet to Dr. LaMorgese. Claimant also told Dr. LaMorgese that he did not have pain over the Labor Day weekend. Dr. LaMorgese placed claimant on light duty, and claimant performed light duty for FMC for five weeks until being laid off because of the lack of light duty work. Claimant was referred to Martin Roach, M.D. Dr. Roach recommended that claimant not return to repetitive work. Dr. LaMorgese also referred claimant to Dr. Lifson again, and Dr. Lifson performed surgery on claimant. Claimant's complaints at this time were headaches, neck pain, mid-back pain and lower back pain. CT scans revealed no new developments since 1980. Claimant also utilized a TENS unit. On May 22, 1985, Dr. Lifson opined that claimant's condition remained unchanged. In August of 1985, claimant consulted John R. Walker, M.D., an orthopedic surgeon. Dr. Walker opined that claimant's low back condition was caused by scarring from his previous injury, and from the August 31, 1984 back strain at work. Dr. Walker recommended fusion surgery. Claimant then sought a second opinion from Earl Bickel, M.D., who recommended that a back brace be attempted prior to surgery. Claimant underwent surgery by Dr. Walker in August, 1985. Claimant testified that the surgery reduced his lower back pain but did not eliminate it. Dr. Walker stated that claimant reached maximum healing from the surgery on October 22, 1986. However, Dr. Walker felt that claimant still had signs of disc rupture at the C-5 level and that claimant probably could not return to work as a machinist. In March of 1987, Dr. Walker stated that claimant had improved in the low back and his leg pain had decreased, but claimant's cervical condition was still failing to improve. A myelogram showed cervical disc problems and claimant underwent fusion surgery in May of 1987. In April of 1986, Dr. Lifson expressed disagreement with Dr. Walker's opinion on the need for surgery, stating that although claimant was probably a candidate for surgery, he would have conducted additional tests first. However, Dr. Lifson acknowledged that claimant's surgery by Dr. Walker had improved his condition. Dr. Walker stated that claimant reached maximum healing from the surgery on October 22, 1986, but continued to experience low back pain and signs of rupture at the C-5 level. Dr. Walker felt that claimant could not return to work as a machinist. In March of 1987, Dr. Walker felt claimant was doing better but still failed to improve in the cervical area. A myelogram showed continuing neck problems, and Dr. Walker performed fusion surgery on claimant's neck in May of 1987. Claimant stated that he has difficulty standing for prolonged periods of time due to hip and lower back pain; he cannot sit for longer than 20 to 30 minutes due to leg pain; cannot lift more than 20 pounds without pain; cannot walk more than two blocks without pain; and has a physician-imposed restriction not to bend, stoop or twist. Claimant states he is never pain free, and must lie on the floor two to three times per day. Claimant states he can no longer work in his farm or monument business as he did before, and cannot climb a ladder or return to his prior work as an overhead crane operator. Dr. Lifson assigned claimant a permanent partial impairment rating of 20 percent of the body as a whole, with 5 percent as a result of his August 31, 1984 injury. After the surgery by Dr. Walker, Dr. Lifson raised claimant's 20 percent rating of impairment to 30 percent. Dr. Lifson did not rate claimant's neck condition. Dr. Walker assigned claimant's neck condition a permanent partial impairment rating of 6 percent of the body as a whole, and claimant's lumbar spine condition 24 percent of the body as a whole, 10 percent of which pre-existed the August 31, 1984 injury. All of claimant's doctors restrict claimant to light duty work. Dr. Walker opined that claimant's surgery was necessary due to additional scarring from the August 31, 1984 injury even though the fall on that date was minor and even though claimant had previous scarring and prior surgery. Claimant's past employment history consisted of trucking, which involved heavy lifting and prolonged sitting, and as a machinist at FMC, which required heavy lifting, repetitive bending, stooping and prolonged standing. Claimant's earnings at the time of the August 31, 1984 injury were $12.00 per hour. Claimant testified that after his 1977 auto accident, he left the heavy labor of his farming operation to other family members, and that the heavy labor of his monument business is done by family members since his August 1984 injury. Claimant was 48 years of age at the time of the hearing, and had a high school education. Claimant has not applied for work since leaving FMC. Richard Bliss of Illinois Job Service stated in February 1987, that claimant is not employable, and cannot be retrained due to his chronic pain. However, Bliss did not perform any testing of claimant but instead relied upon a brief interview. Allen Vikdal, rehabilitation consultant, testified that claimant has transferable skills such as machine operation, trucking, management and planning, and supervisory skills, especially if claimant would complete a pain management program he was enrolled in. Vikdal acknowledged that claimant would have to commute to find employment. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS On appeal, claimant urges that the deputy's determination of 10 percent industrial disability for his back condition is inadequate. The deputy's determination that claimant failed to show a causal connection between his alleged neck condition and his injury of August 31, 1984, is not raised as an issue on appeal. Claimant has ratings of permanent partial impairment based on his present back condition of 24 percent of the body as a whole by Dr. Walker, and 30 percent of the body as a whole by Dr. Lifson. Subsequent to his injury of August 31, 1984, claimant has restrictions against repetitive work and against bending, stooping or twisting. Claimant stated he cannot stand for prolonged periods of time, sit more than one-half hour, or lift more than 20 pounds without pain. Claimant has also undergone surgery to his back subsequent to his injury of August 31, 1984. Claimant is restricted to light duty work. Claimant's physical impairment is only one of many factors used to determine industrial disability. Claimant is 48 years old with a high school education. His work experience is limited to physical labor. Vocational rehabilitation testimony on claimant's employability is conflicting, but shows that claimant may have some transferable skills within his restrictions. Claimant has experienced a loss of earnings as a result of his August 31, 1984, injury. Claimant's motivation is also a relevant factor. Claimant has not sought substitute employment. Claimant argues that he was unable to seek employment because claimant was still healing from his neck injury even at the time of hearing. However, there is no showing by way of medical evidence that claimant's neck condition prevented him from seeking employment. Based on these and all other appropriate factors for determining industrial disability, claimant is determined to have an industrial disability of 35 percent. Claimant also urges that the deputy's apportionment of a portion of claimant's present disability due to his prior 1977 car accident was improper. Claimant clearly had significant restrictions after his 1977 automobile accident. Although the lifting restrictions were later removed by his family doctor, Dr. Lifson, an orthopedic surgeon, did not alter his original restrictions on claimant imposed in March of 1981. The fact that claimant was able to return to work and perform the duties of his job is relevant to a determination of what his disability was prior to the present injury, but it is not in and of itself determinative of that question. It is also noted that claimant had undergone back surgery prior to his injury of August 31, 1984. Regardless of claimant's ability to return to work after that surgery, his prior back surgery undoubtedly caused some degree of permanent physical impairment. Prior to his August 31, 1984 work injury, Dr. Lifson had assigned claimant a rating of permanent physical impairment of 20 percent to the lumbar spine as a result of the automobile accident and imposed a lifting restriction of not more than 25 pounds. Subsequent to the August 31, 1984 work injury, Dr. Lifson rated claimant's permanent physical impairment as 20 percent of the body as a whole, with 5 percent as a result of claimant's August 31, 1984 work injury. On April 1, 1986, Dr. Lifson revised this rating to 30 percent of the body as a whole, due to the subsequent surgery performed by Dr. Walker. Dr. Walker rated claimant's condition as 24 percent of the body as a whole, with 10 percent preexisting claimant's August 31, 1984 injury. Claimant thus has medical ratings of permanent physical impairment of 5 percent and 10 percent of the body as a whole for his back condition prior to his August 31, 1984 work injury. Dr. Lifson did not rate claimant's neck condition and Dr. Walker rated claimant's neck condition separately, and thus no apportionment for that condition need be made from the 35 percent industrial disability previously determined. Claimant's preexisting back condition, however, does need to be apportioned from his present industrial disability. Claimant was able to perform the duties of his job, but nevertheless had prior ratings of 5-10 percent of the body as a whole permanent physical impairment and a prior back surgery. Claimant also had prior restrictions which were later removed by one of his doctors but not by another. It is determined that claimant had a preexisting industrial disability of 25 percent. As a third issue on appeal, claimant urges that he falls under the odd-lot category. However, as noted above claimant did not establish the threshold requirement of showing that he had sought employment in the job market. Claimant justifies this by stating that he was unable to apply for work due to the alleged fact that he is still recovering from his neck condition. However, even if it is assumed that claimant should not be required to show an attempt to find employment, it is also noted that the greater weight of the vocational rehabilitation evidence shows that there are some jobs claimant could perform in the job market. Claimant is not an odd-lot employee. Finally, defendants on appeal urge that the deputy improperly determined the end of the healing period. Defendants' argument is premised on a rejection of Dr. Walker's conclusion that further surgery was needed. Dr. Walker clearly establishes claimant's maximum healing as occurring on October 22, 1986. Dr. Walker's determination that surgery was necessary is undisputed in the record and has been shown to have improved claimant's condition. Claimant's healing period ended October 22, 1986. FINDINGS OF FACT 1. Claimant was an employee of defendant employer on August 31, 1984. 2. On August 31, 1984, claimant received an injury arising out of and in the course of his employment with defendant. 3. Claimant injured his back in an automobile accident in 1977. 4. As a result of the automobile accident, claimant underwent back surgery and received a permanent physical impairment rating of 20 percent of the body as a whole, as well as restrictions on lifting, bending, stooping and twisting by Dr. Lifson, an orthopedic surgeon. 5. Claimant's lifting restriction was later removed by claimant's family doctor. 6. Subsequent to his injury, claimant again underwent back surgery, and received a rating of permanent physical impairment of 24 percent of the body as a whole with 10 percent attributable to the 1977 car accident from Dr. Walker; and a rating of permanent physical impairment of 30 percent of the body as a whole, with 5 percent attributable to the 1977 car accident, by Dr. Lifson. 7. Claimant's surgery by Dr. Walker subsequent to his August 31, 1984 injury was to correct scarring and aggravation of claimant's back condition as a result of his August 31, 1984 fall. 8. Claimant reached maximum healing on October 22, 1986. 9. Claimant was 47 years old at the time of the hearing and had a high school education, with work experience limited to physical labor. 10. Subsequent to his injury of August 31, 1984, claimant has a loss of earning capacity of 35 percent. 11. Prior to his injury of August 31, 1984, claimant had a loss of earning capacity of 25 percent. 12. Claimant is not an odd-lot employee. CONCLUSIONS OF LAW Subsequent to his injury of August 31, 1984, claimant has an industrial disability of 35 percent. Prior to his injury of August 31, 1984, claimant had an industrial disability of 25 percent. As a result of his injury of August 31, 1984, claimant has an industrial disability of 10 percent. Claimant is not an odd-lot employee. Claimant's healing period ended October 22, 1986. THEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendant is to pay unto claimant healing period benefits from October 15, 1984 until October 22, 1986, at the rate of three hundred twenty-one and 10/100 dollars ($321.10) per week. That defendant is to pay unto claimant fifty (50) weeks of permanent partial disability benefits at a rate of three hundred twenty-one and 10/100 dollars ($321.10) per week from October 23, 1986. That defendant shall pay accrued weekly benefits in a lump sum. That defendant shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendant is to be given credit for benefits previously paid. That the costs of the appeal are to be shared equally. That defendant shall file claim activity reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1(2). Signed and filed this 17th day of March, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave. SW, Suite 114 Cedar Rapids, Iowa 52404 Mr. James E. Shipman Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY J. BEARCE, Claimant, FILE NO. 782809 VS. A R B I T R A T I 0 N FMC CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Larry J. Bearce, claimant, against FMC Corporation, a self-insured employer (hereinafter referred to as FMC), for workers' compensation benefits as a result of an alleged injury on August 31, 1984. On September 3, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Kathryn Bearce, Richard Bliss, William Holtz, Allen Vikdal and Cynthia Gratias. The exhibits received into the evidence at the hearing are listed in the prehearing report. The prehearing report contains the following stipulations: 1. Claimant seeks temporary total disability or healing period benefits from october 15, 1984 and claimant has been off work since that time; 2. If an injury is found to cause permanent disability, the disability is an industrial disability to the body as a whole; 3. Claimant's rate of compensation in the event of an award of weekly benefits from this proceeding shall be $321.10; and, 4. With reference to the requested medical expenses, it was stipulated that the provider of the services would testify BEARCE V. FMC CORPORATION Page 2 that the fees were reasonable and defendant is not offering contrary evidence. It was also stipulated that the medical expenses are connected to treatment for a neck and back condition upon which claimant is now basing his claim but that the causal connection of these expenses to a work injury remains an issue to be decided. It was disputed that the medical treatment offered by John Walker, M.D., was reasonable and necessary treatment of a work injury. At hearing the defendant objected to claimant raising any issue of entitlement to workers' compensation benefits for a neck or cervical back condition. Defendant argued that claimant initially did not complain of neck problems, only low back and leg problems and received treatment only for those problems. It was not until the latter part of 1986 and early 1987 that claimant began to receive anything more than conservative treatment for the neck problem allegedly caused by the August, 1984, work injury. Also, claimant in his deposition in April, 1987, denied that he was claiming benefits for this neck condition. Defendant stated that they are not prepared for any issue dealing with a neck condition. Although defendant's objections may have merit, the matter is moot as the undersigned has not found a causal connection between the neck condition set forth in the record of this case and anything that may have happened on August 31, 1984, the subject of this proceeding. Claimant filed a motion to amend the prehearing report subsequent to the hearing to submit additional travel expenses for reimbursement under Iowa Code section 85.27. Defendant filed a resistance to this motion. Division of Industrial BEARCE V. FMC CORPORATION Page 3 Services Rule 343-4.31 states that no evidence shall be taken after the hearing. In light of this rule, claimant's application must be and is denied. Claimant's attorney stated at the start of the hearing in this case that he questioned the assignment of this matter for hearing at the time of the prehearing conference because claimant is still recovering from the alleged work related back condition and recent surgery performed on his neck. However, it should be noted that this matter was set for hearing at the personal demand of claimant for action of his claim which was expressed to this agency and also through the Iowa governor's office. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of his employment; II. Whether there is a causal relationship between the work injury and the claimed disability; III. The extent of claimant's entitlement to weekly disability benefits; IV. The extent of claimant's entitlement to medical benefits under Iowa Code section 85.27; and, V. The extent of claimant's entitlement to penalty benefits under Iowa Code section 86.13. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. There was little dispute among the parties as to the nature of claimant's employment at FMC. Claimant testified that he was employed by FMC from 1968 until October, 1984. Claimant stated that he worked at the same manufacturing facilities in Cedar Rapids, Iowa since March, 1966. Originally the facilities were owned by Link Belt Speeder Corporation who sold out to FMC Corporation in 1968. Claimant initially was a sweeper performing janitorial work but later became an overhead crane operator. Eventually, claimant moved into the machine shop operating various drill and lathe machines. Although each job varied as to BEARCE V. FMC CORPORATION Page 4 physical requirements, most involved at least some repetitive heavy lifting, bending, twisting, and stooping along with prolonged standing. Following a car accident in 1977 which precipitated physician imposed work restrictions, claimant returned to the overhead crane operator job. Claimant testified that this job was eventually abolished in the latter part of 1983. Claimant then obtained a removal of his work restrictions from his family physician allowing him to return to the machine shop. At the time of the alleged injury in this case, claimant was performing a job called a radial drill operator. Claimant said at hearing that he was required to stand on this job and occasionally lift up to 70 pounds. For weights above 70 pounds or other heavy objects, a crane operated by hand was available for his use. Claimant testified that he injured his neck and low back on Friday, August 31, 1984, while at work. He testified that at the time of the injury he was performing the drill press operator job requiring him to operate an overhead crane from floor level using a control box suspended down from the crane. This control box hung approximately four feet off the floor. Claimant stated that while he was walking backwards at a time he was operating the crane, he tripped on a skid and fell backwards, catching himself by grasping the control box before hitting the floor. Claimant said at the hearing that he twisted his back during this fall and immediately felt a burning sensation in his low back which persisted not only that day but over the ensuing Labor Day weekend. Claimant stated that upon his arrival at work the following Tuesday morning, he immediately experienced severe pain in his low back after getting out of his car. Claimant could barely walk and reported to the nurse upon entering the plant. Claimant then reported the events of the previous Friday to company officials. Claimant stated at hearing that he did not report the fall at the time because he did not think the injury was "a big deal." However, claimant admitted that he actually attempted some sort of self-traction after the August 31, 1984 incident using a device attached to his back to hang off the floor to help alleviate some of the discomfort. Claimant testified that his condition deteriorated on August 31, 1984 with increasing pain in his back and legs. Claimant states that he had to take it easy over the weekend. Claimant testified that on Monday, upon the insistence of a customer, he reset a grave monument that had been overturned by vandals. Claimant and his wife operated a monument business in addition to his employment at FMC. Claimant stated that he used a skid steer, a four wheel drive self-propelled hydraulically controlled end loader, to lift and reset the monument. He stated he had to initially use a pry bar to place a two-by-four under the monument. He then used the skid steer to push the two-by-four under the monument in order to attach the lifting strap. Claimant also had to load and unload the skid steer for this job and position the two ramps used to drive the skid steer onto the trailer which weighed approximately 60 pounds each. Defendant contends that if he injured himself at all, BEARCE V. FMC CORPORATION Page 5 claimant's injury on August 31, 1984 was very minor. Claimant contends that two supervisors observed the fall incident. William Holtz, the personnel director at FMC at the time of the alleged injury testified that he talked to both supervisors. According to Holtz, one denied observing the incident and the other indicated that the incident did not appear to be serious enough to cause injury. Direct testimony was not obtained from any of these supervisors. Histories of claimant's complaints contained in medical reports from treating physicians after the incident are inconsistent. Claimant was initially treated by William R. Basler, M.D., on September 4, 1984. Dr. Basler reports that claimant said he was "okay" over the Labor Day weekend. Dr. Basler diagnosed muscle strain and referred claimant to James R. LaMorgese, M.D., a neurosurgeon. Dr. LaMorgese had seen claimant previously for low back and neck pain. Dr. LaMorgese diagnosed muscle strain "in a setting of a patient who has had previous problems with back surgery.O Dr. LaMorgese testified in his deposition that claimant complained to him of low back pain radiating into his legs and feet. Dr. LaMorgese reports that claimant told him that he felt "tightening" after the fall incident and experienced no difficulty with pain over the Labor Day weekend until returning to work on Tuesday. In his deposition taken in December, 1985, claimant testified while handling the ramps for the skid steer on Labor Day weekend he could not recall any burning sensation in his back. Later on in the deposition claimant indicated that the burning sensation was continuous over the weekend. The first reference to the term "burning sensation" in the medical reports from physicians in the record is a report from Alexander Lifson, M.D., an orthopedic surgeon at the Sister Kenny Institute in Minneapolis, Minnesota dated April 15, 1985. This was also the first time there was any mention by claimant of chronic neck and shoulder pain following the injury. Dr. LaMorgese placed claimant on light duty following his first examination of claimant and claimant remained on light duty work at FMC for five weeks. FMC then laid claimant off stating that there was no more light duty work available in the plant. Claimant testified that his condition has deteriorated during this time and since that time. There is no question from claimant's testimony and the medical reports presented that claimant had very serious problems with low back pain, leg pain and pain in the cervical neck and shoulder area prior to the events of August 31, 1984. In December 1, 1977, claimant testified that he was involved in a motor vehicle accident in which he was struck from the rear and pushed off the roadway while traveling home from work. Although the medical records show that he was released from the hospital emergency care after the accident without evidence of injury, claimant experienced low back pain, neck and shoulder pain, dizziness and nausea after he returned to work the following day. Claimant was initially treated conservatively by his family physician but later was referred to an orthopedic surgeon, W. J. Robb, M.D., and Earl Bickel, M.D., who likewise treated claimant's symptoms of low back and neck pain conservatively. After a few unsuccessful attempts to return to work over the next several months and upon continued persistent pain BEARCE V. FMC CORPORATION Page 6 complaints, claimant was admitted to the hospital in December, 1978, by Eugene Hertzberger, M.D., and a myelogram was performed which revealed only mild problems at the L4-5 level of claimant's lower spine. Claimant briefly returned again to work but upon continued low back pain he was eventually referred in February of 1980 by his treating physicians to the Sister Kenny Low Back Institute in Minneapolis, Minnesota. At this center he was treated and underwent therapy under the direction of Alexander Lifson, M.D., an orthopedic surgeon at the institute. Claimant received initial conservative care but eventually underwent surgery in May, 1980, called a decompression laminotomy in the low back. According to the reports of Dr. Lifson, after receiving pain therapy treatment following the surgery, claimant responded quite well to the surgery by the spring of 1981. However, he still suffered disability which Dr. Lifson opined as constituting a 20 percent disability to the lumbar spine as a result of the auto accident. Dr. Lifson on March 3, 1981, permanently restricted claimant's physical activities to only occasional bending, squatting, crawling, climbing, reaching above shoulder, kneeling, and lifting under 24 pounds. Claimant was to never lift or carry over 25 pounds. It should be noted that claimant, during his recovery from the 1980 surgery by Dr. Lifson, developed chronic pain syndrome behavior which was diagnosed and treated in 1981 at the Sister Kenny Institute Pain Center following a MMPI psychological test which indicated the following: GREAT NUMBER OF CHRONIC PHYSICAL COMPLAINTS AND PREOCCUPATION WITH BODILY FUNCTIONS. MUCH FUNCTIONAL PAIN, FATIGUE AND WEAKNESS LIKELY. VERY IMMATURE, DEMANDING AND EGOCENTRIC. FIXED NOTIONS AS TO ORGANIC BASIS FOR COMPLAINTS. THESE COMPLAINTS, WHICH PROBABLY FIT NO ORGANIC PATTERN ARE LIKELY BE PRESENTED IN A HISTRIONIC MANNER. LACKS INSIGHT AND IS UNLIKELY TO ACCEPT A PSYCHOLOGICAL EXPLANATION OF SYMPTOMS. EVEN THOUGH PATIENTS WITH THIS TYPE OF PROFILE ARE PRONE TO DEVELOP FUNCTIONAL COMPLAINTS THE POSSIBILITY OF ORGANIC DISEASE CANNOT BE EXCLUDED. SEVERELY DEPRESSED, WORRYING, AND PESSIMISTIC. PROBABLE FEELINGS OF UNREALITY. BIZARRE OR CONFUSED THINKING AND CONDUCT. HAVE STRANGE ATTITUDES AND FALSE BELIEFS. PROBABLY FEELS SEVERELY ALIENATED AND WITHDRAWN .... In March, 1981, claimant could not return to the machine shop and drill press operator job under the restrictions imposed by Dr. Lifson and he was placed on a light duty job as an overhead crane operator. Claimant testified that he also at that time severely restricted his prior extensive farming operation as a result of his disability following the auto accident. Claimant was then laid off in June, 1982, because the overhead crane operator job was abolished and there was no other light duty available in the plant. Claimant then stated that he attempted and successfully built up his physical. condition and returned to his family physician, John Meyer, D.O., who issues the following statement to FMC: BEARCE V. FMC CORPORATION Page 7 To Whom It May Concern -- LARRY BEARCE WAS EXAMINED TODAY. I HAVE ADVISED HIM THAT ALL PREVIOUS WEIGHT LIFTING RESTRICTIONS HAVE BEEN DISCONTINUED. HIS ACTIVITIES ARE AT HIS DISCRETION. As a result of this medical statement by Dr. Meyer, claimant was allowed in November of 1983 to return to his former drill press operator job, the job that he held at the time of the 1977 auto accident. Claimant worked approximately 11 months in this job prior to the work injury in this case. Furthermore, in March, 1982, while attempting to climb a ladder to change a light bulb at the FMC plant, claimant struck his head on a gear box and injured his neck. Claimant received treatment consisting of medication and physical therapy from Dr. LaMorgese for cervical strain involving neck and shoulder pain with headache and numbness and tingling in his hands for approximately two months prior to his layoff. From what can be deciphered from the evidence submitted, claimant did not miss any work as a result of this incident. The medical records submitted show that claimant's initial medical treatment by Dr. LaMorgese following the August 31, 1984 injury remained conservative. However, this treatment did not improve claimant's condition. In February and March, 1985, claimant was examined by Martin Roach, M.D. Dr. Roach agreed that claimant should not return to heavy repetitive work at the plant. in April, 1985, Dr. LaMorgese referred claimant back to Dr. Lifson who had performed the surgery on claimant in 1980. According to reports from Dr. Lifson, claimant's pain complaints were many and varied and extended from his head in the form of headaches, to his feet. Claimant complained of neck pain, mid-back pain and low back pain along with upper and lower extremity pain. Dr. Lifson felt that claimant displayed a continuation of his former pain behavior. CT scans of claimant's back indicated nothing new since 1980. Claimant was then treated by the Sister Kenny Institute conservatively with physical therapy. Claimant at this time attempted to obtain some relief of his pain using an electric device called a TENS unit. Claimant was discharged and returned home with a prescription for home exercises. On May 22, 1985, Dr. Lifson felt that claimant's condition had remained unchanged and offered nothing further as far as treatment for claimant's pain complaints. In August claimant began to see John R. Walker, M.D., another orthopedic surgeon. Dr. Walker believed that claimant's chronic low back difficulties were due to scarring in the area of the previous surgery and from the August 31, 1984 back strain at work. Dr. Walker recommended that claimant undergo exploratory surgery and fusion of vertebras in the low back. Claimant sought out and received a second opinion from Earl Bickel, M.D., who stated that claimant should try a back support first, but Dr. Bickel stated that if a support does not relieve the pain, the fusion may be appropriate but that he would like to see a CT scan before surgery was performed. Claimant then underwent the surgery by Dr. Walker in August, 1985. Claimant testified that the surgery substantially reduced the pain in his lower back but BEARCE V. FMC CORPORATION Page 8 did not eliminate it. Dr. Lifson in April, 1986, questions Dr. Walker's views on scarring in the necessity of the low back surgery. However, Dr. Lifson concludes that claimant "probably was a candidate for lumbosacral fusion surgery" although he would have performed several additional tests on claimant before actually performing the surgery. Dr. Lifson states that if claimant has improved he could not argue with success. According to Dr. Walker, claimant improved greatly from the surgery and reached maximum healing from the surgery on October 22, 1986. However, claimant continued to experience residual low back and low lumbar pain. Claimant also showed evidence of mid-dorsal spine strain and it appeared to Dr. Walker that claimant had signs of disc ruption at the C-5 level of claimant's cervical neck. Despite reaching maximum healing, Dr. Walker expressed doubt that claimant would ever return to work as a machinist. In March, 1987, Dr. Walker reported that claimant was doing quite well with the low back and leg pain but failed to improve in the cervical area. Upon a diagnoses of cervical disc problems after a myelogram, Dr. Walker surgically fused vertebras in the area of claimant's neck in May, 1987. At the time of hearing, claimant was still recovering from this surgery and continuously wore a cervical collar. Claimant admitted in his various testimonies in the record that he operated his skid steer and a larger end loader in BEARCE V. FMC CORPORATION Page 9 various snow removal jobs during the winter of 1984. Claimant denied that he performed any heavy work in his monument business, farm operations, gardening or snow removal operations during this time although he admitted to performing some work in all of these areas on a limited basis. Claimant described his current medical condition as follows: 1. After the myelogram test for the next surgery, claimant has had a bladder problem. 2. Claimant has difficulty standing for prolonged periods of time due to hip and lower back pain. 3. Claimant can only comfortably sit for 20 to 30 minutes at a time and experiences leg pain while sitting. 4. Claimant cannot lift over 20 pounds without experiencing significant problems. 5. Upon the advice of his physicians, claimant does not bend, stoop or twist. 6. Claimant can only walk up to two blocks before his legs begin to bother him. Claimant states that he is never totally pain free and he experiences occasional burning pain. He is compelled to lie on the floor two to three times a day and has difficulty sleeping. Claimant stated that he can no longer mow the lawn, go fishing or work on his car as he did before. Claimant testified that he can no longer farm or work in the monument business as he did before. Claimant testified that he could not return to overhead crane type of work as he did after the auto accident because he cannot climb a ladder. Claimant believes that he will eventually return to work if he is able to build himself back up again as he did after the auto accident. Only two physicians have rendered opinions as to the extent of claimant's permanent impairment which may have resulted from the August 31, 1984 incident. Dr. Lifson opines that claimant's disability to his spine is 20 percent, five percent of which was attributed to the August 31, 1984 injury. Dr. Lifson did not rate claimant's neck problems. Dr. Walker opines that claimant's chronic neck difficulties consist of a six percent impairment to the body as a whole and that claimant's lumbar spine problems constitute a 24 percent impairment to the body as a whole, 10 percent of which preexisted the August 31, 1984 injury. All of claimant's physicians restrict claimant's activities to light duty work in a manner similar to claimant's self description of his limitations. In his deposition, Dr. Walker believes that the surgery was necessary due to the additional scarring from the strain of the August, 1984, fall even though the fall was relatively minor given claimant's past scarring in these areas from prior injuries and surgery. Dr. Walker stated in his deposition that his causal connection opinions are largely based upon the histories provided to him by claimant. He states that BEARCE V. FMC CORPORATION Page 10 in order to arrive at a causal connection opinion you have to believe claimant. Claimant testified that his past employment primarily consists of trucking requiring heavy lifting and prolonged sitting and machinist work at FMC requiring heavy lifting, repetitive bending, stooping and prolonged standing. At the time of the alleged work injury in this case, claimant was earning approximately $12.00 per hour. Prior to the 1977 auto accident, claimant was extensively involved in grain and livestock farming operations but this activity virtually ended following the auto accident. Claimant states that what farming operations he is now engaged in are performed by family members. Claimant testified that he and his wife have been in the grave monument business since 1967. Claimant states that this is a business consisting of selling and setting the monuments. The setting of the monuments involves digging three and one-half foot frost footings for each monument which is done by hand. Claimant stated that before the 1977 auto accident he performed this digging by himself. After the auto accident he could not do so but eventually built himself back up to where he could perform this type of digging again before the August, 1984, alleged work injury in this case. Claimant states that all heavy work at the present time and subsequent to the FMC alleged injury is now being performed by family members or he hires the work done. Claimant admits that he occasionally drives the skid steer and other equipment in his various activities. Claimant stated at the hearing that he is 48 years of age and has a high school education. Claimant appeared articulate and intelligent at the hearing. Claimant is currently serving a second term as mayor of a small community in which he lives.. Claimant testified that his current activities are quite limited as he still is recovering from the neck surgery. Claimant is receiving social security disability benefits. Claimant has not applied for work since leaving FMC's employ. Claimant said that he intends to seek out rehabilitation through the state in the future. Richard Bliss, a vocational counselor from Illinois Job Service, opined in February, 1987, that claimant is not gainfully employable. He believes that claimant cannot return to his former work due to his physical limitations. Claimant is only able to perform sedentary work and should be retrained. However, he questions claimant's ability to complete retraining due to his chronic pain. Bliss did not perform any testing upon claimant and his only personal contact with claimant has been at the hearing and a brief encounter before his deposition. Allen Vikdal, a rehabilitation consultant retained by defendant, testified that after his examination of claimant's background, he believes that claimant possesses a tremendous amount of transferable skills such as machine operation, trucking, management and planning, organization, supervisory and the ability to manage a private small business. Vikdal also felt that claimant was a good communicator and still young enough to do what he wants. Vikdal believes that if claimant were to complete a pain management program at Iowa Methodist Hospital which he apparently has been accepted into, that he would be able BEARCE V. FMC CORPORATION Page 11 to find suitable employment at a higher level than entry level. Vikdal admits that claimant possesses negative employment factors such as being off work for a long period of time and that there is a limited labor market in the Wyoming area, the place of his residence. However, Vikdal states that if claimant were willing to commute as he did before when he worked for FMC, there would be a number of opportunities for employment available to him. Vikdal concludes that claimant is indeed employable. Finally, Cynthia Gratias, the risk management supervisor for the defendant's adjusting company, testified that she denied claimant's claim of a work injury based upon the fact that claimant had failed to immediately report the injury and that he had worked at his residence over the weekend. She stated that she concluded that claimant had only suffered a temporary aggravation from reports submitted to her by Dr. Basler and Dr. LaMorgese. Claimant's appearance and demeanor at the hearing indicated that he was testifying truthfully. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1959). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited herein. In the case sub judice, as pointed out in claimant's brief, claimant's account of the August 31, 1984 incident has always been consistent in histories provided to physicians. The failure of his supervisors to remember the incident which they supposedly witnessed does not appear to be important. What may be a minor incident in the minds of his superiors was certainly not minor given claimant's past back problems. What was not consistent was claimant's description of symptoms after the incident. However, all of the symptoms were subjective type of complaints. Obviously, Dr. Basler and Dr. LaMorgese were reporting on what they perceived claimant was telling them. Differences in discrepancies of subjective complaints in medical reports are not that surprising to this agency. In his deposition claimant appeared to be inconsistent when he denied any recollection of discomfort when asked to describe his pain complaints at the time he was handling the ramps to load the skid steer. However, in response to a clear question by his attorney later in the deposition he stated that the burning sensation was indeed continuous. When someone states to a doctor that he was okay or not having difficulties with pain, this does not mean that claimant was free of discomfort or pain. Also, the activity of resetting the monument does not appear to be overwhelmingly damaging to claimant's case. Claimant has always been an active BEARCE V. FMC CORPORATION Page 12 person and to do nothing but reset a monument over the weekend was in his mind "resting." Clearly the facts support a finding that claimant aggravated a preexisting condition in his low back. All of the physicians in this case diagnosed a low back strain following the tripping incident and most of them indicate a recurrence of chronic low back pain subsequent to the incident. With reference to claimant's neck problems, the facts are not so clear. Claimant's first complaints of head, neck, shoulder and arm pain did not begin until April, 1985, seven months after the incident. The records of Dr. Basler and Dr. LaMorgese who treated claimant immediately after the August, 1984, incident, do not reflect any complaints of neck or shoulder pain. The complaints were limited at that time to low back and lower extremity pain. Claimant himself did not describe any problems with his neck immediately after the August, 1984, incident during his testimony at the hearing. The only doctor to attribute claimant's neck difficulties to the August, 1984 incident is Dr. Walker. Dr. Walker gave a detailed explanation in his deposition as to how scarring affected his low back but no such explanation was offered by Dr. Walker in any report or testimony concerning the neck problems. Also, there is no mention of the 1982 neck injury in Dr. Walker's reports. These problems with Dr. Walker's reports puts a fatal flaw in his causal connection opinion regarding the neck problems. Therefore, Dr. Walker's opinions were not accepted in this decision. Therefore, claimant only established by the greater weight of the evidence that he suffered an injury to his low back on August 31, 1984, which constituted an aggravation of a preexisting back condition. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). BEARCE V. FMC CORPORATION Page 13 Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant contends that he suffered disability as a result of a work injury in August of 1984 which caused him additional permanent impairment to that which existed before the work injury. The evidence established that claimant had significant permanent impairment prior to the 1984 work injury as a result of the 1977 car accident. This deputy commissioner is quite skeptical of claimant's claim that claimant fully recovered from this injury when he returned to the drill press operator job in 1983. Clearly, claimant was motivated to return to employment because his light duty job was abolished. Also, the restrictions were not removed by an orthopedic surgeon but by a family physician. However, no records were offered by BEARCE V. FMC CORPORATION Page 14 defendant to show that claimant sought out medical treatment for any pain that he might have experienced while working in his drill press operator job before August of 1984 or that he had performed the job unsatisfactorily in the almost 11 month period before the work injury. The job clearly required claimant to exceed many of the physical restrictions imposed by Dr. Lifson in March of 1981. Both Dr. Lifson, who extensively treated claimant after the 1977 auto wreck and Dr. Walker opined that claimant suffered additional permanent impairment following the August, 1984, work injury. Claimant had always described in detail what this injury constituted. The improvement claimant had made to overcome some of his physical limitations after the auto accident appears to have been nullified by this injury. Claimant appears to be somewhat worse than he was in March of 1981 when he returned to light duty work at FMC. Most physicians agree that claimant cannot perform the same type of work that he performed in March of 1983 and this was concluded by his physicians before claimant received extensive surgery on his non-work related neck problems. From the evidence presented it is found that claimant has suffered additional significant impairment as a result of the work injury despite the existence of an extensive prior existing back problem. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted ill an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In the case sub judice, claimant's medical condition before the work injury was certainly not excellent and he did have prior BEARCE V. FMC CORPORATION Page 15 permanent functional impairment and permanent disability. However, claimant was able to fully perform his job as a drill press operator involving heavy lifting, repetitive lifting, bending, twisting and stooping and prolonged standing. The work injury in this case took almost two years before reaching maximum healing. Claimant has experienced almost continuous pain in varying degrees since the date of injury. Due to the fact that claimant had an ascertainable prior existing disability, apportionment of this prior disability must be made. Apportionment also must be made to separate out any disability caused by a neck condition which is unrelated to the August, 1984, injury. Apportionment of the disability between a prior existing injury and a non-work related injury is proper when there is some ascertainable disability which existed independently before the work injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Claimant's physicians have restricted claimant's work activities by prohibiting tasks such as heavy lifting, repetitive lifting, bending, twisting and stooping and prolonged sitting and standing. However, most of these restrictions existed well before the August, 1984, work injury. Apart from his lost earnings during his healing period which will be compensated by healing period benefits, claimant has suffered a significant permanent loss in actual earnings as a result of his disability. Claimant has not returned to work. Claimant is 48 years old and in the middle of his working career which should be the most productive of his life. Claimant has not looked for work in the past and is currently hampered from doing so by current neck problems. Although claimant argues that there should be an application of the "odd-lot doctrine" and that he should be entitled to permanent total disability benefits under the doctrine, such a doctrine cannot be applied without some effort to look for suitable work. Claimant must demonstrate a reasonable effort to secure employment in the area of his residence as a part of his prima facie showing that he is odd-lot. Guyton v. Irving Jensen Company, 373 N.W.2d 101, 105 (Iowa 1985); Emshoff v. Petroleum Transportations Services, File No. 753723, Appeal Decision by the Iowa Industrial Commissioner filed March 31, 1987. The vocational rehabilitation consultants in this case clearly disagree as to claimant's future employment prospects. What was not done by either consultant was to assess the availability of sedentary or light duty work in the area of claimant's residence or within reasonable commuting distance. However, the opinions from the vocational consultants demonstrate a severe permanent disability much of which, however, existed before August 31, 1984. After examination of all of the factors, it is found as a matter of fact that claimant has suffered a mild or 10 percent additional loss in earning capacity from his work injury over that which existed before August 31, 1984. Based on such a finding, claimant is entitled under Iowa Code section 85.34(2)(u) which is 10 percent of the 500 weeks allowable for an injury to BEARCE V. FMC CORPORATION Page 16 the body as a whole in that subsection. As it will be found that claimant reached maximum healing on August 22, 1987, benefits will be awarded from that date. As claimant has established entitlement to permanent partial disability benefits, claimant may be entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until he returns to work; until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. The evidence shows that claimant has not returned to work and is not able to return to similar work he was performing at the time of the work injury. Claimant has been in virtual constant treatment from the date he left his light duty employment at FMC which was stipulated to be August 15, 1984 and the time Dr. Walker, the last treating physician, opined that he reached maximum healing which is October 22, 1986. It is concluded that this period of time is the appropriate period of healing from the aggravation work injury of August 31, 1984. Although the defendant contends that the surgery by Dr. Walker was unnecessary, no physician actually supports such a theory and Dr. Walker has been shown to be a board certified surgeon who's surgery actually improved claimant's condition. IV. With reference to the medical expenses sought by claimant, the parties stipulated that the expenses listed in the prehearing report are related to claimant's back and neck conditions. None of these expenses appear to have been for treatment only for a neck injury but for both the low back and neck injury and such treatment cannot be really separated. The expenses requested by claimant were incurred before he began to receive extensive treatment on his neck. It is concluded that the work injury was at least one factor although it may not be the only factor in precipitating these expenses. The reasonableness and necessity of Dr. Walker's treatment is discussed above and again Dr. Lifson does not opine that such a treatment was unreasonable or unnecessary. V. With reference to claimant's claim that he is entitled to penalty benefits for an unreasonable delay in commencing payments, the claim is denied. The testimony of the persons involved in the decision to deny claimant's claim established that the denial of claim had a rationale basis considering the extensive low back problems claimant experienced before the alleged 1984 injury and given the views of Dr. Basler and Dr. LaMorgese following the incident. FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of FMC at all times material herein. 3. On August 31, 1984, claimant suffered an injury to the low back in the form of an aggravation of a preexisting condition which arose out of and in the course of employment with FMC. BEARCE V. FMC CORPORATION Page 17 4. The work injury of August 31, 1984 was a cause of a period of disability from work beginning on October 15, 1984 and ending on October 22, 1986, at which time claimant reached maximum healing. 5. The work injury of August 31, 1984 was a cause of a significant permanent partial impairment to the body as a whole and resulted in a reimposition of permanent restrictions upon claimant's physical activity consisting of no lifting over 20 pounds, no prolong standing, bending, stooping, or climbing or sitting. 6. The work injury of August 31, 1984 and the resulting permanent partial impairment was a cause of only a 10 percent loss of earning capacity, a much larger loss of earning capacity had been previously caused by the 1977 auto accident. 7. The medical expenses in the amount of $629.23 and medical travel expenses of $914.28 are fair and reasonable and were incurred by claimant for reasonable and necessary treatment of the work injury on August 31, 1984. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent partial disability benefits and healing period benefits as ordered below. Claimant has established by a preponderance of the evidence entitlement to medical benefits as ordered below. Claimant is not entitled to additional penalty benefits under Iowa Code section 86.13. ORDER 1. Defendant shall pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of three hundred twenty-one and 10/100 dollars ($321.10) per week from October 23, 1986. 2. Defendant shall pay to claimant healing period benefits from October 15, 1984 through October 22, 1986 at the rate of three hundred twenty-one and 10/100 dollars ($321.10) per week. 3. Defendant shall pay to claimant the sum of one thousand five hundred forty-three and 51/100 dollars ($1,543.51) for medical expenses. 4. Defendant shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for all benefits previously paid and previous payment of benefits under a non-occupational group insurance plan under Iowa Code section 85.38(2) as stipulated by the parties in the prehearing report. 5. Defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendant shall pay the costs as set forth in Division BEARCE V. FMC CORPORATION Page 18 of Industrial Services Rule 343-4.33. 7. Defendant shall file activity reports on payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 21st day of October, 1987. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave., S.W. Suite 114 Cedar Rapids, Iowa 52404 Mr. James E. Shipman Mr. James M. Peters Attorneys at Law 1200 MNB Bldg. Cedar Rapids, Iowa 52401 1802; 1803; 1808 Filed October 21, 1987 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY J. BEARCE, Claimant, FILE NO. 782809 VS. A R B I T R A T I 0 N FMC CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 1802; 1803; 1808 Claimant had an extensive prior existing neck and low back problem following an auto accident which was not work related. Claimant several years later reinjured his low back as a result of an incident at work. The claim of additional injury to the neck was denied for lack of causal connection evidence to any incident at work. Claimant was awarded a small amount of permanent partial disability benefits for mild injuries in his industrial disability from that which existed as a result of the auto accident. Due to the fact that claimant was required to undergo additional surgery to relieve pain following the aggravation injury, almost two years of healing period benefits were awarded in addition to the small amount of permanent partial disability benefits. 1702-1802-1806-4100 Filed March 17, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY J. BEARCE, Claimant, File No. 782809 vs. A P P E A L FMC CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. 1702-1806 Claimant found to have industrial disability of 35 percent subsequent to injury. Claimant found to have 25 percent industrial disability prior to injury and apportionment made. 4100 Claimant did not seek other employment, but stated he was unable to because he was still recovering from neck injury. Medical evidence did not support his statement, and vocational evidence showed claimant could perform sedentary work. Claimant found not to be an odd-lot employee. 1802 Deputy's determination of healing period affirmed. Defendant's argument for an earlier termination of healing period was based on a total rejection of one doctor's surgery as unnecessary. The record showed the surgery did relieve claimant's symptoms, and healing period extended to date claimant achieved maximum healing following the surgery. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY J. BEARCE, : : Claimant, : File No. 782809 : vs. : R E M A N D : FMC CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ On January 23, 1991, the Iowa Supreme Court issued a decision in the above-captioned case, Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991). The decision at 456 N.W.2d 531, 537, stated in part: We remand to the commissioner for an order awarding Bearce benefits based on a permanent partial disability of thirty-five percent of the body as a whole. ACCORDINGLY, IT IS ORDERED: The order portion of the appeal decision filed March 17, 1989, is hereby amended in part as follows: Defendant is to pay unto claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of three hundred twenty-one and 10/100 dollars ($321.10) per week from October 23, 1986. All other portions of the appeal decision and order filed March 17, 1989, remain in effect except as specifically modified by the decision of the supreme court. Signed and filed this ____ day of April, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave. S.W., Ste 114 Cedar Rapids, Iowa 52404 Mr. James E. Shipman Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 1806 Filed April 29, 1991 Clair R. Cramer before the iowa industrial commissioner ____________________________________________________________ : LARRY J. BEARCE, : : Claimant, : File No. 782809 : vs. : R E M A N D : FMC CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1806 On remand from Iowa Supreme Court, prior order was amended to award full industrial disability to claimant, without apportionment for prior disability.