1108.10; 2202 Filed October 29, 1991 BYRON K. ORTON DRR before the iowa industrial commissioner ____________________________________________________________ : MICHAEL WEINZWEIG, : : Claimant, : : vs. : : File No. 785837 WEINZWEIG FOOD PRODUCTS, INC.,: : A P P E A L Employer, : : D E C I S I O N and : : ALLIED INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.10; 2202 Deputy affirmed. Forty-three-year-old, 165-pound male with preexisting heart disease sustained myocardial infarction in process of lifting and carrying two containers weighing 90 pounds. Found carrying of one-half or more of one's body weight represents an unusual exertion regardless of actual poundage lifted and carried. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL WEINZWEIG, Claimant, File No. 785837 vs. A R B I T R A T I O N WEINZWEIG FOOD PRODUCTS, INC., D E C I S I O N Employer, F I L E D and JAN 18 1990 ALLIED INSURANCE GROUP, INDUSTRIAL SERVICES Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Michael Weinzweig against defendant employer Weinzweig Food Products, Inc., and defendant insurance carrier Allied Insurance Group to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on December 10, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner in Davenport, Iowa, on January 30, 1989. The matter was considered fully submitted at the close of hearing, although both parties subsequently submitted briefs. The record in this proceeding consists of claimant's exhibits 1 through 54, inclusive, and defendants' exhibits A through D, inclusive. Judy Flax also testified at the hearing. Pursuant to a professional statement presented by claimant's attorney, claimant was unable to attend the hearing due to undergoing coronary bypass surgery on that very date. However, claimant's deposition, a transcript of an interview, and a recorded interview were received into evidence. ISSUES Pursuant to the prehearing report submitted by the parties and approved at hearing, the following issues have been stipulated: That an employment relationship existed between claimant and employer at the time of the injury; that claimant seeks healing period benefits from December 10, 1984 through October 15, 1985; that if claimant be found to have suffered compensable permanent disability, he has suffered industrial disability to the body as a whole; that medical expenses were authorized by defendants. Issues presented for determination include: Whether claimant sustained an injury on December 10, 1984, arising out of and in the course of his employment; whether the alleged injury caused temporary or permanent disability; the extent of claimant's entitlement to compensation for temporary and permanent disability and the commencement date of permanent disability; the rate of weekly compensation, although it is stipulated that claimant was single and entitled to one exemption at the time of injury; claimant's entitlement to medical benefits; taxation of costs. REVIEW OF THE EVIDENCE Claimant seeks to recover for disability caused by a heart attack or myocardial infarction that occurred while he was lifting boxes of salt and pickles for delivery. Claimant is the president and sole officer of defendant Weinzweig Food Products, Inc. He typically has one employee only, handling delivery and heavy lifting. The record is altogether undisputed that claimant had an extensive history of preexisting heart disease. Claimant's history was well-summarized in the October 27, 1987 report of Peter S. Jerome, M.D.: . . . Mr. Weinzweig was in reasonably good health until 1976 when he developed symptoms of dizziness associated with slurred speech, weakness of the left thumb and left toes, diplopia and scotomas. Despite extensive neurological workup, no etiology was found and,it was felt that these problems occurred on the basis of vascular disease. In September, 1977, he was hospitalized at St. Luke's Hospital in Davenport, Iowa for evaluation of chest pain. He was found to have sustained an acute inferior wall myocardial infarction documented by electrocardiographic changes and elevations in CPK levels and elevated CPK isoenzyme levels. He was found to have an elevated serum cholesterol level at 287. He did well until November, 1981 when he developed symptoms of chest pain, weakness and diaphoresis after lifting an electrical generator. He was hospitalized at St. Luke's Hospital for evaluation of unstable angina. His EKG and serum CPK levels demonstrated no acute myocardial infarction pattern and it was felt the patient's symptoms were on the basis of angina. A treadmill cardiac stress test was performed and was reportedly normal. He was evaluated at the University of Iowa Medical Center in May, 1983 for recurrent episodes of chest discomfort. A repeat treadmill cardiac stress test was performed and was markedly positive with patient demonstrating no symptoms of chest discomfort during the test. Because of his past history of myocardial infarction, and a positive treadmill test, cardiac catheterization was performed and demonstrated diffuse three vessel coronary artery disease. He was evaluated by Dr. Ehrenhaft, a cardiothoracic surgery consultant, who felt that the patient would not benefit from coronary artery bypass grafting. The patient was re-evaluated at the Cleveland Clinics in April, 1984 for a second opinion regarding management of his coronary artery disease. A repeat serum cholesterol level was noted to be elevated and the lipoprotein electrophoresis demonstrated a type II-A pattern with increased beta lipoproteins after a 16 hour fast. A graded bicycle cardiac stress test was performed measuring baseline resting and exercise isotope ventriculograms. The patient again had a markedly positive stress test with a baseline left ventricular ejection fraction of 41% (Normal: greater than 50%) which increased to 43% with exercise. The Cleveland Clinics cardiology consultant felt that the patient had severe coronary artery disease "not amenable to coronary artery surgery." He was then evaluated at the University of Iowa Medical Center Lipid Clinic in April, 1984. It was felt that his hyper-cholesteremia remained refractory to dietary restriction and he was subsequently prescribed cholestyramine, a lipid lowering agent. He was seen in followup at the University of Iowa on June 19, 1984, June 22, 1984, and November 20, 1984. During those clinic visits, the patient reported only occasional anginal-type chest discomforts relieved with rest. (Exhibit 46, pages 1 and 2) Claimant's deposition was taken on September 14, 1987. His recorded interview was taken on January 30, 1985. Claimant indicated that defendant employer was incorporated in 1978. The business was originally established by his father as primarily.a retail meat market. Claimant inherited the business and had been working for some 22 years at the time of his deposition. Claimant changed the focus of the business from a retail to a wholesale enterprise and as of the date of his coronary event, the business primarily supplied motels, nursing homes and other businesses with meat, seafood and some other products. Claimant indicated that he maintained a small storage area at his home apart from the normal business address. On December 10, 1984, a Monday, at about 11:00 or 11:15 a.m., claimant prepared to deliver merchandise needed by a customer for a noon meal. He testified that he proceeded to pick up two cases, one of pickles and one of salt, at the same time at his home storage area to load his delivery vehicle. About halfway to the truck (in the history given to Dr. Jerome, claimant indicated that he had some eight feet to travel) he felt a "tremendously sharp, debilitating pain right down the center of my chest. So sharp that I just dropped what I had in my hand and almost hit my foot and I just was, like, in a daze for a few seconds and tried to get hold of my emotions, I suppose you could say." (Weinzweig deposition, page 39, line 22 through page 40, line 3). Claimant called his physician, E. A. Motto, M.D., and was eventually hospitalized. He had experienced an anterior wall myocardial infarction. Claimant testified that on the morning of December 10 before his cardiac event he was answering telephones, making out orders, and perhaps went to the post office and the bank. The salt and pickles were the only two items on that particular order. In his deposition, claimant testified that the two boxes weighed approximately 80-85 pounds, which he broke down as approximately 50 pounds for the pickles and 30-35 pounds for the salt. However, he also testified that the salt was packaged in 24 26-ounce packages. Simple arithmetic shows that this totals 39 pounds, exclusive of packaging. Claimant was more specific in giving his history to Dr. Jerome on July 13, 1987. He advised Dr. Jerome that the pickles weighed 50 pounds and measured 18 inches by 13 inches by 7 1/2 inches, while the salt weighed 39 pounds and measured 14 inches by 10 inches by 11 1/2 inches. When asked how common or uncommon it would be for claimant to lift 80-85 pounds in his work prior to his heart attack, he testified perhaps twice or three times per month. In his recorded interview with a representative of defendant Allied Insurance Group, claimant testified that the two boxes weighed 80/90 pounds. In that interview, claimant was asked to express an opinion as to how much of his work was "light work" and how much was "heavy work." He testified that it was probably on a 50/50 basis, but specifically corrected that statement in his deposition to state that light work was approximately 85 percent of his total duties. Edwin A. Motto, M.D., testified by deposition taken March 6, 1987. Dr. Motto is an internist, a Diplomate of the American Board of Internal Medicine and Fellow of American College of Physicians. He has treated claimant since 1959 when claimant was 18 years old. Dr. Motto relied exclusively on his records in testifying rather than on independent recollection. His notes of December 10, 1984 indicate that claimant had been doing well, but had an uncomfortable feeling, right shoulder and mid-chest on December 8 and December 9. Claimant gave history of a heavy sensation mid-sternal area that has persisted as of December 10. Dr. Motto testified that he did not:write down that claimant suffered chest pain while doing heavy lifting: . . .Whether he had initially told me that -- I think we are dealing with someone who you suspect as having an acute coronary, and you don't always sit down and say exactly what incidents specifically you were doing at the moment. Here was a man who came in with severe coronary artery disease. He was having pain. The electrocardiogram showed some changes. My records at that time do not indicate that he was loading meat in a truck. But certainly to have written it in a letter, he must have told me that at a later time. Q. Now, Doctor, let me tell you, first, I am not seeking to be critical of your notes, and I want you to understand that. A. I am indicating that when I wrote one thing I didn't have here, I must have gotten other history, but I don't have it anywhere in my records. (Dr. Motto deposition, page 15, line 15 through page 16, line 8) * * * . . . Doctor, let me ask you this. Is it possible that it was some time well subsequent to 12-10-84 when this history of having been engaged in heavy lifting was given to you? A. I think anything is possible, but I don't believe it was very probable. (Dr. Motto deposition, page 17, line 7 through line 12) With respect to claimant's complaints of the two days preceding his heart attack, Dr. Motto testified: Q. Doctor, with regard to the history that you obtained, you received, as I understand it, a history of onset of symptomatology prior to December 10, 1984. Is that right? And I apologize to you. I was trying to listen to you and make notes, and I didn't get everything down relative to -- A. He had had some discomfort 12-8 and 12-9, but he described it as a sort of uncomfortable feeling in his right shoulder and mid chest. And I make note that he did not take nitroglycerin, which indicates that, to me, at that time that he did not recognize it as his coronary pain. Q. In your opinion, was that discomfort that he described to you as having experienced on 12-8 and 12-9 cardiovascular in origin, most likely? A. It may well have been. Q. And would that have been the onset of the problems which presented themselves at the time of his office visit to you on 12-10-84? A. That is an unanswerable question. People will have angina or chest pain for days, weeks or months before they have a coronary. Q. Doctor, with regard to -- A. I do know that in all probability, that heart attack occurred on the 10th. It did not occur on April 8th or 9th. It occurred on the 10th, because his enzymes showed a progressive rise being from 54, which was normal on the 10th -- and these enzymes rise very rapidly. They went up into the thousands after that. So that heart attack occurred that day; it had not occurred the 8th or the 9th. (Dr. Motto deposition, page 19, line 23 through page 21, line 4) Dr. Motto testified at great length as to whether there existed any causal relationship between claimant's exertion and his myocardial infarction. He first testified: Q. . . . The interruption of the blood supply, would that have most likely been due to the final constrictions of one or more of his coronary arteries due to sclerotic buildup, or would it have been some other physiological phenomenon? Could you tell me what that would have been, most likely? A. Certainly it was due to his progressive coronary artery disease. I can't tell you what the precipitating incident was, what caused it to close at that particular time. (Dr. Motto deposition, page 21, line 14 through line 23) Dr. Motto testified further: Doctor, as you sit here today, can.you tell me what you feel is the relevant history that brought on the heart attack on December 10th, 1984? * * * I do want you to testify in regard to a reasonable degree of medical probability. But my question relates to the relevant medical history that he gave you that brought on the onset of the heart attack on December 10th, 1984. A. As I indicated, Mr. Weinzweig felt he was doing well. He did not have any pain in which he recognized as coronary artery pain, although he did have pain of a sort, different sort, on 12-8 and 12-9. He indicated to me that while working, he had heavy chest pain which he recognized as his coronary pain. The degree of probability is difficult to assess. I am merely stating the fact that this pain -- he related that this pain occurred while working. I cannot nor do I believe anyone else can reasonably determine what factor aggravates or precipitates a myocardial infarction. It is similar to asking me as to what straw broke the camel's back. He had severe coronary artery disease that was well-documented. Nevertheless, he continued with a degree of activity that he felt was adequate and did not cause pain until this episode. Q. When you say "this episode," what are you -- A. Of chest pain that he had while working. (Dr. Motto deposition, page 26, line 16 through page 27, line 25) Dr. Motto testified further: Q. Is it recognized that heavy exertion or lifting can bring on a myocardial infarction? * * * A. I think there is a great deal of question as to the precipitating factors in a myocardial infarction. I do believe that undue exertion can be considered a precipitating factor. The problem is the determination of what is undue exertion. For one it may be very minimal if coupled with other stresses; and for others, it may take a great deal of exertion. (Dr. Motto deposition, page 30, line 5 through line 21) And further: Q. And can you state -- is it your opinion to a reasonable degree of medical probability that this incident that occurred was an aggravating or precipitating factor in bringing about his heart attack? * * * A. I believe I have answered that. Nevertheless, I think that, again, one is justified in saying -- in assuming that the exertion was a precipitating factor or aggravating factor, more than one is justified in saying that it had nothing to do with it. Q. Can you state that to a reasonable degree of medical probability? A. No. (Dr. Motto deposition, page 31, line 7 through page 32, line 4) And further: . . . But what I am interested in is whether you can state to a reasonable degree of medical certainty whether the amount of work that he was doing on December 10th, 1984, was an aggravating factor in bringing about his myocardial infarction. * * * A. I can only answer that as I have before, that Mr. Weinzweig indicated to me that while doing whatever amount of work he was doing, he had the onset of chest pain which proved to be the time that he sustained an acute myocardial infarction. And I assume that this was an aggravating or a precipitating circumstance. Q. And is that -- A. And I really can't say anything more. (Dr. Motto deposition, page 33, line 24 through page 34, line 16) With respect to a subsequent episode of congestive heart failure for which claimant was hospitalized in March, 1985, Dr. Motto testified: Q. Can you tell me, Doctor, to a reasonable degree of medical certainty whether the congestive heart failure for which he was hospitalized from March 7th, 1985, to March 13th of 1985 was caused by the myocardial infarction he suffered on December 10th, 1984? A. I feel that you are putting too much emphasis on one problem which is a continuum of his entire problems since his initial heart attack in 1977. Now, certainly this added amount of damage that he had with his heart attack in '84 contributed to his congestive heart failure. Prior to this time, he had no history of having congestive heart failure. Prior to this time, his heart was acting, as an efficient pump. After this time, with the added insult of more heart damage, he did have an episode of congestive heart failure which responded very readily to treatment, by the way. But, again, to say that this episode caused it, it is like saying does one match make a bundle. Q. I'm not requiring you necessarily to say the cause. Was it an aggravating -- can you state within a reasonable degree of medical certainty, was the myocardial infarct of December 10th, 1984, an aggravating factor that contributed, materially contributed, to the congestive heart failure for which he was hospitalized in March,of 1985? A. Yes. (Dr. Motto deposition, page 35, line 6 through page 36, line 8) With respect to claimant's healing period, Dr. Motto testified: Q. Can you tell me, Doctor, within a reasonable degree of medical certainty, at what point you felt that Mike Weinzweig had reached a plateau of healing following his myocardial infarct of December 10th, 1984? A. We have a note in our records on July 16th, 1985, Mr. Weinzweig was feeling quite well. The past couple of days, he had had some chest pain. At that time his blood pressure was 100/74, his lungs were clear, his heart rate was regular. We made a note that he will plan to go back to work mid-September with very limited activities, no lifting, et cetera. Q. Is that the -- can you state within a reasonable degree of medical certainty whether mid-September was the time at which you believe that Mike Weinzweig could return to work in the job he was doing prior to the myocardial infarct of December 10th, 1984? A. Not at all. We had told Mr. Weinzweig he could never return to that type of work. Q. Was it your opinion to a reasonable degree of medical certainty that the healing that would have been accomplished by mid-September of 1985 would have been the maximum recovery you would have expected from Mike Weinzweig as a result of the condition of the myocardial infarct of December 10th, 1984? MR. BICKEL: To the exclusion of his condition that would be unrelatable to it, if I understand the question correctly? MR. LEVIEN: That's correct. A. That's what I was going to answer. You have to remember he has severe coronary heart disease which is probably a continuing process. I felt that in September he could attempt to return to some degree of employment, limited, and that further determination would be made on how well he tolerated it. (Dr. Motto deposition, page 36, line 18 through page 38, line 6) Dr. Motto testified further that while basic muscle healing from the myocardial infarction might have occurred in an 8-10 week period, there was also a continuing process by which claimant eventually reached a level of activity commensurate with doing any work, which the doctor pegged to mid-September, 1985. With respect to claimant's current level of impairment, Dr. Motto testified: A. I last saw Mr. Weinzweig on August 27th, 1986. Q. Do you, Doctor, have a medical opinion as to his present condition and present level of functioning, or would it be necessary for you to again examine and evaluate him? A. I would think he would need further testing. But I would certainly classify him as a class 3 at that time which would require rather marked limitation of his activities. (Dr. Motto deposition, page 22, line 2 through line 11) Dr. Motto wrote to claimant's attorney on September 18, 1985 with more specific limitations: That claimant not attempt to put in a full eight hours of work based on his current status and that he limit his lifting to a maximum of 25 pounds. "I believe that Mr. Weinzweig is considerably limited since his most recent infarction.:" Claimant was also seen for consultation by cardiologist Philip A. Habak, M.D. In a letter to claimant's attorney of January 21, 1988, Dr. Habak stated: It appears that Mr. Weinzweig, suffered from a heart attack while performing regular duties at work. Although underlying coronary disease has been present for quite some time, it appears that the heart attack started during some form of heavy exertion at work. Based on the patient's description, it appears that this was an unusual and excessive physical strain while performing work that was considered part of his employment duties. Accordingly, I believe that this activity has most likely precipitated the patient's heart attack or at least hastened its occurrence. Claimant had been seen by William A. Schiavone, D.O., at the Cleveland Clinic Foundation on April 9-11, 1984. Dr. Schiavone wrote on April 12 that claimant had severe coronary artery disease which was not amenable to coronary artery surgery. Dr. Schiavone wrote to claimant's counsel, on April 7, 1987: Your question is whether the lifting of heavy boxes was a substantial contributing factor to bringing on a myocardial infarction in this patient in December 1984. My answer is that this man has severe coronary atherosclerosis and had previously sustained a myocardial infarction. His myocardial infarction is due to insufficienct [sic] blood supply to the heart and that is due to coronary atherosclerosis. Knowing this man's coronary anatomy from April 1984, it is no surprise to me that his coronary disease would progress and that a myocardial infarction would be inevitable. Claimant was also seen for evaluation by E. 0. Theilan, M.D. Dr. Theilan is a Professor of Medicine, Cardiovascular Division of the University of Iowa Hospitals and Clinics, Department of Internal Medicine. Dr. Theilan wrote an attorney representing defendants on June 9, 1986: I have reviewed the records which you sent to me on Michael Weinzweig including the records of Dr. Motto, records from the University Hospitals in Iowa City, a report from the Cleveland clinic, records from St. Luke's Hospital in Davenport and an interview with Mr. Weinzweig. The history indicates that this man had significant risk factors including a strong family history as well as documented hypercholesterolemia. The episode of near syncope and weakness which he suffered in 1976 and which was associated with weakness in his left thumb and with slurred speech could have been from brain embolization from an ulcerated plaque in the arterial blood supply to his brain or could have been a transient ischemic attack occurring on some other basis. The significance of the episode is that it could have been an indicator of associated cardiac problems as well because of the known association and high correlation between carotid artery disease and coronary artery disease. The acute myocardial infarction in 1977 is an established fact. The fact that he had a negative thallium scan in 1978 does not contradict this. It is more likely that the thallium scan was a false negative because of lack of sensitivity of the test. The history indicates that he had recurrent angina in 1981. In 1983 he had coronary angiography at the University of Iowa and at that time also was started on medication in an attempt to decrease his hypercholesterolemia. The records indicate that in April of 1984 he visited the Cleveland clinic. The report indicates that he had "severe coronary artery disease not amenable to coronary artery surgery." There was therefore a long history fully documenting the severity of this man's arterial disease and the fact that it had expressed itself clinically on a number of occasions. The record indicates that Mr. Weinzweig had some symptoms at least two days before the myocardial infarction which was diagnosed on December 10, 1984. On 12/8 and 12/9 he had some right shoulder and mid chest discomfort, not further elaborated upon. The interview with Mr. Weinzweig indicates that the whole shipment which he anticipated loading into his van and delivering would have weighed approximately 80-90 pounds. This task was not accomplished however. On page 4 of the interview Mr. Weinzweig stated, "I had just started, just started." He was in the process of lifting a case of pickles and salt weighing an estimated 25-35 pounds when the chest pain began. He did not complete loading the shipment. Inasmuch as symptoms began after beginning to load the first case only, the duration of the physical effort was short. My conclusion is that there is a reasonable medical probability that loading the pickles and salt was not the precipitating factor in Mr. Weinzweig's reinfarction. He had well-documented severe coronary artery disease which had been clinically manifest. Furthermore the symptoms which he experienced on 12/8 and 12/9 may have been premonitory symptoms. The amount of effort which he actually expended (not the anticipated total effort) was well within the limits of his usually [sic] activity. Dr. Jerome also expressed a view as to whether claimant's infarction was causally related to his exertion on December 10, 1984: DISCUSSION: The patient's well documented medical records demonstrate clear-cut diffuse coronary artery disease, hypercholesteremia, history of acute inferior wall myocardial infarction in September, 1977 and and (sic) history of an acute anteroseptal wall myocardial infarction in December, 1984. It is my feeling that the patient's acute myocardial infarction which occurred December 10, 1984 appeared in the setting of pre-existing diffuse coronary artery disease but was precipitated by his exertional effort. It is clear from three previous treadmill cardiac stress tests that the patient had limited exercise reserve and positive stress test at relatively low levels of exercise. It is very feasible that intense isometric activity such as lifting a 90 lb. work load with cold air exposure (as the said lifting occurred in an open garage on a cool December day) more than likely precipitated the event. Contrary to Dr. Ernest Theilen's comments dated June 9, 1986, patient deadlifted 2 cases simultaneously with a weight load of 89-90 lbs. Dr. Theilen makes the assumption that "this task was not accomplished" and patient merely lifted a single "case of pickles and salt weighing an estimated 25-35 lbs." In a slightly built man, such exertional effort was certainly above his safety threshold. It is my hypothesis that sudden exertional intense effort in the setting of cold air exposure precipitated an acute myocardial infarction. Clinical data is clear that all myocardial infarctions are not result of primary coronary thrombosis. In an autopsy study of 100 consecutive hearts, an occlusive thrombosis was found in the vessel supplying the infarct site in only 44% of cases. Furthermore, an angiographic study performed within 12 hours of infarction, 6 of 15 patients (40%) were found to have reversible coronary artery spasm at the site of the obstruction. It is well known that emotional stress, exposure to cold, and isometric hand grip exercise (similar to other isometric activities) can lower the anginal threshold or even evoke pain de novo in coronary artery disease patients. Data indicates that these events can lead to acute myocardial infarction. It appears that coronary artery spasm plays a major role in classic and variant angina as well as in acute myocardial infarctions., Although coronary artery spasm may occlude a vessel without any associated vascular pathological conditions, most often the spasm occurs in the setting of coronary artery disease. Likewise, other mechanism in the setting of intense activity can occur such as artherosclerotic plaque rupture. For exercise prescription for coronary artery disease patients, it is generally believed that exercise intensity in such patients should be set well below the anginal threshold. Usual warmup periods and cool down periods are prescribed as well. Although the patient had been involved with a regular mild to moderate exercise regimen including stationary bicycling and vigorous walking, the type of acute intense isometric activity accompanied with 90 lb. weight lift in an unconditioned male with coronary artery disease was excessive, and certainly exceeded this patient's threshold of safety. . . . [Citations omitted.] (Exhibit 46, pages 3 and 4) Judy Flax testified at hearing that she is president of an enterprise known as Management Support Services. This business performs accounting and tax functions for small businesses. Claimant and his business had been a client for ten years and had been seen on at least a monthly basis, more often in "tax season." Ms. Flax testified that claimant had gross wages of $44,159 during calendar year 1984 based on his individual tax return. However, claimant was paying himself through the corporation on a weekly basis, actually paying $780.38 per week on the date of injury. Ms. Flax wrote claimant's attorney on August 12, 1985 to state specifically that claimant's compensation for each of the 15 weeks preceding December 10,,1984 remained constant at $780.38. Ms. Flax generally described the business as a wholesale meat operation involving truck sales with a refrigerated truck. Claimant was described as the exclusive income producer for the business, which otherwise employed only one delivery person. Ms. Flax described the business as gradually rising in profitability from 1978 through 1984,,but as contracting through 1987 because claimant was unable to pay as much attention to his accounts, working only approximately 20 hours per week following his coronary accident. Defining gross sales as total receipts from operations and gross profits on sales as those receipts minus the cost of products and labor, Ms. Flax set forth the following figures from 1982 through 1987: Year Gross Sales Profits on Sales Percentage Change 1982 $387,407 $ 92,898 1983 335,781 107,751 1984 325,565 101,286 1985 179,355 57,096 -44% 1986 173,413 51,326 -50% 1987 226,062 70,106 -30% Claimant testified in his deposition that after he returned to business, he was unable to handle the stress that he had before and that he voluntarily cut down the business. He gave up some customers and did not go after new accounts. He generally testified that he had stopped soliciting any type of business, did not have truck sales any longer, eliminated accounts, and generally tried to cut the stress by going to a much lower-key workload than before the heart attack. He testified that he has had to cut his hours to perhaps 10-20 per week. He further testified that prior to the 1984 heart attack he worked an average of perhaps 40 hours per week, working six days per week. Further, claimant testified that he did not notice any difference in the way he did things physically and the way he felt after his 1977 coronary, but did after the 1984 coronary: A. I'm not able to do as much work anymore without getting tired. If I walk, for example, after I've eaten, I get heavy chest pains. I'm not able to lift as much anymore. I have a weight limit of approximately 25 pounds and various changes that I can feel. (Weinzweig deposition, page 31, lines 1 through 6) Exhibit 51 is a list of assorted medical bills totalling $18,470.86. Attached is a statement of Dr. Motto to the effect that the fees charged in the exhibit for medical services and supplies are fair and reasonable, that the expenses were incurred for reasonable and necessary medical treatment, and that the expenses were causally connected to claimant's heart attack of December 10, 1984. Also in evidence is a statement of mileage expenses .showing 5 trips to St. Luke's at 2 miles each, 8 trips to Dr. Motto at 2 miles each, and apparently 4 trips to the University of Iowa at 65 miles apiece. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 10, 1984 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 10, 1984 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish v. Fischer, Inc., supra. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt v. John Deere Waterloo Tractor Works, supra. in regard to medical testimony, the commissioner is required to,state the reasons on which testimony is accepted or rejected. Sondag v. Ferris Hardware, supra. The essential issue in this case is whether claimant's myocardial infarction of December 10, 1984 was caused by his lifting exertions and thereby arose out of his employment. But for this causal nexus issue, there appears no other evidence or suggestion that claimant was not.stricken while in the course of his employment. Quoting 1A [sic] Larson Workmen's Compensation Law, section 38.83, the Iowa Court in Briarcliff College v. Campolo, 360 N.W.2d 91 (Iowa 1984) noted that a compensable injury may result when heavy exertions ordinarily required by work are superimposed upon a defective heart, aggravating or accelerating the preexisting condition or "when the medical testimony shows an instance of unusually strenuous employment exertion, imposed upon a preexisting diseased condition." As Professor Larson put it: If there is some personal causal contribution in the form of a previously weakened or diseased heart, the employment contribution must take the form of an exertion greater than that of nonemployment life. Note that the comparison is not with this employee's usual exertion in his employment, but with the exertions of normal nonemployment life of this or any other person. Claimant must prove by a probability, not a possibility that some employment incident or activity caused his coronary accident. Because he had a preexisting heart condition, he must prove that he suffered an aggravation to his already impaired physical condition. Briarcliff College, id. There is a wide gamut of medical opinion on this crucial issue. Dr. Motto made comments in his deposition that both parties cite as supportive of the respective positions. However, a fair reading of the totality of his testimony would appear to indicate that it was his opinion that the lifting incident was a precipitating or aggravating factor in causing claimant's heart attack, but that he cannot state that opinion to a reasonable degree of medical probability. Consulting cardiologist Philip Habak noted that claimant's heart attack started during a form of heavy exertion at work, "an unusual and excessive physical strain." Based on that scenario he believed that the activity had most likely precipitated the coronary event, or at least hastened its occurrence. Professor E. 0. Theilan noted claimant's long history of heart disease and opined to a reasonable degree of medical certainty that the lifting incident was not the precipitating factor in causing the myocardial infarction. He noted that the amount of effort which claimant actually expended was well within the limits of his usual activity. However, Dr. Theilan's opinion was based on a history that claimant was in the process of lifting a case of pickles and salt weighing an estimated 25-35 pounds and that claimant did not complete loading the shipment. Dr. Jerome also noted that claimant's infarction appeared in the setting of preexisting diffuse coronary artery disease, but opined that it was precipitated by the exertional effort. He felt that intense isometric activity such as lifting a 90-pound workload with cold air exposure "more than likely" precipitated the event. Dr. Jerome also cited evidence that in at least one study, 40 percent of infarction patients were found to have reversible coronary artery spasm at the site of the obstruction. coronary artery spasm, although most often in a setting of coronary artery disease, was cited as itself sufficient to occlude a blood vessel without any associated vascular pathological conditions. Thus, the opinions of these physicians are very much dependent upon how much weight claimant was actually lifting when he suffered his coronary. Except for Dr. Theilan's history, all physicians who saw claimant after his infarction believed that he was lifting in the range of 80-90 pounds. Claimant did not testify personally, so the undersigned did not have an opportunity to observe his demeanor. However, claimant can scarcely be blamed for his nonattendance at the hearing while undergoing bypass surgery. Claimant is the only known witness to this event. His testimony under oath is consistent with the history he gave other physicians, except Dr. Theilan. But for this single history, which can be as easily explained as an error on the part of Dr. Theilan as by deceit on the part of claimant, there appears nothing else of record to challenge claimant's credibility. Claimant has also given specific detail as to what he lifted, particularly with respect to the carton of pickles, which weighed 39 pounds exclusive of packaging. The pickles and salt were in different containers. Dr. Theilan apparently was in error in believing that it was one carton containing two products. The pickles alone weighed more than the estimated 25-35 pounds cited by Dr. Theilan. It appears to the undersigned and is so held that the veracity of claimant's testimony is more consistent with the rest of the record, particularly including specifics as to the two products claimant lifted. Claimant was lifting two cases weighing a total of approximately 90 pounds at the time of his infarction. Because Dr. Theilan's opinion is based upon a critical misunderstanding of claimant's history, it lacks persuasiveness. The opinions of Drs. Habak and Jerome are consistent with the facts as herein found and are persuasive. Dr. Schiavone saw claimant well before the subject infarction, but expressed an opinion based on his findings in April, 1984. He apparently was specifically asked whether the lifting of heavy boxes was a substantial contributing factor to bringing on claimant's myocardial infarction. Dr. Schiavone's answer does not directly address the question. He states his belief that the coronary disease would progress and that a myocardial infarction would be inevitable, but this does not indicate whether such inevitability would have been brought on at as early a date as proved to be the case. That is to say, if the exertion triggered the coronary event, even though the eventual occurrence of that event may be inevitable, it would be speculative to an extreme degree to attempt to guess at how much more time claimant might have had before being similarly disabled. Therefore, while Dr. Schiavone's opinion is of value, it is not necessarily inconsistent with a determination that the work exertion precipitated the myocardial infarction. Based on the foregoing, it is held that the most persuasive medical evidence establishes that claimant's myocardial infarction was precipitated by his work exertion on December 10, 1984. As has been seen, however, that alone does not establish claimant's entitlement to benefits. The key is a finding that the employment exertion must be greater than the exertions of normal nonemployment life "of the employee or of any other person." Briarcliff College v. Campolo, 360 N.W.2d 91 (Iowa 1984); Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The meaning of "normal nonemployment life of the employee or of any other person" is unclear to this observer. The exertions of normal nonemployment life of the employee may vary widely with different claimants, and the exertions of normal nonemployment life of "any other person" obviously vary to an extreme degree. It would be ridiculous to compare claimant's exertions to the exertions of any other person, using the extremes as a test, since obviously only the most extremely active claimants engage in exertion beyond the normal everyday exertion of at least some physical fitness devotees. This is no test at all. In Neil v. John Deere Component Works, file number 756209 (Arb. Decn. May 10, 1989), another deputy explored at some length the concept that the exertions of normal nonemployment life vary tremendously among individuals. It was noted that some individuals are extremely sedentary, while others engage in hard physical labor on the hottest days of summer and in sub-freezing temperatures in winter. The decision held that normal nonemployment covers a wide range of activities and exertions, but that the pace or rate at which an activity is performed is an important consideration. This reasoning is adopted here, but the nature of the actual test to be employed deserves some further consideration. Is this a two-pronged test? Is it appropriate that claimant recover if his work exertion is greater than his own normal nonemployment level of exertion? It seems unreasonable to peg compensability for a heart attack suffered at work to the same individual's normal level of exertion in nonemployment life. That is to say, if this alone is the test, a sedentary claimant would be allowed benefits that might be denied to a more active individual if both suffered coronaries performing the same job in otherwise undistinguishable circumstances. This appears far too arbitrary to constitute an appropriate test for compensability. Based on the foregoing, it appears that the only workable test for determining the exertions of normal nonemployment life of the employee or of any other person is a common-sense "normal range" analysis. As noted, Neil v. John Deere Component Works points out that the normal range of nonemployment exertion is wide indeed. Accord, 1B Larson Workmen's Compensation Law, section 38.83(b). However, there are many exertions still within the wide normal range that most fair minded people would agree are unusual to the average person. For example, a weight lifting hobbyist might believe that a 200-pound dead lift is not unusually strenuous for a weight lifter, but that the same lift is unusually strenuous for an average person. Just as an average citizen is deemed capable of determining the nature of community standards in an obscenity case, the finder of fact in a workers' compensation case should be qualified to determine what is an unusual exertion for an average person. In this case, claimant suffered his infarction while lifting approximately 90 pounds, the first lifting he had done that day. The undersigned considers a lift of that weight to be close to the borderline of what is unusual to the average person, but still over the line; that is to say, the lift was sufficiently "unusual" to constitute an exertion greater than that of nonemployment life of the employee or any other person. Therefore, it is held that claimant's myocardial infarction of December 10, 1984 arose out of and in the course of his employment and was causally connected thereto. As a result, claimant suffered temporary and permanent disability and incurred medical expenses. Under Iowa Code section 85.34(1), healing period is payable beginning on the date of injury and until the employee has returned to work, it is medically indicated that significant improvement is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. In this case, claimant suffered an episode of congestive heart failure requiring his hospitalization in March, 1985. The only physician to express an opinion on the issue, Dr. Motto, stated within a reasonable degree of medical certainty that the myocardial infarction of December was an aggravating factor that materially contributed to the congestive heart failure episode. Healing period may be interrupted or intermittent. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 209 (1982); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). There is no evidence that claimant's healing period had ended prior to the congestive heart failure episode. Because the undisputed evidence is that the congestive heart failure was causally related to the original heart attack, it is held that this merely extended the healing period. Dr. Motto did not believe that claimant could ever return to the type of work he was doing before his infarct. However, he felt that in mid-September, 1985, claimant could attempt to return to some degree of limited employment and that further determination could be made on how well he tolerated it. Apparently, claimant has continued to tolerate his return to employment, even though his hours are substantially less. Claimant's healing period is held to have extended through September 15, 1985. 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 or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant is in a fairly unusual status as the long-term owner of a family business. The business has remained profitable even though claimant is physically able to devote only 10-20 hours per week to its nurture. Claimant had been working for the business some 22 years at the time of his deposition in September, 1987. Unless the business fails or he becomes even more disabled at some future time, it seems apparent that he is most unlikely to seek other employment. Even if claimant were able to do so given his limitations, it is unclear how employable he might be with his lack of employment history and experience limited to a single business. Defendant Weinzweig Food Products, Inc., appears to be essentially the alter-ego of claimant. He is the president, sole officer and only significant employee. It is almost exclusively claimant's efforts that determine how profitable the business will be. Therefore, in this case, it seems reasonable to suppose that the future profitability of defendant employer will be by far the most important determinant of claimant's future earnings, and thus his degree of industrial disability. Dr. Motto is the only physician to have imposed restrictions: That claimant limit his lifting to a maximum of 25 pounds and not attempt to put in a full eight hours of work. These limitations alone would disqualify him for much employment for which he might otherwise be suited. Most significantly, the limitation on working hours has caused claimant to reduce the time he devotes to his business and has dramatically lowered the profitability of Weinzweig Food Products. In the three years prior to claimant's coronary (although he was disabled the last three weeks of 1984) the business had average gross sales of $349,584 and average profits on those sales of $100,645. While 1985 might be unrepresentative because claimant did not return to his work until September, 1986 and 1987 show average gross sales of $199,736.50 and average profits on sales of $60,716. Therefore, it seems that the profitability of the business upon which claimant's potential wages directly depend has decreased on the order of 40 percent. While some of that decrease may arguably be due to unrelated business conditions, it seems evident that the lack of hours claimant is now able to devote to the business is the key factor in that reduction of profitability. Based on the foregoing factors in particular, the record in general, and on the specific understanding for purposes of any later review-reopening proceeding that the ability of claimant to perform services for Weinzweig Food Products, Inc., will be similar to that of 1986 and 1987, it is held that claimant has sustained an industrial disability to his body as a whole of 40 percent, or 200 weeks. The undisputed evidence of Judy Flax establishes that claimant was paying himself on a weekly basis of $780.38 per week for the 15 weeks before the myocardial infarction. The business was profitable enough to justify wages considerably in excess of $780.38. If profits on sales be divided by 52, a weekly sum of $1,947.81 is obtained. Since claimant's corporation has already been discussed as being in the nature of an alter-ego, it might be argued that claimant's rate of compensation should be based on profitability of the business, rather than on what claimant was paying himself at the time of his coronary event. However, the undersigned does not find that argument persuasive. Corporate profits need not be paid out in salary to the sole officer, but might be paid as stock distributions or retained by the corporation for such purposes as expansion, capital purchases, diversification, or any number of other possibilities. In addition, it is obvious that the profitability of a business for tax purposes is subject to a certain degree of manipulation where accounting decisions are made with taxes in mind. (For example, by completing or delaying transactions by the first of any tax year.) Thus, while profitability of the business is an important factor in determining claimant's long-term industrial disability, it is most unreliable as a determinant of his rate of compensation, and, of course, is not among the statutory choices in Iowa Code section 85.36. At the time of his injury claimant was paid on a weekly basis. Pursuant to Iowa Code section 85.36(1), the weekly gross earnings rounded to the nearest dollar are used to determine the weekly earnings of an individual paid on a weekly pay period basis. Thus, claimant's average gross weekly wage at the time of his coronary event was $780.00. The parties have stipulated that claimant was single and entitled to one exemption on the date of injury. The workers' compensation benefit schedule published by this office and effective July 1, 1984 discloses that an individual so situated and with gross weekly wages of $780.00 is entitled to a compensation rate of $398.80. Claimant's medical expenses are set forth in exhibit 51 and total $18,470.86. Dr. Motto has asserted that the fees charged for medical services and supplies are fair and reasonable, the expenses were incurred for reasonable and necessary medical treatment, and that the expenses were causally related to claimant's heart attack of December 10, 1984. This evidence stands unrefuted and is accepted as establishing claimant's right to compensation for the medical expenses set forth in exhibit 51. Similarly, claimant shall be awarded his mileage expenses to St. Luke's Hospital, Dr. Motto's office and the University of Iowa Hospitals and Clinics. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant was employed by Weinzweig Food Products, Inc., on December 10, 1984. Claimant was president, sole corporate officer, and exclusively responsible for the profitability of that business. 2. Claimant had a long history of preexisting coronary artery disease prior to December 10, 1984. 3. While lifting a case of pickles and a case of salt weighing a total of approximately 90 pounds on December 10, 1984, claimant suffered a myocardial infarction. 4. By reason of claimant's myocardial infarction and a subsequent episode of congestive heart failure, which was itself caused by the infarction, claimant was unable to return to work until September 15, 1985, and then on a limited basis. 5. Because of his myocardial infarction, claimant has been given medical restrictions against lifting in excess of 25 pounds or working a full eight hours. Claimant now devotes perhaps 10-20 hours per week to his business. 6. The reduction in claimant's ability to work a full week has directly contributed to a lack of profitability on the part of Weinzweig Food Products on the order of 40 percent. This has resulted in a severe diminution of claimant's potential future earnings, which are directly dependent upon the profitability of the business. 7. Claimant's average gross weekly wage for the 13 weeks prior to his myocardial infarction is $780.38. 8. Claimant's medical expenses as set forth in exhibit 51 total $18,470.86 and have been shown to be fair and reasonable fees for medical services and supplies, incurred for reasonable and necessary medical treatment and causally related to claimant's myocardial infarction. 9. Claimant has sustained mileage expenses totalling 286 miles which have not been reimbursed by defendants. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Claimant suffered an injury arising out of and in the course of his employment on December 10, 1984: A myocardial infarction. 2. Claimant's work injury directly caused a healing period from December 10, 1984 through September 15, 1985 (40 weeks). 3. Claimant's work injury has caused an industrial disability of 40 percent of the body as a whole (200 weeks). 4. Claimant's work injury has caused medical expenses of $18,470.86 which have not been reimbursed by defendants. 5. Claimant's work injury has caused him medically related mileage expenses of 286 miles. 6. Claimant's rate of compensation is $398.80 per week. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant forty (40) weeks of healing period benefits at the rate of three hundred ninety-eight and 80/100 dollars ($398.80) per week commencing December 10, 1984 and totalling fifteen thousand nine hundred fifty-two and 00/100 dollars ($15,952.00). Defendants are to pay unto claimant two hundred (200) weeks of permanent partial disability at the rate of three hundred ninety-eight and 80/100 dollars ($398.80) per week commencing September 16, 1985, and totalling seventy-nine thousand seven hundred sixty and 00/100 dollars ($79,760.00). Defendants shall pay the medical expenses set forth in exhibit 51 and totalling eighteen thousand four hundred seventy and 86/100 dollars ($18,470.86). Defendants shall pay to claimant sixty and 06/100 dollars ($60.06) as mileage expenses. As all benefits ordered herein have accrued they shall be paid to claimant as a lump sum together with statutory interest on healing period and permanent partial disability (but not medical) benefits pursuant to Iowa Code section 85.30. Costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 18th day of January, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Craig A. Levien Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 Mr. John M. Bickel Mr. Ralph W. Gearhart Attorneys at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 1108.10, 1802, 1803, 3000 Filed January 18, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL WEINZWEIG, Claimant, vs. File No. 785837 WEINZWEIG FOOD PRODUCTS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and ALLIED INSURANCE GROUP, Insurance Carrier, Defendants. 1108.10 Claimant with substantial prior history of coronary artery disease suffered myocardial infarction while lifting cases of pickles and salt weighing approximately 90 pounds. It was held that this exertion was "unusual" compared to the nonemployment range of exertion of the average person. Healing period and permanent partial disability benefits were awarded. 1802 Healing period after myocardial infarction was extended by subsequent episode of congestive heart failure which was itself causally related to original infarction. 3000 Rate of owner of one-person corporation was based on actual salary paid, not profitability of business. 1803 A major factor in determining industrial disability of heart attack victim was profitability of employer corporation, which was essentially an alter ego of entrepreneur claimant. Claimant was restricted from working full time, but was the only income producer for corporation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CLAUDE SEIDEL, : : Claimant, : : File No. 785932 vs. : : R E V I E W - WOODLAND, INC., : : R E O P E N I N G Employer, : : D E C I S I O N and : : U. S. INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a review-reopening proceeding upon the petition of claimant, Claude Seidel, against his employer, Woodland, Inc., and its insurance carrier, U. S. Insurance Group. The case was heard on April 4, 1991, at the Des Moines County Courthouse in Burlington, Iowa. The record consists of the stipulated record of the parties. stipulated facts The issue before this party is whether defendants are entitled to a credit against the balance of the judgment which claimant received against a third party defendant. issues The parties stipulated to the following: In a third party action in the Iowa District Court, the claimant obtained a judgment in his favor and against a third party defendant in the amount of $150,000.00. Out of the $150,000.00 judgment, claimant paid his then attorney, fees in the sum of $50,000.00. Claimant also paid to this defendant insurance carrier $31,256.43. The balance from the judgment is $68,743.57. Page 2 conclusions of law Section 85.22 of the Iowa Code provides in relevant portion: When an employee receives an injury or incurs an occupational disease or an occupational hearing loss for which compensation is payable under this chapter, chapter 85A or chapter 85B, and which injury or occupational disease or occupational hearing loss is caused under circumstances creating a legal liability against some person, other than the employee's employer or any employee of such employer as provided in section 85.20 to pay damages, the employee, or the employee's depen dent, or the trustee of such dependent, may take proceedings against the employer for compensation, and the employee or, in case of death, the employee's legal representative may also maintain an action against such third party for damages. when an injured employee or the employee's legal representative brings an action against such third party, a copy of the original notice shall be served upon the employer by the plaintiff, not less than ten days before the trial of the case, but a failure to give such notice shall not prejudice the rights of the employer, and the following rights and duties shall ensue: 1. If compensation is paid the employee or dependent or the trustee of such dependent under this chapter, the employer by whom the same was paid, or the employer's insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, with legal interest, except for such attorney fees as may be allowed, by the district court, to the injured employee's attorney or the attorney of the employee's personal representative, and shall have a lien on the claim for such recovery and the judgment thereon for the compensation for which the employer or insurer is liable. In order to continue and preserve the lien, the employer or insurer shall, within thirty days after receiving notice of such suit from the employee, file, in the office of the clerk of the court where the action is brought, notice of the lien. Indemnity and subrogation are topics which are discussed in Lawyer and Higgs, Iowa Workers' Compensation Law and Practice, Chapter 29, p. 239-241. Indemnity is discussed in section 29-1. The authors write: Page 3 If the claimant recovers from a third party, the employer/insurer is entitled to be repaid from the recovery for workers' compensation paid(1) less attorney fees(2) as allowed by the district court.(3) In the case of Higgins v. Peterson, II Iowa Indus. Comm'r Rep. 199 (Appeal Dec. 1982), claimant appealed a proposed review-reopening proceeding in which defendants were allowed a credit against benefits due claimant from a settlement of a third party action. The commissioner held there was no agreement reached by the parties negating a credit against future medical payments, and that since there was no agreement negating a credit applied against future medical benefits, section 85.22 must be applied. Under section 85.22, a credit was in effect. In the case at hand, there has been no agreement negating a credit applied to future benefits. Therefore, section 85.22(1) is the applicable statute. Under section 85.22(l) defendants are entitled to a credit against benefits, including medical benefits in the amount of $68,743.57. order THEREFORE, IT IS ORDERED: Defendants are allowed credit for sixty-eight thousand seven hundred forty-three and 57/l00 dollars ($68,743.57) against benefit amounts due claimant from its third party action. Interest shall accrue pursuant to Iowa Code section 85.30. Defendants pay costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER (1). The employer is entitled to legal interest on the amounts expended but this is routinely waived. (2). Attorney fees also include costs. See Higgins v. Peterson, 2 Iowa Indus. Comm'r Rep. 199, 202 (appeal dec. 1982); Alexander v. Iowa Public Serv., I Iowa Indus. Comm'r Rep. 3, 4 (declaratory ruling 1981). (3). Iowa Code 85.22(1). Although the employer is not bound by the contract between the employee and the attorney, it is customary that the employer pay the same percentage attorney fee as the employee if the case is handled by the attorney on a contingent fee basis. See Kirkpatrick v. Patterson, 172 N.W.2d 259 (Iowa 1969). Usually, the employee/insurer's portion of the attorney fees is agreed to without the necessity of the district court resolving the matter. Page 4 Copies To: Mr. James P. Hoffman Attorney at Law Middle Rd Box 1087 Keokuk IA 52632 Mr. George E. Wright Attorney at Law 607 Eighth St Marquette Bldg Ft Madison IA 52627 3400 Filed April 22, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : CLAUDE SEIDEL, : : Claimant, : : File No. 785932 vs. : : R E V I E W - WOODLAND, INC., : : R E O P E N I N G Employer, : : D E C I S I O N and : : U. S. INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 3400 Defendants were entitled to a credit against benefits, including medical benefits for a judgment which claimant received against a third party defendant. 1800, 1803 Filed July 27, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROLLAND L. ALLEN, Claimant, File No. 786303 vs A P P E A L HYMAN FREIGHTWAYS, D E C I S I O N Employer, and TRANSPORT INSURANCE COMPANY, Insurance Carrier, Defendants. 1800, 1803 Claimant's award of 15 percent permanent partial disability benefits for a shoulder injury was affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KENNETH HARTZER, Claimant, vs. File No. 786164 SWIFT INDEPENDENT PACKING CO., A P P E A L Employer, D E C I S I O N and NATIONAL UNION FIRE INS., Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 31, 1990 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law 1200 35th St., Ste 500 West Des Moines, Iowa 50265 Mr. Joseph Cortese, II Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 9998 Filed June 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KENNETH HARTZER, Claimant, vs. File No. 786164 SWIFT INDEPENDENT PACKING CO., A P P E A L Employer, D E C I S I O N and NATIONAL UNION FIRE INS., Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 31, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH HARTZER, Claimant, VS. File No. 786164 SWIFT INDEPENDENT PACKING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and NATIONAL UNION FIRE INS., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Kenneth Hartzer, claimant, against Swift Independent Packing Company employer, and National Union Fire Insurance Company, insurance carrier, defendants for benefits as the result of an alleged injury that occurred on December 11, 1984. A hearing was held in Des Moines, Iowa, on November 7, 1988, and the case was fully submitted at the close of the hearing. Claimant was represented by David D. Drake. Defendants were represented by Joseph S. Cortese, II. The record consists of the testimony of Kenneth Hartzer, claimant; and joint exhibits A through L and claimant's exhibits 1 through 3, which all have a number of subparts. Both attorneys submitted excellent briefs. The deputy ordered a transcript of the hearing. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That the alleged injury was the cause of temporary disability and claimant was voluntarily paid temporary disability benefits from December 13, 1984 to December 17, 1984; January 1, 1985 to January 30, 1985; and August 19, 1985 to October 15, 1985, and HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 2 that temporary disability benefits are no longer a disputed issue in the case at this time. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is October 16, 1985. That the rate of compensation, in the event of an award, is $169.30 per week. That the provider of medical services or supplies would testify that the amounts charged are fair and reasonable and that defendants are not offering contrary evidence. That the causal connection of these expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted, but the causal connection to a work injury remains a disputed issue in this case. That defendants make no claim for benefits paid prior to hearing under an employee nonoccupational group health plan or as workers' compensation benefits. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on December 11, 1984, which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which he is entitled. Whether claimant is entitled to certain medical expenses. SUMMARY OF THE EVIDENCE Claimant, born September 17, 1961, was 23 years old at the time of the injury and 27 years old at the time of the hearing. He is married and has two dependant children. He did not com- HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 3 plete high school. He completed ninth grade, started tenth grade and dropped out of school. He has not obtained a GED or pursued any additional formal schooling. He did receive training on how to run a fork lift. Previously, claimant has trimmed, inspected, packed and shipped special meats to restaurants for about a year. He has worked for his father. He has drawn unemployment compensation. All of his past employments involved light work; he was not injured; he had no physical complaints and he had no trouble performing his previous jobs. Claimant's father was in the roofing business. Claimant tore off old roof and cleaned up yards off and on for three or four months. It was dirty work, but not hard work. When his brother left the business his father closed the business. Claimant worked for a motel as a bellman and in the dining room setting up for banquets for about a year and nine months. He received minor injuries three times in this job: (1) he was sprayed in the face with mace; (2) he dropped a table and hurt his leg; and (3) he hurt his hand. None of these incidents resulted in a permanent injury. None related to his back. Claimant then drew unemployment compensation for about a year until it ran out. Then he worked loading semi's at night with a fork lift for about a year until he was laid off and then drew unemployment compensation again. He had no problem doing this job and he was not injured in this employment. Claimant started to work for employer in September of 1984. He still had suffered no back injuries and passed a physical examination before starting to work. A pre-employment x-ray on August 10, 1984, showed a normal lumbar spine (exhibit 1, page 37). He loaded meat on trucks with a hand-operated fork lift called an electric mule. Occasionally he might hand load boxes weighing 50 or 75 pounds and he could do it without any trouble. He also worked on the chuck line boning chucks, trimming tenders, pulling clods and watching the fat machine in the fatroom. He started at $5.53 per hour and his last wage was $10.10 per hour. He also ground bones and boned arms, the front leg of the cow. On December 11, 1984, near the end of the shift, at approximately 12:30 a.m., claimant was loading a truck with an electric mule. He was walking behind it. The floor of the truck was icy because it had just been washed. Claimant slipped and fell. The mule went forward and hit the front of the truck. Claimant testified, " ... as soon as I hit the ground, I felt something in my back, felt like it tore or something. As soon as I got up, I went straight to the office and told Mel that I had fell and hurt my.back." (transcript page 24). Mel was the lead supervisor of the night shift. Later that shift he was required to throw 150 boxes weighing 75 pounds each over his head into a truck. He asked for help, but no one was available to help so he performed this task alone. He felt pain in his lower left back and down HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 4 his left leg. He was real stiff and felt tingling in his lower left back. Claimant said he saw J.W. Hatchitt, D.O., after four or five days. Dr. Hatchitt's notes show that he saw claimant on December 13, 1984, for a fall at work when he landed on his buttocks. He diagnosed sacroiliac strain, gave an osteopathic manipulation, prescribed a medication and took claimant off work from December 12, 1984 until December 17, 1984 (ex. 1, pp. 27 & 29). The company then sent claimant to see R. W. Hoffmann, M.D. An undated report of Dr. Hoffmann's seems to reflect the fall in the truck, but said it occurred in January 1985. It continues that claimant was then placed on the chuck line for three weeks and had developed a slow gradual problem while lifting heavy meat. He was diagnosed as having chronic recurrent lumbosacral and thoracic lumbar strain pattern. Medication and physical therapy were prescribed (ex. 1, p. 22). Other reports of Dr. Hoffmann show that he saw claimant on January 1, 1985, at Mercy Hospital in the emergency room for acute lower back pain which he diagnosed as acute myofacial strain. He referred claimant to Peter Wirtz, M.D., an orthopedic surgeon (ex. 1, pp. 19, 20 & 51; tr. p. 27). Dr. Hoffmann was under the impression that claimant fell twice on the floor of an icy truck and that Dr. Hatchitt had manipulated his back more than once (ex. 1, pp. 53 & 59). Dr. Hoffmann recorded a tentative diagnosis of, "Possibly extruded disc L5-Sl," (ex. 1, p. 55). However, x-rays, ordered by Dr. Hoffmann, of the lumbosacral spine on January 2, 1985, were normal. "The alignment of the lumbosacral spine is good in all projections. No evidence of recent injury or other bone pathology is seen. Impression: normal lumboscral (sic] spine." (ex. p. 57). A bone imaging on January 3, 1985, produced a normal result (ex. 1, p. 53). Dr. Hoffmann reported on March 13, 1985 and cleared up some confusing matters in his notes. He said there was only one fall on or about December 12, 1984. He saw claimant on January 1, 1985, after he awakened from sleep with severe pain in the left groin area radiating around to his back. Claimant went to the emergency room on his own on January 1, 1985 and was hospitalized by a resident. He knew of no prior existing condition. X-rays and CAT scan were normal. He felt claimant's condition would be temporary, but it would warrant medical care and some lost time (ex. B). Claimant was hospitalized from January 1, 1985 to January 4, 1985, by Dr. Wirtz and was taken off work from January 1, 1985 until January 31, 1985. He was treated with medications and physical therapy. Dr. Wirtz diagnosed low back pain with radicular symptomatology, left leg (ex. C, pp. 1 & 8). On January 21, 1985, he said his condition was temporary in nature, but severe enough to warrant his lost time and medical care (ex. C, p. 9). HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 5 He said on January 31, 1985, claimant was released to return to work with a full range of motion and no neurological deficits. Dr. Wirtz stated, "This musculoskeletal strain to the back area has not left him with any permanent impairment as related to this accident that occurred in December of 84.11 (ex. C, p. 10). Claimant related that when he returned to work on or about February 1, 1985, he was placed on the chuck line. It did not hurt at first. He could pull and flip 100 pounds. Then in August of 1985, he developed pain in his left lower back and numbness in his left leg and returned to Dr. Wirtz. Dr. Wirtz saw claimant again on August 22, 1985, and diagnosed, "Musculoskeletal strain, lower back, with radicular symptoms, left leg." (ex. C, p. 2). He reported to the insurance carrier that he had, " ... temporary aggravation of his back condition and will require medical management." (ex. C, p. 12). A new CT scan was done on September 26, 1985, by Stephen Cooper, M.D., with this result. IMPRESSION: 1. Bulging annulus at L4-L5, centrally into the left, but epidural fat and nerve roots are preserved. 2. minimal bulging annulus at L5-Sl with no evidence of disc herniation at either level. 3. No bone hypertrophy or other abnormalities are identified. (ex. C, p. 15) Dr. Wirtz then wrote to the insurance company as follows on October 2, 1985: This patient has undergone a CAT scan which shows him to have disc degeneration at L4-5. This may be symptomatic with heavy lifting over weights of 30 lbs., as well as twisting and pulling of this same weight limit. Enclosed is a copy of the interpretation of the CAT scan. (ex. C, p. 16) Claimant was released to return to work by Dr. Wirtz on October 14, 1985: HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 6 This patient continues to be symptomatic in the same manner. He has been given a slip to return to work with limitation of weight lifting of 30 lbs. He may return to work on 10/15/85. (ex. C, p. 17). On October 30, 1985, Dr. Wirtz reported continuing lower back ache with radicular symptoms on occasion from the bulging disc. He also reported interscapular pain that comes around to the front of the chest. He prescribed a back brace and Darvocet-N 100 for pain relief (ex. C, pp. 3 & 18). On December 6, 1985, claimant continued to have pain in the lower back area up to the interscapular area from pulling, lifting and throwing things over shoulder height without specific neurological or bony etiology. Dr. Wirtz said his activity is an overuse syndrome causing his symptoms. Dr. Wirtz recommended a job change so claimant doesn't have to do heavy lifting. He said he gave him a slip to continue to work with a job change and a 30 pound limit. He predicted that if he continues to lift, push and pull 150 pounds intermittently it will aggravate his condition (ex. C, pp. 3 & 19). On January 13, 1986, he was doing well with the back brace, but a new lower back brace was ordered because the first one caused blisters on the upper rib cage (ex. C, pp. 3 & 20). Symptoms were treated on March 19, 1986; April 21, 1986; May 14, 1986; June 2, 1986 (ex C, pp. 4, 5, 21 & 25). Claimant injured his back again on July 21, 1986 reaching for a piece of meat that started to fall off the table (tr. pp. 32 & 33). This was diagnosed as acute musculoskeletal strain of the lower back which called for medications and physical therapy again (ex. C, pp. 4, 5, 27 & 28). He was released to return to work on August 4, 1986, with restrictions of no bending, twisting, lifting, pushing or pulling of the back area (ex. C., pp. 5, 29 & 30). After the incident on July 21, 1986, when claimant aggravated his back condition reaching for a piece of meat falling of the table, claimant also saw William R. Boulden, M.D., an orthopedic surgeon, on August 7, 1986. There is an indication in defendants' brief that claimant wanted a change of care at this time. Dr. Boulden diagnosed chronic low back pain, source unknown. He prescribed a back exercise program and a TENS (ex. 1, p. 4). On August 19, 1986, he reviewed old CAT scans and saw no evidence of midline disc or other disc problem (ex. 1, p. 5). In another letter on August 19, 1986, Dr. Boulden said he could not determine if the July 21, 1986 incident was related to the December 1984 incident or whether it was totally and completely a new injury (ex. 1, p. 6). On August 28, 1986, he said discograms HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 7 of the lower lumbar spine indicated mechanical back pain that should be treated by physical therapy. Claimant did not have an operative lesion (ex. 1, p. 7). Pursuant to Dr. Boulden's orders, claimant saw Judith Halverson, L.P.T., on August 8, 1986 and was set up with a TENS unit and instructed in a program of exercise. Claimant failed to keep his scheduled physical therapy appointment on August 21, 1986. A new appointment was scheduled for August 29, 1986. He did not show up for that appointment either. Since Halverson had not heard from claimant, she said she was discontinuing his physical therapy (ex. 1, p. 13; Ex. A, p. 14). On September 30, 1986, Dr. Boulden said the discograms were normal, but since claimant was still having symptoms, he recommended an NMRI (ex. 1, p. 8). On October 21, 1986, he said the NMRI was normal. There was nothing from the structural point of view to keep claimant from working. The real key to his back is lifting properly with the proper biomechanic technique He concluded, "I have not found any type of physical impairment problems to be addressed to his issue." (Ex. 1, p. 9). On December 11, 1986, Dr. Boulden said claimant could benefit from a TENS for at least a month or two. After that, it would depend on his symptoms and be between claimant and the insurance company (ex. 1, p. 10). On December 17, 1986, Dr. Boulden said claimant was doing better at work, but having trouble at home sleeping at night due to his back. He reexamined him and, " ... came up with nothing clinical." Claimant, " ... had an extensive workup with negative findings." He ended this letter as follows: At this point in time, I really can't state whether he has had an aggravation of a pre-existing condition since there is no structural abnormalities found in our workups. Therefore I really don't know where his pain is coming from. Therefore it is hard for me to make recommendations on cause and effect here. (ex. 1, p. 11) On February 2, 1987, Dr. Boulden reported, " I do not feel that there has been any type of permanency because of the injury." (Ex. 1, p. 12). Dr. Boulden gave a deposition on June 18, 1987. His very respectable curriculum vitae is attached as deposition exhibit 1. It shows that he is a board certified orthopedic surgeon with staff privileges at Lutheran, Mercy, Charter, Methodist and Broadlawns Hospitals. Dr. Boulden described the discogram he took in these words: Q. What is the discogram? HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 8 A. Discogram is where we put a needle inside the disk under x-ray control and we put dye into the disk. The idea is to see if a disk will cause the patient to have pain and if it's the same pain that he's been living with. A normal disk will not cause discomfort but an abnormal disk should cause discomfort and also reproduce the patient's pain if that's the source of his pain. *** Q. What did you conclude from the discogram? A. We were able to do discograms at L3-4 and 4-5 which did not cause the patient to have any pain at all. We were unable to get a needle into the L5-SI disk space because of the position of his disk in his spine. We did, however, note that during the attempt to try and inject the disk at L5-Sl we kept hitting his facet joint that kept causing him to have the pain he was having. In other words, we felt after checking this out that his pain was probably coming from the facet joints in his back and felt that his pain was probably more to a mechanical type of pain, in other words, a stress-induced type of situation rather than a structurally abnormal problem. (ex. A, pp. 8, 9, 11 & 12) The MRI performed on October 17, 1986 completely ruled out any structural problem in claimant's lumbar spine including L5, S1 which could not be discogrammed (tr. pp. 14-17). Dr. Boulden concluded, "Basically my feeling was that his back was weak and that he probably used it abnormally." The doctor recommended a good exercise rehabilitation program and possibly a work hardening program. The only restrictions would be to use his back properly by which he meant no, "...bending, lifting or twisting with his back either repetitively or for heavy unnatural loads as well as prolonged sitting. " (ex. A, pp. 17 & 18). For back relief while sleeping, he advised claimant to sleep in the prenatal position on a firm mattress (ex. A, p. 20; Ex. 1, p. 11). Dr. Boulden than ordered laboratory tests to determine if claimant had some kind of underlying systemic disease, in particular, rheumatoid arthritis. All of these several laboratory tests were within normal limits (ex. A, pp. 19-23). Dr. Boulden opined that claimant had not sustained any permanent injury or disability as a result of his employment with employer because nothing could be found objectively either clinically or through diagnostic testing (ex. A, p. 23). HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 9 The MRI done on October 17, 1986 showed, "normal appearance of lumbar spine .... No evidence of disc degeneration. The neural foramina appear normal. Impression: Normal MRI of the lumbar spine." (ex. A, deposition ex. 10; ex. 1, p. 43). Dr. Boulden said his final diagnosis would be low back pain, etiology undetermined (ex. A, p. 25). Dr. Boulden granted that the incident in December 1984 or the incident in July 1986, might weaken or aggravate his back condition (ex. A, p. 25). However, objective tests disclosed no altered structure pathology (ex. A, pp. 26-29). His work could cause him to have irritation if its abnormal stress (ex. A, p. 29). Dr. Boulden said, "Once again, use the term weakened back. I guess it's a back that I'd say that is aggravated easily. Especially if you do abnormal things to it." (ex. A, p. 30). The doctor acknowledged that if claimant had no symptom complex and no complaints until December 1984, then that could, " ... play a role into the fact of his system complex at this point." (ex. A, p. 30). Claimant last saw Dr. Boulden in the fall of 1986 (tr. p. 39). Claimant reported, by his own choice, to Iowa Methodist Neighborhood Clinic on April 16, 1986, with complaints of low back pain and was diagnosed by Matthew A. Manning, M.D., as having low back syndrome (ex. 1, pp. 34 & 35). On December 8, 1986, claimant was seen at the Iowa Methodist Neighborhood Clinic, by his own choice, for complaints of low back which he stated originated in December of 1984. He was examined by Thomas Evans, M.D., and diagnosed as chronic back pain (ex. D; Ex. 1, p. 36). Claimant was next seen on February 13, 1987, and diagnosed by Dr. Wirtz for: (1) continued lumbar disc degeneration, low back pain and (2) radicular symptoms, left leg intermittent. He was to continue to work, but restricted from heavy strenuous twisting and pulling activities (ex. C, p. 5). On August 12, 1987, Dr. Wirtz reported that claimant exacerbated his lumbar disc degeneration doing light work without heavy strain and ordered medication and physical therapy again for him (ex. C, pp. 6 & 31). He had continued muscular strain, lower back, possible disc degeneration reported by Dr. Wirtz on August 19, 1987. An x-ray showed narrowing of L4, L5 (ex. C, p. 6). on September 2, 1987, Dr. Wirtz said: This patient's history 8/12/87 is noted to be symptomatic in the last month indicating as early as 7/l/87. This patient's back condition which is intermittently symptomatic is related to those incidents at the time of the development of the symptoms. HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 10 After an extended period of time without symptoms it would be said that any one initiation would be cleared. Repeated episodes in the distant future will cause symptom producing conditions unrelated to present conditions. (ex. C, p. 32) The final report from Dr. Wirtz dated September 22, 1987, reads as follows: It is noted that the symptoms recurred in July, 1987 and the resulting physical findings showed limitation of back flexion whereas his neurological exam continued to be normal. Similar findings 8/19/87 as to limitation of motion of his back and x-ray showed narrowing at the L4/5 disc space. This patient's diagnosis continues to be lumbar disc degeneration with an acute musculoskeletal strain superimposed. It is anticipated that this will require further conservative management to alleviate these symptoms. (ex. c, P. 33) Claimant was seen at Orthopedic Associates on December 23., 1985, for a second opinion. No examining physician's name is indicated on the report or the exhibit list. That office note concludes as follows: X-RAYS: Lateral lumbosacral spine is essentially within normal, do not see much in the way of narrowing of disc interspaces. DX: By history and examination, it appears that this man has back pain and a left sciatica probably secondary to mild disc herniation at L4-5, certainly not a rupture. PLAN: We discussed that as long as he's able to manage without surgery this would be the route to go. Should there be increasing amount of pain radiating down into the leg, then I think it would be advisable to maybe repeat the myelogram and CAT scan and think about the HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 11 laminectomy and diskectomy. (ex. 1, p. 3) Claimant was examined and evaluated by Martin S. Rosenfeld, D.O., an orthopedic surgeon, on January 12, 1988, who traced claimant's treatment history. Claimant complained of, "...back pain with radiation to the left lower extremity down into the foot, mostly into the medial big and second tows .... He, especially, has difficultly [sic] sleeping at night because of pain and tingling." Dr. Rosenfeld made the following findings: Films of the lumbar spine are reviewed. These are essentially normal. There is noted a question of disc degeneration on office notes supplied with the patient from Drs. Wirtz and Boulden, but no gross abnormalities are noted at this time. Impression: Acute and chronic facet syndrome of the left with myofacial strain. At the present time his restrictions include a twenty (20) pound weight lifting limit, no prolonged standing, no prolonged sitting, and no pushing or pulling. He is restricted to a job where he can sit or stand and move about freely as necessary being able to use proper body mechanics. I feel that he does have a permanent impairment in view of a lower lumbar sprain with spasm, some rigidity, and pain without marked lipping or arthritic change on his x-rays. This would rate him at a five (5) percent permanent physical impairment to the body as a whole. The Guide I used for evaluation is the Manual for Orthopaedic Surgeons in Evaluating Permanent Physical Impairment published by the American Academy of Orthopaedic Surgeons. Further treatment would include facet joint injection and/or epidural steroid injection to relieve the spasm in the low back area as well as continued exercise program to strengthen and straighten the low back. (ex. 1, p. 2) Claimant testified that after the July 1986 episode, his symptoms have not changed (tr. p. 33). Claimant testified that the incident of July 21, 1986, of grabbing for the falling meat, was just a continuation of the pain that occurred in December of 1984 (tr. p. 34). Claimant testified (tr. pp. 36-39) and the records show that claimant was discharged by employer on January HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 12 22, 1987, for three unexcused absences (exs. E-L). The last day he worked was January 8, 1987. Claimant related that he tried to work after that at Oscar Mayer for one week and Iowa Pack for two weeks, but was unable to do the work due to his back (tr. p. 40). He tried a job unloading paper products and he could not do that 18 hours a day because he got too tired. Claimant was self-employed at the time of the hearing as a window installer in apartment buildings (tr. pp. 41 & 42). His left lower back still gets stiff now and then (tr. p. 42). He can no longer play sports such as basketball or baseball, he cannot fish, to run makes his back hurt. Claimant said that his biggest problem is that he cannot sleep at night. The other thing is inability to be active or be physical with his children. He only sleeps two or three hours per night and then wakes up. He put pillows behind his back, and keeps changing from the couch to the floor to the chair (tr. p. 46). Claimant identified the Mercy Hospital bill, in the amount of $172.31, for a visit to the emergency room on July 21, 19861 when he felt pain after reaching for the piece of meat that fell off the table (ex. 2, p. 1). The hospital was going to admit him because he was in such severe pain, but when they called Dr. Wirtz, the doctor insisted that they send him home. He saw Dr. Wirtz the next day. This hospital bill has never been paid (tr. pp. 47 & 48). Claimant identified a bill from Methodist Hospital, in the amount of $67.90, for being seen in the emergency room, at 12:08 p.m. on September 8, 1987, after he woke up with low back pain radiating down his left leg (ex. 1, pp. 32 & 33; ex. 2, p. 2; tr. pp. 48 & 49). Claimant identified a bill from Wilden Hospital, in the amount of $20, as an occasion when he walked into their emergency room on August 14, 1986 on his own just to see what they would say. He paid that bill himself (ex. 2, p. 3; tr. p. 49). Claimant identified a bill from Dr. Hatchitt, his family physician, for December 13, 1984, in the amount of $21. Claimant said he just went there on his own because he was having back pain (ex. 2, p. 4; tr. pp. 49 & 50). Claimant identified a bill from Mid-Central Medical Limited in the amount of $101.92 as a charge for a TENS unit, ordered by Dr. Boulden, that L.P.T. Halverson instructed him how to use (tr. p. 50; ex. 2, p. 5). All of these expenses are itemized on one sheet of paper (ex. 2, p. 6). HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 13 Claimant presented a correctly calculated statement of his mileage expenses in the actual amount of $171.30. He testified he had never been reimbursed for these expenses even though he had presented the statement for payment to the insurance carrier (ex. 2, pp. 7 & 8). Back up support for these trips was also introduced into evidence (ex. 2, pp. 9-11). Claimant admitted that he knew that Dr. Hoffmann, Dr. Wirtz and Dr. Boulden were the employer authorized doctors. He conceded that he did not ask for permission to see Dr. Hatchitt or to go to the emergency rooms at Mercy, Methodist and Wilden. He admitted that he did not get authorization to see Dr. Hatchitt through employer. Claimant granted that after he was terminated by Swift, he applied for unemployment compensation and that he was required to certify that he was ready, willing and able to work. Claimant acknowledged that there were no witnesses to his accident on December 11, 1984, but that was because he worked alone. Claimant agreed that since he was terminated by employer, in January 1987, he has had discomfort, but has not found it necessary to seek medical treatment for it (tr. pp. 54-59). Claimant testified that this is because he has not been required to do real hard work (tr. p. 39). Also, he has not had any flare-ups like he had when he was still working (tr. p. 41). Claimant denied that he was currently authorized to see Dr. Wirtz or Dr. Boulden. He was refused permission by the insurance carrier to see Dr. Wirtz just eight months ago, but he did not have it in writing (tr. pp. 60-62). 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(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 11, 1984, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The claimant has the burden of proving by a preponderance of the evidence that the injury of December 11, 1984, is causally HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 14 related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967) . While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury on December 11, 1984, which arose out of and in the course of employment with employer. Claimant described a slip and fall on the icy floor of a truck that had just been washed. He related, " ... as soon as I hit the ground, I felt something in my back, felt like it tore or something. As soon as I got up, I went straight to the office and told Mel that I had fell and hurt my back." (tr. p. 24). Defendants assert that the accident was not witnessed. Claimant replied that he worked alone, by himself, on this job and there were no witnesses available to see the accident. Claimant testified that he reported the accident immediately to Mel. Defendants introduced no testimony from Mel to contradict or controvert claimant's sworn testimony at hearing either by way of a statement (sworn or unsworn) taken by an accident investigator, by deposition, or by live testimony. Nor did defendants offer any explanation for not offering such testimony. HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 15 Claimant further testified that later in this same shift he was required to throw 150 boxes of meat weighing 75 pounds each overhead and that he was unable to get any assistance from his supervisor, Mel. This testimony is not controverted. Claimant saw Dr. Hatchitt his personal physician, two days later on December 13, 1984, giving this accident as the history for his back and leg complaints and claimant was taken off work from December 12, 1984 until December 17, 1984 (ex. 1, pp. 27 & 29). Dr. Hatchitt reported, "Fell at work in Semi - landed on buttocks [sic]." (ex. 1, p. 27). Employer sent claimant to see Dr. Hoffmann on January 1, 1985. Claimant gave the same history for his complaints. Although Dr. Hoffmann's records are confusing, he cleared up matters by stating on March 14, 1985, that there was only one fall on or about December 12, 1984. Dr. Hoffmann referred claimant to Dr. Wirtz, who proceeded to treat, and continued to treat claimant for two years, based on the history of this accident as the initial precipitating factor for claimant's complaints. Dr. Wirtz' first office note states, "A twenty-three year old injured at work." (ex. C, p. 1). Claimant denied any previous injuries or back problems and this testimony was not controverted. An x-ray for claimant's pre-employment physical examination on August 10, 1984, just three months prior to this injury, showed a normal lumbar spine (ex. 1, p. 37). Claimant consistently gave this accident as the history to all of the physicians that saw him at different times over the course of his treatment, i.e., Dr. Hatchitt, Dr. Hoffmann, Dr. Wirtz, Orthopedic Associates, Dr. Boulden, Dr. Manning, Dr. Evans, and Dr. Rosenfeld. Claimant's testimony is not controverted, contradicted, rebutted or refuted by any evidence or any argument on the part of defendants, except for the immaterial assertion that the accident was not witnessed. Claimant afforded defendants the opportunity to controvert his testimony by calling Mel, his supervisor, as a witness, but defendants did not capitalize on this opportunity, nor did they attempt to explain why they did not or could not. Therefore, it is determined that claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury on December 11, 1984, that arose out of and in the course of his employment. Claimant did not sustain the burden of proof by a preponderance that he sustained a permanent injury caused by the accident on December 11, 1984. Dr. Hatchitt did not express an opinion on this point, which is understandable, since he only saw him briefly and he is not a specialist in orthopedic surgery or neurosurgery (ex. 1, p. 27). Dr. Hoffmann's x-ray of the lumbosacral spine was good in all projections with no evidence HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 16 recent injury or other bone pathology seen (ex, 1, p. 57). The bone imaging was also normal (ex. 1, p. 53). Dr. Hoffmann stated, "...this injury will probably be temporary in nature, and in any case, it would warrant medical care and some lost time." (ex. B, p. 2). Dr. Wirtz examined and treated claimant extensively over a two year period and appeared to be very sensitive and responsive to claimant's complaints of pain in his back and down his left leg. He prescribed a 30 pound weight lifting restriction (ex. c, pp. 16 & 17), recommended a job change to lighter work (ex. C, pp. 3 & 19), and restricted him from strenuous twisting and pulling activities (ex. C, p. 5). He provided claimant with extensive physical therapy and two back braces. Nevertheless, on the point of permanent impairment, Dr. Wirtz stated on January 21, 1985, that his condition was temporary in nature (ex. C, p. 9). On January 31, 1985, claimant was released to return to work with a full range of motion and no neurologic deficits. He said the fall caused an injury that was temporary in nature (ex. C, p. 9). On January 31, 1985, Dr. Wirtz stated that, "This musculoskeletal strain to the back area has not left him with any permanent impairment as related to this accident that occurred in December of 84.11 (ex. C, p. 10). Claimant returned to work and could pull and flip 100 pounds. When claimant had a flare-up on August 22, 1985, Dr. Wirtz called it a, "temporary aggravation" (ex. C, p. 12). Dr. Wirtz believed that claimant had lumbar disc degeneration that had been and would continue to be intermittently symptomatic, but related to those incidents at the time of development of the symptoms (ex. C, pp. 32 & 33). Dr. Wirtz never did say or imply that claimant had sustained a permanent impairment from this injury. He did impose a weight lifting restriction and work activity restrictions, but Dr. Wirtz never did say that these restrictions or limitations were caused by the injury of December 11, 19841, but on the contrary he indicated they were due to claimant's degenerative lumbar disc condition (ex. C, pp. 32 & 33). Although claimant had a one time visit to Orthopedic Associates, Dr. Manning and Dr. Evans, none of them found a permanent impairment. This is understandable with Dr. Evans and Dr. Manning because they only saw him one time on an emergency basis for flare-ups. However, Orthopedic Associates was an evaluation and their x-rays were essentially normal and that doctor, whoever he was, did not, " ... see much in the way of narrowing of disc interspaces." (ex. 1, p. 3). Claimant asked for alternative care after the incident on July 21, 1986 where he grabbed for a piece of falling meat and HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 17 suffered increased symptoms in his back and left leg. Dr. Boulden examined old CAT scans and found no evidence of disc problems (ex. 1, p. 5). Claimant did not have an operative lesion (ex. 1, p. 7). He prescribed a TENS unit and physical therapy. Claimant accepted the TENS unit, but according to L.P.T. Halverson, he failed to show up for the physical therapy (ex. 1, p. 13; Ex. A, p. 14). Dr. Boulden took discograms and an MRI which were all normal (ex. 1, p. 8 & 9). Dr. Boulden said he did not know where claimant's pain was coming from; there were no structural abnormalities in his workups; he said it was hard to make recommendations on cause and effect in this case (ex. 1, p. 11). On February 2, 1987, he said, "I do not feel that there has been any type of permanency because of the injury." (Ex. 1, p. 12). The MRI on October 17, 1986, ruled out any structural problem including the L5, Sl interspace which could not be discogrammed (tr. pp. 14-17). Dr. Boulden did agree with claimant's counsel that the injury of December 11, 1984, could play a role in his current symptom complex at this point, but basically he said it was his feeling that, "his back was weak and that he probably used it abnormally." (ex. A, p. 17). All of claimant's laboratory tests were within normal limits (ex. A, pp. 19 & 23). Dr. Boulden did agree that claimant should be restricted to no repetitive bending, lifting, or twisting and no prolonged sitting, but he definitely did not say or even imply that these restrictions were caused by the injury of December 11, 1984. On the contrary, he indicated that the etiology of claimant's back and leg pains was undetermined or unknown and he was unable to testify on a cause and effect relationship, but if pressed for an opinion, he believed claimant had a weak back and he used it abnormally. Dr. Rosenfeld diagnosed acute and chronic facet syndrome on the left with myofacial strain. He said that using the Manual for Orthopedic Surgeons, he found 5 percent permanent impairment in view of the lumbar sprain with spasm, some rigidity, and pain without marked lipping or arthritic changes on his x-rays. He imposed a 20 pound weight lifting restriction and no prolonged standing or sitting and no pushing or pulling. Dr. Rosenfeld, however, did not make a specific statement on whether the acute and chronic facet syndrome and myofacial strain was caused by the injury of December 11, 1984, or whether it was due to some other cause or whether he, like Dr. Boulden, did not know what caused it. His evaluation was made over three years after the initial injury based on one examination. Dr. Wirtz had returned claimant to work on January 31, 1985, with a full range of motion and no neurologic deficits (ex. C, p. 10). Claimant testified that he returned to work and could pull and flip 100 pounds until August of 1985 (tr. pp. 28 & 29). HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 18 Consequently, after reviewing all of the doctors who treated or examined claimant, Dr. Hatchitt, Dr. Hoffmann, Dr. Wirtz, Dr. Evans, Dr. Manning, Dr. Boulden, not one can be found who stated that the injury of December 11, 1984, was the cause of any permanent impairment. Dr. Wirtz and Dr. Boulden did not even find any permanent impairment from this injury or from any other cause. Furthermore, if Dr. Rosenfeld had used the Guides to Evaluation of Impairment, published by the American Medical Association, it is questionable whether any permanent impairment could be found for sprain with spasm, rigidity, and pain without marked lipping or arthritic changes. Even though all of the doctors, orthopedic surgeons, recommended restrictions none of the doctors stated that the restrictions were caused by the injury of December 11, 1984. Claimant has not sustained the burden of proof by a preponderance of the evidence that the injury of December 11, 1984 was the cause of permanent impairment. None of the doctors questioned that claimant had pain, especially at night, that disturbed his sleep, but none of the doctors said it was caused by the injury of December 11, 1984. Iowa Code section 85.27 provides that employers shall provide "reasonable" medical care and have the "right to choose the care." However, defendants refused to pay for the office call of Dr. Hatchitt on December 13, 1984, two days after the injury in the amount of $21 (ex. 2, p. 4; ex. A, p. 27). Defendants denied liability for the injury in the answer filed June 18, 1986. Defendants specified that liability for an injury was disputed at the time of the prehearing conference on April 27, 1988. Liability for injury is designated as a hearing issue on the hearing assignment order dated April 29, 1988. Liability for the injury is designated as a.disputed issue on the prehearing report dated November 7 1988. The long-standing precedent of this agency is that defendants cannot dispute liability for the injury and at the same time be entitled to choose the medical care. Barnhart v. MAQ,. Inc., I Iowa Industrial Commissioner Report 16, (Appeal Decision 1981); Kindert v. Ft. Des Moines Hotel, Vol. I, No. 3 State of Iowa Industrial Commissioner Decisions, 611 (Appeal Decision 1985); Hameister v. Park View Manor, file no. 721585 (Appeal Decision October 31, 1986); Mason v. Thermo-Gas, file nos. 819978 & 816116, (Appeal Decision filed July 28, 1989). Defendants argue that they are entitled to deny liability, but still retain the right to choose the care if they voluntarily authorize care. Defendants contend they only loose the right to choose the care if they both deny liability and do not authorize care. This is incorrect and is clearly wrong in view of Barnhart, Kindert, Hameister and Mason cited above. The purpose HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 19 of allowing defendants to choose the care is because they are responsible for the outcome of the care. If they choose good care, then their ultimate liability for disability is possibly reduced. If they choose poor care, their ultimate liability for disability may well be increased. In this case, defendants wanted the best of both worlds for various reasons. Admittedly they chose good doctors and claimant received good care. At the same time, defendants, without any liability exposure, tried to control and did control what care claimant received and what care he did not receive. For instance, when claimant went to the emergency room at Mercy Hospital after the incident on July 21, 1986, the emergency room personnel were ready to admit him to the hospital for treatment, but the company selected doctor, Dr. Wirtz, told them to send him home. In addition, defendants, since they are paying the doctors, retain a measure of control over them. In litigated and controverted matters, doctors and other forensic expert witnesses tend to favor the side that retains them. Accordingly, in an area that is subject to an opinion that is not clearly black and white, defendants are in a position to direct the doctor to render the opinion that most favors their side of the case. There are a number of other matters that medical specialists can do or not do, say or not say, that can influence the outcome of a case. Also, even though they are not legally entitled to do so, (Pote v. Mickow Corporation, file no. 694639 filed June 17, 1986) employers and insurance carriers do control what tests or treatment are administered to the employee-patient and what tests or treatment are denied to the employee-patient. For instance, in this case, Dr. Boulden wanted an MRI, which was his decision to make as the treating physician, but he felt that he was unable to do so until he received permission from the insurance company. Therefore, the actions of Dr. Wirtz and Dr. Boulden described above clearly show why the industrial commissioner has determined and continues to determine that it is not logical, or fair and just, that defendants can deny liability on the one hand and guide the course of treatment on the other. Barnhart, Kindert, Hameister, and Mason. Claimant's only obligation after defendants denied liability, which goes back to when they refused to pay for Dr. Hatchitt's office visit on December 13, 1984, was to seek only reasonable care and care for conditions caused by the injury which occurred on December 11, 1984. The appeal decisions in Barnhart, Kindert, Hameister, and Mason, are further supported by the provisions of Iowa Code section 86.13, first unnumbered paragraph, which provides that weekly compensation payments, "do not constitute an admission of HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 20 liability". Even though the statute does not specifically refer to medical payments, it has been the position of this agency that the payment of medical expenses on the part of the employer is not an admission of liability in order that the humanitarian goals of the workers' compensation statute can be carried out, i.e., claimant can receive needed medical care, at the expense of the employer, and the employer does not forfeit the right to dispute the liability issue. If the employer has not admitted liability then employer is not entitled to choose the care. Refusing to pay for medical expenses clearly related to the alleged injury constitutes a denial of liability for the injury. The first evidence of this denial of liability was the refusal of defendants to pay for Dr. Hatchitt's office visit on December 13, 1984. The burden is on claimant to show that medical expenses are reasonable and necessary and to show that they are causally connected to the injury. Poindexter v. Grant's Carpet Service, Vol. 1, No. 1 State of Iowa Industrial Commissioner Decisions 195, 196 (Appeal Decision August 10, 1984); Auxier v..Woodward State Hospital School, 266 N.W.2d 139, 144 (Iowa 1978). It is determined that claimant is entitled to be paid for his office visit to Dr. Hatchitt two days after the injury occurred in the amount of $21, giving a history of this fall as the reason for the visit. Dr. Hatchitt told him to see the company doctor. Furthermore, even though defendants were paying Dr. Wirtz, and Dr. Wirtz was providing excellent care, it was not unreasonable for claimant to seek care for his continued sleep disturbance from his personal and family physician on January 17, 1986, when he continued to have back pain and severe sleep disturbance, in spite of Dr. Wirtz' care. Claimant's choice of one office visit to his personal physician when he was still having trouble over one year after the accident was reasonable. Dr. Wirtz was not claimant's choice of physician. If defendants had chosen to admit liability, Dr. Hatchitt would be unauthorized care. But since they chose not to admit liability, then reasonableness is the standard, and claimant's action in this instance was more reasonable than unreasonable. Claimant is entitled to payment of $16 for the office visit to Dr. Hatchitt on January 17, 1986 (ex. 2, p. 4). Claimant reached for a falling piece of meat at work on July 21, 1987 and strained his back again at 5:30 p.m. At 7:08 p.m., he reported to the Mercy Hospital Emergency Room with his wife and mother with acute pain. He told emergency room personnel this problem originated in January 1985. Claimant's trip to the emergency room under these conditions was reasonable. Defendants did not oppose the payment of this expense in their brief. HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 21 Claimant is entitled to the payment of the Mercy Hospital bill in the amount of $172.31 (ex. 2, p. 1). Claimant identified a bill from Methodist Hospital in the amount of $67.90 for a trip to the emergency room at 12:15 p.m. for chronic low back pain. However, claimant gave no explanation for why a trip to a hospital emergency room was reasonable nor does the examination of the hospital documents reveal why a trip to a hospital emergency room was reasonable on that occasion (ex. 1, pp. 32 & 33; ex. 2, p. 2). This bill is, therefore, denied. Claimant presented a bill from Wilden Hospital in the amount of $20. Claimant said he went there on his own and paid the bill himself. He just wanted to hear what that doctor would say. This bill then was not for treatment or care, but rather evaluation, and an Iowa Code section 85.39 examination is not an issue designated as a hearing issue in this case (ex. 2, p. 3; tr. pp. 48 & 49). The payment of this bill is then denied for the foregoing reason. Claimant identified a bill from MCML (Mid-Central Medical Limited) in the amount of $101.92 for a TENS unit dated August 14. Claimant said this was prescribed by Dr. Boulden. It was the unit he was instructed to use by L.P.T. Halverson. Claimant did see Dr. Boulden on August 7, 1986, and Dr. Boulden said he ordered a TENS unit (ex. 1, p[. 4). L.P.T. Halverson said she instructed claimant on the unit as Dr. Boulden directed (ex. 1, p. 13). Defendants gave no explanation for not paying this expense and did not oppose the payment of it in their brief. Defendants are ordered to pay MCML in the amount of $101.92. Claimant established the reasonableness of his medical mileage by his testimony and the calculation of it in the exhibits in the amount of $171.30 (ex. 2, pp. 7-11; tr. pp. 5053). Defendants agreed in their brief that claimant was entitled to this payment and indicated that the mileage has already been paid. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant began employment with employer in September 1984. That on December 11, 1984, claimant slipped on the icy floor of a truck he was loading with a hand-operated fork lift and fell and injured his lower back and felt pain down his left leg. HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 22 That claimant consistently gave this history to all of the doctors who saw him and that claimant's testimony to this effect at the hearing was not controverted, contradicted, rebutted or refuted by any other evidence. That claimant's pre-employment physical examination lumbar x-ray in September 1984 showed a normal spine. That claimant denied any other prior accidents or problems that affected his back and none were proven by defendants. That claimant performed a job where he worked alone and therefore, it was not possible or likely to have witnesses to the accident. That claimant reported the injury to Mel, his supervisor, immediately after the accident occurred. That claimant sustained an injury on December 11, 1984, which arose out of and in the course of employment with employer. That there is evidence from Dr. Hatchitt, Dr. Hoffmann, Dr. Wirtz, Dr. Evans, Dr. Manning, Dr. Boulden, Dr. Rosenfeld and an unknown doctor with Orthopedics Associates, and that not one of these doctors testified that this injury was the cause of any permanent impairment. That one orthopedic surgeon, Dr. Rosenfeld, did find 5 percent permanent impairment of the body as a whole based on the Orthopedic Surgeons Guide, but that he did not say what, if anything, was the cause of this impairment. That Dr. Hoffmann, Dr. Wirtz and Dr. Boulden testified that claimant's disability was temporary in nature only. That claimant presented medical bills which were reasonable treatment for this injury as follows: Dr. Hatchitt $ 37.00 Mercy Hospital 172.31 MCML 101.92 Total $ 311.23 That defendants' refusal to pay Dr. Hatchitt's bill was the first indication that defendants had denied liability for the injury. That claimant incurred medical mileage expense in the amount of $171.30. HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 23 CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant sustained an injury on December 11, 1984, which arose out of and in the course of employment for employer. That the injury was not the cause of any permanent impairment or permanent disability. That the voluntary payment of certain medical expenses by defendants while otherwise denying liability for the injury and denying other medical expenses incurred by claimant does not entitle defendants to choose the care as provided by Iowa Code section 85.27, and is not an admission of liability (Iowa Code section 86.13). That after defendants have denied an injury arising out of and in the course of employment by employer, then claimant is entitled to seek medical care of his own choice and defendants are then liable for reasonable care which is caused by the injury. That claimant is entitled to medical expenses as shown in the findings as facts in the amount of $311.23. That claimant is entitled to $171.30 in medical mileage. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant or the provider of medical services Three Hundred Eleven and 23/100 Dollars ($311.23) for the medical as expense designated above. That defendants pay to claimant One Hundred Seventy-one and 30/100 Dollars ($171.30) in medical mileage. That the costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33, including the costs of the transcript. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 24 Signed and filed this 31st day of January, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David Drake Attorney at Law 1200 35th St. STE 500 West Des Moines, IA 50265 Mr. Joseph S. Cortese, II Attorney at Law 500 Liberty Bldg Des Moines, IA 50309 51106, 51108.50, 51401, 51402.20, 51402.30, 51402.40, 51402.60, 52206, 51803, 1403.10, 2501, 2503, 2700 Filed January 31, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH HARTZER, Claimant, VS. File No. 786164 SWIFT INDEPENDENT PACKING CO.,: A R B I T R A T I 0 N Employer, D E C I S I 0 N and NATIONAL UNION FIRE INS., Insurance Carrier, Defendants. 51106; 51108-50; 51401; 51402.20; 51402.30; 51402.40; 51402.60; 52206 Claimant described a fall, reported it immediately to his supervisor, saw his own doctor two days later, and consistently gave the same history to all of the doctors. Defendants did not contradict, rebut or refute claimant's testimony. They introduced no evidence from the supervisor and did not explain why not. Defendants introduced no exhibits and called no witnesses. Claimant was determined to have sustained an injury arising out of and in the course of employment with employer. 51803 Claimant did not prove the injury was the cause of permanent impairment or disability. Claimant saw seven doctors and not one of them found any permanent impairment caused by this injury. Three doctors said the effects were only temporary. Two of those three doctors said there was no permanent impairment. Claimant's evaluator found some permanent impairment on some rather thin grounds, but failed to say it was caused by this injury, claimant's degenerative condition, or some other reason. No award was made for permanent partial disability. Claimant's evaluator gave no etiology, reasons or cause for the 5 percent permanent impairment that he found or the restrictions that he issued. HARTZER VS. SWIFT INDEPENDENT PACKING CO. Page 2 1403.10; 2501; 2503; 2700 Defendants were not correct in their contention that if they deny liability, but voluntarily provide medical care that they have the right to choose the care. Liability was considered denied when defendants refused to pay the first medical bill when claimant saw his own doctor for what was obviously treatment for this fall two days after it occurred. Agency precedent is that it is not logical, fair or just, for defendants to deny liability and at the same time choose the care citing, Barnhart, Kindert, Hameister, and Mason. When defendants deny liability, claimant's only obligation is to seek reasonable care caused by the injury. Some of claimant's bills were allowed and some were not allowed as reasonable care. one bill was an evaluation and section 85.39 was not a designated hearing issue and so no determination was made for the evaluation.