BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ RICHARD BREWER, : File Nos. 796082 : 922371 Claimant, : 926607 : 1025784 vs. : : HY-VEE FOOD STORES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Richard Brewer, claimant, against Hy-Vee Food Stores, employer, and Employer Mutual, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of injuries sustained on May 21, 1985; June 29, 1989; August 8, 1989; and February 25, 1992. This matter came on for hearing before the undersigned deputy industrial commissioner on February 3, 1994, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. The documentary evidence identified in the record consists of joint exhibits 1 through 68 in file number 796082; joint exhibits 1 through 9 in file number 922371; joint exhibits 1 through 7 in file number 926607; and joint exhibits 1 through 8 in file number 1025784. ISSUES . In file number 796082 the issue is the extent of permanent partial disability benefits, if any; . In file number 922371 the issue is the extent of permanent partial disability benefits, if any; . In file number 926607 the issue is whether claimant is entitled to ongoing medical care for a work-related back injury; . In file number 1025784 the issues are whether claimant sustained an injury to his right knee on February 25, 1992, which arose out of and in the course of employment with employer and, if so, whether the alleged injury is a cause of temporary disability during a period of recovery. Page 2 FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant testified that he was born on June 24, 1934, and completed the twelfth grade of school. He served two years in the United States Army. His primary work activity has been as a truck driver. He commenced working part-time for employer in July 1976 and in January 1982 became a full-time truck driver. This job included unloading and delivery of grocery items. On May 21, 1985, while pulling on a load of groceries, claimant slipped and fell, twisting his neck. He was initially treated at Mater Clinic in Knoxville, Iowa. Claimant testified that he participated in physical therapy while taking muscle relaxants and his condition improved. He returned to work and his condition deteriorated. On April 3, 1986, he presented to David J. Boarini, M.D., a board certified neurological surgeon. He was thought to have myofascial neck pain and was given anti-inflammatory medication and put in a soft cervical collar. Claimant's condition did not improve and a myelogram was eventually performed. According to Dr. Boarini, the myelogram revealed nerve impingement at one level from his cervical spondylosis. On January 7, 1987, claimant underwent an anterior cervical fusion at C6-7. Dr. Boarini released claimant to return to work on September 8, 1987. On November 8, 1987, he gave claimant a 6-7 percent permanent impairment rating based on the anterior cervical fusion and some residual numbness. Dr. Boarini examined claimant on April 17, 1991. Claimant presented with complaints of neck stiffness. After conducting a physical examination and reviewing cervical spine films, Dr. Boarini stated that claimant is status postcervical fusion with no residual neurological deficit but some cervical spondylosis which causes neck stiffness and pain. He stated that this is degenerative in nature and not related to any injury. He indicated that claimant did not have any new permanent or partial impairment or significant work-related injury to his neck. Dr. Boarini diagnosed cervical spondylosis which he described as degenerative arthritis in the neck. The record indicates that as early as November 30, 1986, claimant complained to Dr. Boarini regarding pain and occasional numbness in his hands. In June 1989 claimant presented to Dr. Boarini with complaints of wrist tenderness and pain. EMG studies revealed right carpal tunnel syndrome. Dr. Boarini scheduled surgery for July 5, 1989, but the insurance carrier intervened and requested a second opinion. On February 12, 1992, claimant saw John G. Ganske, M.D., for evaluation. Dr. Ganske indicated that claimant's bilateral carpal tunnel symptoms were work related and caused by strongly gripping the steering wheel for hours at a time, frequently over rough roads with vibration in the Page 3 steering wheel. He felt that claimant's symptoms were getting worse and that he needed surgery. On February 25, 1992, claimant underwent right carpal tunnel release and on March 18, 1992, he underwent the same procedure on the left. Dr. Ganske released claimant to return to work on May 4, 1992. On September 25, 1992, he examined claimant and noted improved grip strength and 100 percent range of motion of his hands with resolution of preoperative symptoms. Dr. Ganske indicated that claimant had no permanent partial disability related to his carpal tunnel syndromes. However, Dr. Boarini testified in a deposition that he would assign an impairment rating between 0 and 2 percent for successful carpal tunnel release. Nevertheless, he admitted that he had not examined claimant since June 29, 1989, and was not aware of the results of claimant's 1992 surgeries. Claimant was seen by S. Randy Winston on December 11, 1992, for an independent medical examination. He assessed a 2 percent permanent impairment to the upper extremities due to mild residual weakness in the right hand. On August 18, 1989, claimant twisted his back while unloading pallets. He was diagnosed with low back strain and released to return to work on August 21, 1989, by Laurence K. Rasmussen, M.D. Claimant presented to Joshua D. Kimmelman, D.O., on June 30, 1992, with complaints of right knee pain. On July, 9, 1992, he presented a leave of absence form to his employer in which he indicated that on June 16, 1981, he got kicked in the knee by a calf while moving cattle and has aggravated his knee on numerous occasions since then. Claimant was unable to otherwise pinpoint the date of an accident or the first appearance of symptoms. Dr. Kimmelman thought he had a medial meniscus tear and scheduled him for an operative arthroscopy. This was accomplished on July 10, 1992, at which time a partial medial meniscectomy was carried out. Claimant was off work from July 10, 1992 through August 24, 1992, when Dr. Kimmelman released him to return to work full time as a truck driver. Claimant's medical bills were paid by the group health carrier because claimant reported the injury as nonwork related. It was Dr. Kimmelman's opinion that claimant's knee problems were the result of normal wear and tear of weight bearing stress and not pushing on the pedal of a truck. CONCLUSIONS OF LAW In file number 796082 there is no dispute that claimant sustained an injury to his neck on May 21, 1985, arising out of and in the course of employment with employer and that such injury resulted in temporary and permanent disability. Claimant was paid healing period benefits and 32.5 weeks of permanent partial disability benefits based on Dr. Boarini's impairment rating. Claimant wants an assessment of industrial disability because he feels that he is entitled to more than he was paid. Functional impairment is an element to be considered in determining industrial disability which is the reduction of Page 4 earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. 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. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 dis ability 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the Page 5 disability bears to the body as a whole. Section 85.34. The record does not support claimant's contention. Claimant was released to return to work on September 8, 1987, by Dr. Boarini. No physical restrictions or limitations were imposed. Dr. Boarini testified in a deposition on November 16, 1992. When asked whether he found any new permanent partial impairment to claimant's neck on April 26, 1991, he responded that he did not. When further asked whether he would impose any restrictions with regard to his neck, he commented as follows: He has an arthritic neck, and it may be that it will become symptomatic -- more symptomatic the older he gets; and he may eventually need some restrictions in terms of what he can lift because of symptoms from the arthritic neck. I did not give him any based upon his surgery or how he was in 1991, but he may need some in the future. Claimant returned to his usual and customary job with employer in September 1987 and performed his job without incident until problems with his hands and wrists surfaced in 1989. Nevertheless, testimony elicited from claimant shows that his wages with employer have been in the $38,000 to $43,000 range between 1989 and 1993. Claimant's neck injury has not increased his industrial disability. Claimant has not shown by a preponderance of the evidence that he is entitled to additional permanent partial disability benefits as a result of his work-related neck injury on May 21, 1985. In file number 922371 claimant alleges bilateral hand problems since June 29, 1989. At the hearing, defendants admitted liability for the injury and also admitted that such injury caused claimant temporary disability during a period of recovery. However, they deny that claimant's bilateral hand/wrist problems have caused permanent impairment. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be Page 6 accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A wrist injury is an injury to the hand, not the upper extremity. The hand extends to the distal end of the radius and ulna, including the carpus or wrist. Elam v. Midland Mfg., II Iowa Industrial Commissioner Report 141 (App. 1981). Dr. Ganske, claimant's treating surgeon, emphatically states that, "There will be no permanent partial disability related to his carpal tunnel syndromes and I will see him back only if he has any further questions or problems." Claimant returned to his usual and customary occupation as a truck driver on May 4, 1992. He worked without restrictions or limitations. He worked without incident until he was taken off work in July 1992 for surgical repair of his right knee. There is no evidence to dispute Dr. Ganske's assessment that claimant's bilateral carpal tunnel releases have produced no permanent impairment. Claimant never returned to Dr. Ganske with questions or problems. In file number 926607 claimant alleges an injury to his back on August 8, 1989, which arose out of and in the course of employment with employer. Defendants have admitted liability in this case and have paid all of claimant's medical benefits. Claimant is not requesting temporary or permanent benefits in this claim, therefore, there are not unresolved issues to decide. In file number 1025784 claimant alleges that he sustained a right knee injury on February 25, 1992, arising out of and in the course of employment with employer. Defendants deny liability of this claim. Claimant requests a decision as to defendants' compensability and an award of temporary total disability benefits during his time off work from July 10, 1992 through August 21, 1992. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 25, 1992, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. 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 the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. Page 7 The supreme court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers Compensation 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. The injury to the human body 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 Almquist court further observed that 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. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do 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. The supreme court has also recognized that a cumulative injury may occur over a period of time. The injury in such cases occurs when, because of pain or physical disability, the claimant is compelled to leave work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). Moreover, claimant's last employer becomes liable for the cumulative injury, even if the incidents that lead to the ultimate injury do not occur while a claimant is employed with the last employer. McKeever, 379 N.W.2d at 376; See also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 434-35 (Iowa 1984). Claimant does not allege a specific work injury nor does he allege a cumulative injury. Claimant, who has more than a passing familiarity with the workers' compensation system, requested a leave of absence from employer to treat a nonwork-related knee injury. Claimant's group health insurance plan paid his medical bills. Claimant never told Dr. Kimmelman that he felt his knee problems were a result of pushing on the pedal of his truck. In fact, the history he related indicates that he got kicked in the knee by a calf while moving cattle in June 1981 and has had numerous aggravations since then. In any event, Dr. Kimmelman attributes claimant's knee problems to normal wear and tear of weight bearing stress on his knee rather than nonweightbearing stress of pushing on a truck pedal. Accordingly, claimant has not met his burden of proof. He has not shown by a preponderance of the evidence that he sustained an injury to his right knee on February 25, 1992, Page 8 which arose out of and in the course of employment with employer. ORDER THEREFORE, IT IS ORDERED: In file number 796082: Claimant takes nothing further from these proceedings. In file number 922371: Claimant takes nothing further from these proceedings. In file number 726607: Claimant takes nothing further from these proceedings. In file number 1025784: Claimant takes nothing further from these proceedings. The costs of these actions are assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ________ day of February, 1994. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Dahl Attorney at Law 974 - 73rd St, STE 16 Des Moines, Iowa 50312 Mr. James Tichenor Attorney at Law 4044 SE 14th St Des Moines, Iowa 50320-1673 Mr. Marvin Duckworth Attorney at Law 2700 Grand Ave STE 111 Des Moines, Iowa 50312 51803 51801 Filed February 15, 1994 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ---------------------------------------------------------------- RICHARD BREWER, File Nos. 796082 922371 Claimant, 926607 1025784 vs. HY-VEE FOOD STORES, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL, Insurance Carrier, Defendants. ---------------------------------------------------------------- 51803 In file number 796082 claimant sustained work-related injury on May 21, 1985. He was awarded 6.5 percent permanent partial disability benefits based on his treating surgeon's 6-7 percent permanent partial disability impairment rating. Claimant requests additional industrial disability. Claimant was released to return to work on September 8, 1987, without any medical restrictions or limitations. Claimant returned to his job as a truck driver with employer and performed all of the duties required and those which he had performed prior to surgery. Claimant worked without incident until February 1992 when he underwent bilateral carpal tunnel release. In file number 922371 claimant underwent bilateral carpal tunnel release in February 1992 as a result of an alleged work injury in June 1989. Claimant's treating surgeon released him to return to work in September 1992 with no physical restrictions or limitations and no permanent disability. 51801 In file number 1025784 claimant alleges a work-related injury to his right knee on February 25, 1992. Statements made by claimant to his treating surgeon indicate that his injury was nonwork related. Claimant did not meet his burden of proof and his injury was determined not to be a compensable workers' compensation injury. In file number 922607, claimant sustained a back injury on August 8, 1989. Defendants admitted liability and paid all of claimant's medical bills. Claimant is not requesting temporary or permanent workers' compensation benefits, Therefore, there are no unresolved issues to decide. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES H. SOPPE, : : Claimant, : : vs. : : File No. 796271 ENERGY MANUFACTURING COMPANY,: : A P P E A L Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : 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 February 15, 1990, is affirmed and is adopted as the final agency action in this case, with the following additional analysis: A cause is proximate if it is a substantial factor in bringing about the result. It need be only one cause of the result; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). The work incident or activity need not be the sole proximate cause if the injury is directly traceable to the work incident or activity. Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). Defendants make much ado out the fact that the opinions of Drs. Turner and LaMorgese relating claimant's condition to his work activities was based on the history claimant gave each physician. They speculate that nonwork activities might well have contributed to claimant's condition and that the doctors had no awareness of any such activities. Defendants offer no evidence of any nonwork activities which might have caused claimant's injury, however. Given the lack of evidence of such activities, it cannot be presumed that they existed. Furthermore, our experience is that physicians, in taking a history, ask about a variety of claimant's life activities. Certainly, had nonwork activities existed which the physicians felt on questioning claimant while taking his history were possible contributing causes, the physicians would have recorded such activities. Hence, defendants' contention appears to be factually unfounded. Furthermore, the record clearly shows that the physicians Page 2 believed claimant's work activities were a substantial factor in producing claimant's injury and subsequent disability. Therefore, even had nonwork activities existed, the work activity as a substantial factor would still be a proximate cause of claimant's injury and of defendants' ensuing liability. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. John L. Riccolo Attorney at Law Suite 1140, The Center 425 Second Street SE Cedar Rapids, Iowa 52401 Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street P.O. Box 339 Davenport, Iowa 52805-0339 9999 Filed November 25, 1991 BYRON K. ORTON MGT before the iowa industrial commissioner ____________________________________________________________ : JAMES H. SOPPE, : : Claimant, : : vs. : : File No. 796271 ENERGY MANUFACTURING : COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed February 15, 1990, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES H. SOPPE, Claimant, File No. 796271 vs. A R B I T R A T I O N ENERGY MANUFACTURING COMPANY, D E C I S I O N Employer, F I L E D and FEB 15 1990 HOME INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by James H. Soppe against his former employer, Energy Manufacturing Company, and its insurance carrier, Home Insurance Company. The case was heard and fully submitted at Des Moines, Iowa on June 7, 1989. The record in this proceeding contains claimant's exhibits 1 through 38 and defendants' exhibits A through F. Official notice was taken of the pleadings and filings in the agency file. The witnesses who testified at hearing are Naomi Soppe, James H. Soppe, Thomas W. Magner, John Giegerich and Bil Cooper. ISSUES The issues identified for determination are whether claimant sustained an injury which arose out of and in the course of his employment on or about April 8, 1985, determination of claimant's entitlement to compensation for healing period or temporary total disability, determination of claimant's claim for compensation for permanent partial or permanent total disability (claimant asserts and relies upon the odd-lot doctrine); and, determination of claimant's entitlement to expenses of medical treatment under Iowa Code section 85.27. Claimant also seeks an award for additional compensation under the provisions of the fourth unnumbered paragraph of Iowa Code section 86.13. It was stipulated that in the event of an award, the rate of compensation is $252.03 per week and that at the time of hearing, claimant had been paid 117 weeks at the rate of $252.00 and also that all of claimant's medical expenses had been paid through the end of his treatment with Dr. Turner. The parties stipulated that with regard to the section 85.27 issue, it was only necessary for the undersigned to make a determination of liability for the treatment provided by James R. LaMorgese, M.D. It was further stipulated that claimant had not returned to work since June 3, 1985. It was stipulated that claimant was entitled to and had been paid weekly compensation running from June 3, 1985 to August 6, 1986. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. James H. Soppe is a 48-year-old married man who has been married to his wife, Naomi, for 19 years. At the time of injury they had one minor child who was still living at home with them. James H. Soppe is a 1958 high school graduate. He stated that he was an average student and has not obtained any further formal education. After high school he spent four years in the Air Force as a crash rescue firefighter. In 1962 after leaving the Air Force, claimant returned to the Worthington, Iowa area. He worked in a wood factory at Dyersville for approximately 18 months where he loaded and unloaded rail cars. He worked for an implement dealer where he performed warehouse work and drove trucks. He moved to California on two different occasions. Claimant commenced employment with Energy Manufacturing Company in 1976 or 1977. He stated that it provided the best pay and benefits available in Monticello, Iowa. Over the years he performed a number of different jobs. Claimant stated that all the jobs required lifting, bending, stooping and twisting. In the spring of 1985, claimant was bumped into the position of a material handler where he unloaded trucks and moved materials. He bid out of that job into the job of a punch press operator. Claimant stated that as a punch press operator, the position he held at the time of injury, he worked with cylinder walls. He stated that the work involved reaching to the right, picking up a cylinder wall, placing it into the press, pushing a pedal with the right foot while standing on the left foot, and then putting the cylinder off to the left side. Defendant's exhibit F, a video cassette depiction of the job is generally consistent with claimant's description, although it appears that the materials being handled were obtained from the right and were placed back to the right after the punch press operation had been performed. The video cassette appeared to depict a relatively light-weight material which was being handled and bending at the waist into a box approximately three feet high to obtain the materials to be manufactured in the press. Claimant stated that while working with cylinder walls he stooped and something snapped or popped in his back. He stated that after experiencing a sort of black-out, he regained his composure. He stated that the incident occurred in the morning, but that he worked through the day despite the fact that it bothered him. Claimant stated that he reported the incident to his foreman, Jerry Prull, before dinner time. Claimant testified that on the evening of the incident, he took a hot shower at home and had his wife put something on his low back. He stated that he worked the next day and the remainder of the week because he did not want to miss any work. Claimant stated that he had a good attendance record and did not want to miss any work so he waited until Saturday to seek medical treatment. On Saturday he sought treatment from Dr. Good. Claimant testified that Dr. Good sent him back to work and that he continued to work until the Friday prior to June 3, 1985. Claimant stated that he continued to operate the punch press and that the activities kept aggravating his condition. Claimant indicated that his work entailed continuous bending, stooping and lifting of weights which varied on a day-to-day basis but could be as high as 75-100 pounds (defendants' exhibit A, deposition exhibit 6). The employer's assessment of the punch press operator's job was that it involved frequent bending and stooping, occasional crouching, occasional lifting of weights of as much as 50 pounds, and frequent lifting and carrying of weights of no more than 10 pounds (defendants' exhibit A, deposition exhibit 7). Claimant had seen Peter J. Kennedy, D.C., on March 27, 1985 for what was described by Dr. Kennedy as minor aches and discomfort affecting the low back, shoulders and arms. Dr. Kennedy then again saw claimant during the period of time running from May 1, 1985 through May 25, 1985 for severe low back pain and numbness in the left leg. Dr. Kennedy reported that the symptoms began after an incident which occurred on April 13, 1985 and that the treatments given during May of 1985 had not produced any favorable results (claimant's exhibit 2; defendants' exhibit D, page 1). Claimant sought treatment at the Monticello Medical Center on April 13, 1985. The notes of that office visit indicate that claimant hurt his back at work two weeks ago, that claimant had pain in his lower back, that he was concerned that a change at work had made his back worse and that he had received chiropractic treatments without attaining any improvement. A note of April 20, 1985 indicates some improvement. On June 1, 1985, the notes indicate that an appointment was made for claimant to be seen by James A. Pearson, M.D., a Dubuque orthopaedic surgeon (claimant's exhibit 1, page 1). Claimant was evaluated by Dr. Pearson on June 4, 1985. Claimant was placed on a conservative program of bed rest and exercise (claimant's exhibit 3). A CT scan was performed on June 4, 1985 which was interpreted to show that at the L5-S1 level the annulus was bulging to the right and compressing the cord. At the L4-5 level, a centrally protruding disc was noted. At the L3-4 level, a moderate sized, broad based bulging annulus was identified (claimant's exhibit 5). On June 25, 1985, Dr. Pearson gave claimant a release to return to work on July 1, 1985 despite the fact that claimant was still symptomatic (claimant's exhibit 3). On June 28, 1985, claimant expressed dissatisfaction with Dr. Pearson. He then entered into treatment with James W. Turner, M.D., a Cedar Rapids orthopaedic surgeon (claimant's exhibit 1). Dr. Turner first examined claimant on July 1, 1985. Dr. Turner felt that claimant had multi-level disc disease and a probable small disc herniation at L5-S1 on the right, but that the radiographic studies did not completely correlate with the symptoms which claimant described in his legs. Dr. Turner then placed claimant into a course of conservative therapy (claimant's exhibit 6). Commencing with the report of July 2, 1985 and as also shown in notes of July 29, 1985 and August 26, 1985, Dr. Turner had indicated that claimant could return to restricted work, but that he would not release claimant without activity restrictions (claimant's exhibits 6, 7, 8 and 9). On September 27, 1985, Dr. Turner was advised by Gregory B. Goodwin that no light-duty work was available for claimant at Energy Manufacturing Company (claimant's exhibit 13). On January 2, 1986, Dr. Turner again reported that claimant had a small herniated disc, that he would not give claimant an unlimited release to return to work, and that claimant has a five percent permanent partial impairment (claimant's exhibit 16). Claimant bid for two jobs with the employer which he stated that he felt it was possible he could perform. Claimant's bids were denied on January 24 and January 31, 1986 (claimant's exhibit 17). Dr. Turner's notes indicate that on February 3, 1986 claimant had voiced complaints of increasing right leg pain. A repeat CT scan showed nerve root impingement (claimant's exhibit 7). A myelogram conducted February 12, 1986 showed the nerve root to be obliterated by an extradural defect on the right at L5-S1 as well as mild disc bulging at the L3-4 level (claimant's exhibit 19). On February 14, 1986, Dr. Turner performed a surgical excision of claimant's herniated L5-S1 disc (claimant's exhibit 18, page 2). On July 8, 1986, Dr. Turner reported that claimant would likely carry a ten percent permanent partial impairment rating (claimant's exhibit 20). On September 3, 1986, Dr. Turner reported that repetitive lifting was a cause of claimant's disc herniation, that the shift of his symptoms between his left and right legs was not an indicator of the cause of the injury, that claimant had a ten percent permanent impairment and that claimant could not resume unlimited bending and lifting (claimant's exhibits 21 and 22). Dr. Turner elaborated upon his opinions when he was deposed (claimant's exhibit 34, pages 18-26, 32-35, and 38-40). Dr. Turner felt that the herniated disc treated by Dr. LaMorgese was a progression of the bulging which had been seen in 1985 on the early CT scans. Dr. Turner attributed both disc level problems to repetitive bending and lifting at work. Dr. Turner also stated that claimant's restrictions included lifting no more than 10 or 20 pounds and then only at bench height. He stated that claimant was possibly limited in his ability to stand or sit for an entire work day (claimant's exhibit 34, page 32). After recuperating from surgery and going through a course of physical therapy, claimant started looking for work. He stated that he applied for jobs in person, including jobs such as light janitor work, grocery store or lumber yard clerk, with a cable TV company, a farm supply store, and many others. He stated that he was not offered any work and that at some places he was told they could not hire him due to his back condition. Claimant received services from Douglas Nelson, a qualified vocational consultant, but claimant stated that at no time did the vocational rehabilitation person actually assist in finding jobs leads. On October 2, 1986, the insurance carrier sent a letter to the employer which set forth the amount of reserves which had been set in this case and of the possibility of a permanent total disability award (claimant's exhibit 23). On December 8, 1986, Dr. Turner issued restrictions of standing for no more than two hours if claimant could change positions, walk or sit occasionally. Dr. Turner authorized claimant to lift as much as 30 pounds if it is done at bench or table level (claimant's exhibit 24). The employer did not offer any particular jobs to claimant. Claimant remained off work until 1988 at which time he experienced a worsening of his symptoms and began treatment with neurosurgeon James R. LaMorgese, M.D. An MRI scan which was conducted on August 9, 1988 showed herniation at the L3-4 level of claimant's spine (claimant's exhibit 27 and defendants' exhibit D, page 6). On November 23, 1988, a surgical excision of the herniated L3-4 disc was performed by Dr. LaMorgese. Dr. LaMorgese reported that claimant had a large disc herniation (claimant's exhibit 30). Dr. LaMorgese steadfastly expressed the opinion that the L3-4 disc herniation was related to repetitive trauma from claimant's employment activities (claimant's exhibit 35, pages 16-19, 33 and 38). Dr. LaMorgese stated that claimant's physical activity restrictions are unchanged from those which had been previously issued by Dr. Turner, but that claimant is not employable due to the condition of his low back because he is unable to put in an eight-hour work day (claimant's exhibits 33 and 35, pages 19-21 and 63-64). Dr. LaMorgese stated that the original back injury was a factor which predisposed claimant to have the L3-4 problem. He rated claimant as currently having a 20 percent permanent impairment (claimant's exhibit 35, page 63). On January 15, 1987, Dr. Turner had expressed the opinion that claimant was totally disabled (claimant's exhibit 25). Claimant stated that he still is afflicted with low back pain and that his left leg hurts from the kneecap on down if he pushes it. He stated that his right calf muscle tingles and that the top of the right ankle has locked up. Claimant stated that prior to his surgeries, his symptoms shifted from one leg to the other at times, but that the tingling in his right calf has been present ever since the surgery performed by Dr. Turner. He stated that the continuous left leg pain started in August, 1988. Prior to the injury claimant was earning $10.00 per hour. He stated that his current inability to work is frustrating. Claimant stated that Douglas Nelson never told him that Energy was willing to take him back to a modified position. He stated that when he applied for jobs in January of 1986, he did so on his own. Naomi Soppe, claimant's spouse, confirmed that when claimant came home from work on Monday, April 8, 1985, he complained of injuring his back, took a hot shower and that she rubbed liniment on his low back. She confirmed that he continued to work for the remainder of that week, but was getting worse and sought medical treatment. Naomi stated that during the fall of 1985 claimant's condition continued to worsen to the extent that he walked with a cane, but that after the February 1986 surgery, he could walk without using a cane. Naomi confirmed that claimant attempted to perform the exercises which Dr. Turner had recommended, but that physical therapy seemed to worsen claimant's condition rather than improve it. Naomi testified that claimant now sleeps with a pillow between his legs, that they have placed a sheet of plywood between the mattress and box springs on their bed, and that they have acquired chairs with wide arms for claimant to use to support himself. Naomi testified that a normal day for claimant involves getting up, going for a walk, sitting around, going to bed, getting up and going for another walk, more sitting around and again going to bed. She stated that on weekdays he might wash dishes, do some laundry or hang clothes on the clothesline, but that in general, he seems to feel useless. Naomi stated that at the present time claimant can walk without a cane, but still complains of numbness and a sharp biting path with exertion. She stated that traveling to the hearing in this case is the longest car trip they have taken since claimant underwent surgery and that they stopped approximately eight times in the course of the trip. John Giegerich, the former controller who also performed administrative and personnel work in April of 1985 for Energy, stated that in October, 1986, a meeting was held with claimant wherein claimant was informed he could bid on several job openings which were occurring with the company. Giegerich stated that claimant indicated he did not feel capable of performing any of the jobs in the plant. Giegerich stated that the company would have made modifications to the equipment if such had been requested. Giegerich stated that someone with more skill or seniority could outbid claimant for any particular job. Giegerich confirmed that in 1985 and 1986, it was company policy to not provide light-duty employment and that the company would not consider bringing claimant back to any job other than punch press operator. Giegerich stated that when meeting with claimant, no particular jobs were offered to claimant which were within claimant's medical restrictions. Giegerich stated that he never doubted that claimant was injured on the job and that claimant was carried on company records as being absent due to a plant injury. Daniel Droege became employed at Energy Manufacturing Company on November 2, 1987. When deposed he was the manufacturing manager, a position which essentially placed him in charge of the company. Droege stated that the employer does not dispute that claimant was injured on the job (claimant's exhibit 36, pages 4-6). He explained that a union contract controls job bidding and placements and that claimant would not be hired into a position over some other person who was otherwise equal but did not have medical limitations (claimant's exhibit 36, pages 10-12 and 15-23). Droege stated that the company would not rehire claimant if he had to sit down every one or two hours (claimant's exhibit 36, pages 19 and 20). Upon close evaluation Droege conceded that there were really no jobs in the plant which were within claimant's medical restrictions. Jerry Prull, claimant's foreman at Energy Manufacturing, stated that in April, 1985 claimant reported that his back was bothering him and that he needed to go to the doctor. Claimant did not report any specific incident of injury (claimant's exhibit 37, pages 4 and 5). Prull was unable to identify any jobs that were within claimant's medical restrictions. Claimant received vocational rehabilitation assistance from Douglas Nelson, but it was unsuccessful. When deposed, Nelson stated that he had no opinion regarding claimant's ability to obtain employment in any well-known branch of the labor market. He was unaware of any jobs claimant would be physically capable of handling in the Monticello, Iowa area (defendant's exhibit A, pages 41 and 42). Bil Cooper, a vocational consultant, became involved in claimant's case in early May of 1989. Cooper stated that the employer told him they did not want to reemploy claimant. Cooper wanted to conduct a functional capacity evaluation, but had been unable to accomplish that prior to the hearing. Cooper had explained that his planned first option had been to seek a return to work with Energy Manufacturing and that the second option was to seek job placement for claimant at other locations (claimant's exhibit 32). Thomas W. Magner, a state vocational rehabilitation counselor who also performs private consulting work, stated that in his opinion claimant is not employable on a regular basis due to claimant's pain, restrictions, education and need to change positions frequently. He found claimant to have no real transferrable skills from other employment (claimant's exhibit 31). APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 8, 1985 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 "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). 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). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 8, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (2967). Aggravation of a preexisting condition is one form of compensable injury. 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 testified concerning a noticeable worsening of his back condition occurring on April 8, 1985. There was no particular incident of substantial trauma on that day. It was described by claimant as an incident where something popped or snapped while he stooped. Claimant continued to work for approximately two months following that incident before actually being determined to be medically disabled. The last day of work could as easily be used as the date of injury as April 8, 1985 in view of the assessment of this case which has been made by Drs. Turner and LaMorgese. This case, like many which involve cumulative trauma injury, also presents incidents of activities which increased symptoms without producing actual, immediate, medically confirmed disability. The appearance and demeanor of James H. and Naomi Soppe was considered by the undersigned as they testified. The employer does not seem to actually dispute claimant's testimony regarding the events of his injury. Both Drs. Turner and LaMorgese accept claimant's medical history as a plausible cause for the condition which they treated. There is some indication in the record that claimant's symptoms may have been coming on in late March, 1985, but even if that is true it would not be inconsistent with an injury which resulted primarily from cumulative trauma as determined by Drs. Turner and LaMorgese. The injury date contained in the pleadings is not controlling where the injury results from cumulative trauma. McCoy v. Donaldson Co., file numbers 752670 and 805200 (App. Decn. April 28, 1989); DeHeer v. Clarklift of Des Moines, file number 804325 (App. Decn. May 12, 1989). It is therefore determined that James H. Soppe was injured on April 8, 1985 as he alleged. It is also determined that cumulative trauma from the activities he performed in his employment is a substantial factor in producing the disability which has afflicted claimant since June 3, 1985. James H. Soppe has not resumed employment since June 3, 1985. The record of this case fails to identify a single job in the employment market in the geographical vicinity of Monticello, Iowa which claimant is both capable of performing and obtaining. Claimant was provided with assistance from qualified vocational consultants. He has applied for jobs on his own, including jobs with this employer, but was unable to obtain any job offers. Claimant has physical impairment ratings and physical restrictions which are quite limiting from Drs. Turner and LaMorgese. Claimant has asserted the odd-lot doctrine and seeks permanent, total disability compensation. He is 48 years of age. His education is limited to the high school level and he has no known work skills or qualifications from his past employments which are anything other than essentially manual labor. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basis element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant contends that he is permanently and totally disabled. He relies upon the odd-lot doctrine. Assessment of industrial disability involves consideration of all the various factors. Total disability under compensation law is not utter and abject helplessness. The test for permanent total disability in a workers' compensation case has long been established and may be summarized as follows: When the combination of the factors considered in determining industrial disability precludes the worker from obtaining regular employment which provides him with the means to support himself, his disability is a total disability. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W. 2d 181, 192 (Iowa 1980); Diederich v. Tri-City Ry., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). Guyton adopted the odd-lot doctrine in Iowa which provides that a worker who becomes unable to obtain employment in any well-known branch of the labor market can receive permanent total disability compensation, if the only services the worker can perform are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. The case went on to provide that whenever a worker makes a prima facie showing of total disability, the burden of proving the availability of suitable employment to counter the claim of permanent total disability shifts to the employer. The case states that one method of making that prima facie showing of total disability is for the employee to make a bona fide effort to secure employment without success. In this case, James H. Soppe has sought employment, without success, from both the defendant employer and other sources. Both of his primary treating physicians have expressed the opinion that he is unemployable. Vocational consultant Magner has stated that claimant is unemployable and none of the other vocational consultants have contradicted the opinions expressed by Magner. It is therefore that James H. Soppe is permanently and totally disabled as a result of cumulative trauma injury sustained arising out of and in the course of employment with Energy Manufacturing Company, and in particular as a result of the injury sustained on April 8, 1985. The result is the same whether or not the odd-lot doctrine is applied. Drs. Turner and LaMorgese have attributed claimant's disability and both surgeries to the cumulative trauma of claimant's employment. Their explanations of the relationships among the employment, the incident of April 8, 1985 and the onset of left leg symptoms in 1988 is accepted as correct. Their explanations demonstrate that the employment was a substantial factor in producing the bulging discs at L5-S1 and L3-4, the need for both surgeries, and the residual disability which remained after the surgical procedures. Since it has been determined that claimant is entitled to recover permanent total disability under the provisions of Iowa Code section 85.34(3), there is no need to make a finding regarding the dates of claimant's healing period, since healing period compensation is awarded only when the permanent disability is partial, rather than total. In view of the foregoing findings, it is determined that defendants are liable for payment of claimant's expenses of treatment incurred under the direction of Dr. LaMorgese. Claimant also seeks a penalty under the fourth unnumbered paragraph of Iowa Code section 86.13. In order to recover, the claimant must show the absence of a reasonable basis for denying his claim and the defendants' knowledge or reckless disregard for the lack of a reasonable basis for denying the claim. Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. v. Labor & Indus. Review Comm'n., 405 N.W.2d 685 (Wis. 1987); Coleman v. American Universal Ins. Co., 273 N.W.2d 220 (Wis. 1979); Anderson v. Continental Ins. Co., 85 Wis.2d 675, 271 N.W.2d 368, (1978). The employer's lack of a dispute with claimant's claim is an important consideration, but is not absolutely controlling. A good faith debate can arise from either an issue of fact or an issue of law and the employer would not necessarily be adept at evaluating both. An investigation conducted by an insurance carrier may well determine facts which were not within the knowledge of the employer's personnel. In this case, claimant asserted an injury date of April 8, 1985 and his initial claim as made in his petition did not make any reference to a theory of cumulative trauma. The investigation showed claimant to have sought chiropractic treatment on March 27, 1985, approximately ten days prior to the date of the alleged injury. When claimant reported his back problems to his foreman, he did not make a clear, concise statement which attributed his complaints to the employment or to any particular event. The event of April 8, 1985 was not the type of occurrence which would have been readily apparent to a casual observer or coemployees. The onset of disability did not occur until approximately two months following the date of the alleged trauma. Since a physician's opinion regarding causation is no stronger than the accuracy of the medical history upon which it is based, it is determined by the undersigned that there was sufficient, albeit only marginally so, information available to the insurance carrier to warrant denial of liability for claimant's claim. An insurance carrier is not required to consider theories of recovery which are not clearly presented to it by the claimant. Defendants did, in this case, pay a substantial amount of weekly compensation to claimant and all of his medical expenses incurred through the end of his treatment with Dr. Turner. Their failure to voluntarily pay more was incorrect, but it was not totally unreasonable. It was only at the point of entering into treatment with Dr. LaMorgese and determining the amount of permanent disability that the defendants failed to timely pay the claim. The initial reports authored by Dr. LaMorgese can readily be interpreted to refute the existence of a connection between the employment, the injury treated by Dr. Turner and the condition treated by Dr. LaMorgese. Onset of problems at a different level of the spine is not normally seen following an injury. Simply stated, the circumstances in this case are not so strong as to hold the defendants' failure to accept liability for the second surgery and any disability related to the L3-4 spinal level unreasonable. It is therefore determined that claimant is not entitled to recover additional compensation under the provisions of Iowa Code section 86.13. FINDINGS OF FACT 1. James H. Soppe injured his back through a cumulative trauma process while he was employed by Energy Manufacturing Company in Monticello, Iowa. The injury included an event that occurred on April 8, 1985 when claimant experienced pain when stooping. 2. Claimant has not been employed since June 3, 1985. 3. The assessment of claimant's condition as made by Drs. Turner and LaMorgese is correct. 4. Claimant and his spouse are credible witnesses. 5. Claimant has made bona fide good faith efforts to obtain employment, but has not found any. 6. A reasonably stable market does not exist for the services which claimant is capable of performing. 7. Claimant is incapable of obtaining employment in any well-known branch of the labor market. 8. The evidence in this case fails to show that any employment exists in the Monticello, Iowa area which claimant is qualified to perform, physically capable of performing and able to obtain. 9. James H. Soppe does not have sufficient remaining earning capacity to earn sufficient wages to support himself. 10. The evidence fails to prove by a preponderance of the evidence that defendants' failure to pay claimant's claim was unreasonable. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. James H. Soppe is permanently and totally disabled under the provisions of Iowa Code section 85.34(3) regardless of whether the case is analyzed as one to which the odd-lot doctrine applies or whether the burden of proof is held to remain with the employee. 3. Claimant's state of permanent total disability was proximately caused by cumulative trauma to which he was exposed as part of the duties of his employment at Energy Manufacturing Company, including the trauma he experienced on April 8, 1985. 4. When permanent total disability results from an injury, there is no need to determine a healing period under Iowa Code section 85.34(1). 5. The cumulative trauma injury, including that of April 8, 1985, was a proximate cause of the need for the medical treatment which was provided under the direction of Dr. LaMorgese. 6. Claimant has failed to prove by a preponderance of the evidence that the defendants' failure to pay his claim was unreasonable. He is therefore not entitled to any recovery under the fourth unnumbered paragraph of Iowa Code section 86.13. ORDER IT IS THEREFORE ORDERED that defendants pay claimant weekly compensation for permanent total disability at the rate of two hundred fifty-two and 03/100 dollars ($252.03) per week payable commencing June 3, 1985 and continuing for so much of claimant's life as he remains totally disabled. IT IS FURTHER ORDERED that defendants are granted credit for all weekly compensation previously paid and shall pay the unpaid past due amounts in a lump sum together with interest pursuant to the provisions of Iowa Code section 85.30 computed from the date each weekly payment came due until the date of actual payment. IT IS FURTHER ORDERED that defendants pay the expenses of medical treatment incurred by claimant under the direction of Dr. LaMorgese. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 15th day of February, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John L. Riccolo Attorney at Law Suite 1140, The Center 425 Second Street SE Cedar Rapids, Iowa 52401 Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street P.O. Box 339 Davenport, Iowa 52805 1402.30, 1402.40, 1804 2209, 4000.2, 4100 Filed February 15, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES H. SOPPE, Claimant, vs. File No. 796271 ENERGY MANUFACTURING COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.30, 1402.40, 1804, 2209, 4100 Claimant found to have carried the burden of proving that he sustained a cumulative trauma injury which arose out of and in the course of employment. He was awarded permanent total disability compensation. 4000.2 Claimant's claim for a penalty was denied despite the fact that there was no medical opinion evidence in the record which attributed his injury or condition to anything other than his employment. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD G. OVERTON, : : Claimant, : File No. 796288 : vs. : : A R B I T R A T I O N NORTH STAR STEEL, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Richard G. Overton, claimant, against North Star Steel Company, employer and self-insured defendant (transcript page 4) for benefits as the result of an injury which occurred on May 29, 1985. A hearing was held in Davenport, Iowa, on August 18, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by David L. Scieszinski. Defendant was represented by James E. Shipman. The record consists of the testimony of Richard G. Overton, claimant; Julie L. Overton, claimant's wife; claimant's exhibits 1 through 22 and 24 through 43 and employer's exhibits 1 through 7. The deputy ordered a transcript of the hearing. Both claimant and defendant filed hearing briefs. Claimant filed an excellent posthearing brief. Defendant did not file a posthearing brief. preliminary matters Claimant initially filed an application for medical benefits on April 23, 1987, and concurrently filed an application for designation of treating physicians on April 23, 1987. Claimant then filed an amendment to the application for review-reopening on January 11, 1988. At the hearing, it was agreed that there had been no prior award and no prior settlement in this case and therefore, this matter was properly a proceeding in arbitration (tr. pp. 3 & 4). Iowa Code section 86.14. It was further determined that General Adjustment Bureau is not an insurance carrier or a person who might be liable for benefits and that North Star Steel was self-insured, whereupon, claimant withdrew General Adjustment Bureau as a party defendant in this case (tr. pp. 4 & 5). Prior to hearing on August 18, 1989, claimant had requested a protective order that he not be required to report to the Theda Clark Industrial Injury Clinic. This agency ruled on July 5, 1989, that this was an issue only determinable upon an evidentiary hearing and the motion for Page 2 protective order was consolidated with the contested case proceeding. At the time of hearing, claimant had already consented to and received this evaluation and therefore, a ruling on the protective order at the time of hearing was moot. It is determined, however, that the request for the independent medical examination at the Theda Clark Industrial Injury Clinic was reasonable in view of the deeply divided conflict between local physicians in this case. The ruling prior to hearing on the motion for protective order amended the hearing assignment order to include the issue of the appropriateness of an independent examination for claimant under Iowa Code section 85.39. At the hearing, the claimant requested an independent evaluation from Mark Hines, M.D., a neurologist at Ottumwa, Iowa (tr. pp. 6 & 7). Since claimant did not obtain an independent medical evaluation prior to hearing from Dr. Hines or any other physician, then this issue is moot because rule 343 IAC 4.31 provides that, "no evidence shall be taken after the hearing." (tr. pp. 14 & 15). Claimant could have had the examination performed and then had the matter of reimbursement determined by the hearing. Since claimant failed to do so, then the matter is moot. Claimant's exhibit list shows that proposed exhibit 23, the transcript of testimony of Eugene E. Collins, M.D., is crossed off. This exhibit was not submitted at the hearing or subsequent to the hearing and therefore, was not considered in the determination of the issues in this case (tr. p. 32). stipulations The parties stipulated to the following matters: That claimant sustained an injury on May 29, 1985, which arose out of and in the course of employment with employer; that the injury was the cause of temporary disability; that claimant was entitled to and was paid 17 weeks and 6 days of temporary disability benefits prior to hearing and that additional temporary disability benefits are not a disputed matter in this case at this time; that the type of permanent disability, if any, is industrial disability to the body as a whole; that the rate of compensation is $340.18 per week in the event of an award; that the fees charged by medical providers are fair and reasonable. issues The parties submitted the following issues for determination at the time of the hearing: Whether the 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. Page 3 Whether claimant is entitled to $589.43 for unpaid medical benefits to Vernon P. Varner, M.D., J.D., after medical authorization with Dr. Varner was withdrawn. (tr. pp. 22-25). Whether claimant is entitled to a hearing aid. findings of fact causal connection-entitlement-permanent disability It is determined that the injury of May 29, 1985, was the cause of permanent disability. It is determined that claimant has sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. Claimant was injured when a falling brick struck him on the left side of the head, left shoulder and left hip. Claimant was wearing a hard hat at the time of the injury. The weight of the brick, or piece of concrete, is described at various weights between 30 and 100 pounds. The distance it fell is described at various distances between one foot and 30 feet. The evidence also varies as to whether claimant was only dazed for a few moments or whether he was knocked unconscious for a short period of time. Claimant was off work from the date of the injury, May 29, 1985, until September 30, 1985. He initially returned to light duty performing clerical tasks and shortly thereafter returned to duty in his capacity as a journeyman millwright, but was restricted to light duty in a separate building under the supervision of another millwright pursuant to the orders of James B. Worrell, M.D., a board certified neurologist, who defendant had authorized as one of claimant's treating physicians. Due to the number, seriousness, persistence and severity of claimant's com plaints and due to the high level of anticonvulsive medications, antidepressive medications and antianxiety medications, Dr. Worrell determined that it was in claimant's best interest to be precluded from activities in the plant at large. Dr. Worrell did not believe it would be safe for claimant to work in high places where there was a danger of falling and that it would not be safe for claimant to work around moving machinery where claimant might be injured again. In addition, claimant contended that loud noises and flashing lights in the plant at large aggravated his headaches and other symptoms. Claimant has complained of severe headaches, dizziness, nausea, tinnitus, bilateral nose bleeds, blurry vision, pain at the base of his skull, neck pain, left shoulder pain, left hip pain, fatigue, anxiety, loss of sense of smell, smelling foul odors, loss of memory, loss of concentration, sleep disturbance, loss of appetite, weight loss, loss of sex drive, photophobia and brightening of colors and macropsia (seeing objects larger than they actually are). Claimant admitted that he had a problem with irritableness and marital problems prior to this injury, but that the Page 4 injury aggravated these problems and caused them to be sub stantially more pronounced after the injury. Julie L. Overton, claimant's wife, corroborated these contentions, both with several doctors and in her testimony at the hearing (tr. pp. 121-126). Dr. Varner, a board certified psychiatrist; Frank S. Gersh, Ph.D., a board certified clinical psychologist and Nils R. Varney, Ph.D., a board certified neuropsychologist; corroborated claimant's testimony concerning the number and severity of his symptoms. Both Dr. Gersh and Dr. Varney conducted extensive psychological tests independent of each other. Both doctors performed their respective tests not only once, but twice. Dr. Varner first saw claimant on November 14, 1985. (claimant's exhibit 26, pages 10, 14 and 15). On March 6, 1986, Dr. Varner wrote, "My diagnosis would be organic affective syndrome, organic personality syndrome, and psychomotor (partial complex-temporal lobe seizure) disorder." (cl. ex. 12). Dr. Varner indicated that the injury at North Star Steel was the cause of claimant's significant neuropsychological implications. On December 17, 1986, Dr. Varner described his diagnoses as (1) temporal lobe seizure disorder; (2) organic affective syndrome; and (3) organic personality syndrome (cl. ex. 13). Dr. Varner made a combined diagnosis and statement of causal connection on July 20, 1987, by stating, "Very briefly, his diagnoses are 1) organic personality syndrome, 2) organic affective syndrome, 3) organic brain syndrome, mixed, 4) chronic headaches all secondary to 5) a status post head injury at work from a falling object." (cl. ex. 15). When Dr. Varner testified in the court case of Richard D. Overton and Julie L. Overton, plaintiffs; against Kevin Brisker and David M. Lewis, defendants; on April 24, 1989, Dr. Varner said he preferred to describe the diagnosis as a limbic system abnormality with pseudo or false sensory feelings or phenomenon. More particular he stated: So I believe epilepsy, organic brain damage with partial complex seizures, organic damage, psycho-motor seizures, partial seizures, simple seizures, not grand mal seizures. And there are lots of names for this condition, but my primary diagnosis was post-head injury, limbic system abnormality with pseudo-sensory phenomenon without loss of consciousness. (claimant's exhibit 26, pages 20 & 21) Dr. Varner stated that he prescribed Tegretol, Dilantin, Imipramine, Xanax, Tranxene, Clonopin and Parnate. The doctor testified that claimant was taking 16 pills a day (cl. ex. 26, pp. 21-25). Dr. Varner stated that within a reasonable degree of medical certainty, "The injury was suffered when the large heavy block of material fell from the ceiling and hit him on the head." (cl. ex. 26, p. 28). Dr. Varner thought that Page 5 claimant would be precluded from journeyman millwright work because the noise in the factory would aggravate his hyperacusis (excessive hearing of noises) and he did not think it was safe for claimant to work on ladders, scaffolding or catwalks because of his dizziness or sudden onset of headaches. He said lifting and straining could make his headaches worse. The doctor thought it would be prudent if claimant worked under someone else's observation. He felt that stress and noise would increase claimant's headaches and irritability (cl. ex. 26, pp. 26-32). Dr. Varner believed that if claimant would happen to lose this job, his future employment would be contingent on rehabilitation training (cl. ex. 26, p. 35). Dr. Varner was not able to state that claimant was permanently impaired, but felt that four years after the injury claimant had reached a plateau of recovery (cl. ex. 26, pp. 36 & 37). Dr. Varner did not believe that the fact that all of claimant's prior head CT scans, encephalograms (EEG's) and magnetic resonance imaging (MRI) tests were all negative was necessarily contrary to his diagnoses and treatment (tr. pp. 37-40). The fact that claimant received a normal test result on a 24-hour encephalogram did not alter Dr. Varner's diagnosis, treatment or opinions (cl. ex. 26, pp. 54-56). Dr. Varner acknowledged that the allergy to Tegretol is unfortunately quite frequent and could lead to loss of bone marrow function (cl. ex. 26, p. 58). The doctor acknowledged that claimant could try to perform his job as a full plant journeyman millwright as opposed to a supervised machine shop millwright, but he cautioned that stresses are known to actually activate limbic system abnormalities and admonished that claimant would have to be able to deal with the additional sensory stimulation, noise, flashing lights and physical exertion and other stimuli which could trigger off either a major motor or a limbic system phenomenon (cl. ex. 26, pp. 58-62). In a letter dated September 10, 1987, Dr. Varner wrote, "He is unable to do hard, vigorous labor, and in that sense, he is disabled from many of the jobs, even within his present work setting, that he would be eligible for." (cl. ex. 16). Dr. Varner felt that the injury interfered with claimant's present ability as a wage earner, his future productivity, his ability to move laterally with employer to perhaps a higher paying job, and interfered with his ability to bid into various positions within the union. Dr. Varner concluded, "It seems like a total disability, partial permanent, of somewhere around 25% would be appropriate." (cl. ex. 16). Dr. Gersh, who officed with Dr. Varner and concurrently treated claimant with him, concurred in Dr. Varner's conclusions (cl. exs. 1, 6, 7, 17, 18, 19 & 24). At the trial of the Overton's against Brisker and Lewis on April 25, 1989, Dr. Gersh testified that his evaluation was as follows: A. Basically, I found that he had a brain damage syndrome due to post head injury, that there was evidence of more damage to the right side of his Page 6 brain than on the left, that areas of the brain most effected were the frontal lobe, which is up front, and the temporal lobes, which deal with memory. I also found that he had a syndrome called organic affective disorder which is depression, more than simply a mood of depression, a disorder of depression which can come about because of brain damage, and it was my opinion that this effectived [sic] virtually all aspects of his life. ...and finally I found that he had a number of symptoms that suggested to me that he might have a seizure disorder. (claimant's exhibit 24, page 18) With respect to causal connection, Dr. Gersh testified, "My opinion is that this accident caused the brain damage and these other symptoms I discussed." (cl. ex. 24, p. 20). Dr. Gersh attempted to treat claimant's headaches with biofeedback therapy, but the treatment was not successful (cl. ex. 24, pp. 22 & 23). Dr. Gersh also performed a series of marriage counseling conferences with claimant and his wife (cl. ex. 24, p. 24). This clinical psychologist testified: My opinion is that the condition is permanent because sufficient time has elapsed for the normal course of physical recovery to take place. That usually takes place in roughly the first year, 90 percent, say, in the first year after a head injury such as this. And when I saw him in 1987 that was close to three years after the injury. (claimant's exhibit 24, page 27). He further testified, "My opinion is that he's going to be able to do some minimum wage jobs that are very routine, repetitive, and where he doesn't have to take any initiative and where there is not a lot of pressure to work fast....I can't see him working around loud noise, bright lights or heat because all of those make his headaches much worse." (cl. ex. 24, pp. 28 & 29). But Dr. Gersh did not rule out some future recovery (cl. ex. 24, p. 31). Dr. Gersh testified in his evidentiary deposition on June 22, 1988, that claimant was suffering from an injury to the brain itself, it could be treated with medication, but that there is no known way of curing brain damage (cl. ex. 7, p. 30). Dr. Varney generally concurred with Dr. Varner and Dr. Gersh. On April 17, 1986, he concluded 1) depression, probably affective disorder; 2) partial complex seizures; 3) psychosocial changes consistent with orbital frontal damage; and 4) erratic intellectual status (cl. exs. 3, 4 & 5). At the court trial on April 25, 1989, Dr. Varney testified that Page 7 he performed psychological tests for J.C.N. Brown, M.D., a psychiatrist (cl. ex. 25, pp. 7 & 8). His history, tests and examination disclosed a closed head injury which was caused by the head trauma on May 29, 1985 (cl. ex. 25, pp. 8-23). Dr. Varney thought that probably the depression symptoms might be improved, "But as far as his frontal lobe problems are, there is no cure on the horizen [sic] and I see no improvement in those symptoms period." (cl. ex. 25, p. 34). Other evidence that might establish that claimant suffered a severe head injury which might cause organic brain disease and epileptic seizures is as follows: First, shortly after the injury, and early in claimant's recovery, he testified that he experienced a blackout or fainting spell, fell to the floor and chipped a tooth. Second, in April of 1988, claimant reported to Dr. Varner that he bit the right side of his cheek and the right side of his tongue while taking a nap (cl. ex. 27). Neither of these incidents, however, were independently verified. Other evidence of a severe blow to the head is found in the report of the Durant Ambulance dated May 29, 1985, which reported, "Depression at left side base of skull." (defendant's ex. 4, p. 2; cl. ex. 26, p. 70). Also, an earlier report from the emergency treatment indicated that claimant, "...had indentation in the posterior lateral aspect of his head..." (cl. ex. 26, p. 51). The foregoing summarized evidence favors claimant's proposition that he has an organic brain injury and epileptic seizures. This decision will not attempt to decide as a medical matter whether in fact claimant does or does not have organic brain damage and epileptic seizures when several highly competent medical practitioners could not agree on this point. This decision does determine as a legal matter, however, that the weight of the evidence does not support organic brain damage and epileptic seizures. On the contrary, the weight of the evidence in this case sustains defendant's proposition that claimant has sustained postconcussion syndrome and posttraumatic syndrome. Shortly after the injury, claimant was examined at St. Luke's Hospital on May 29, 1985, by Eugene Collins, M.D., a neurosurgeon. He said claimant complained of no focal neurologic complaints such as numbness, weakness, etc. X-rays of the skull, cervical spine, pelvis and left hip were unremarkable for fracture. Claimant was awake, alert and oriented. There was no evidence of aphasia (ability to speak coherently). Claimant's head appeared relatively atraumatic and normocephalic. There were no battle signs (post auricular ecchymosis in cases of fracture of the base of the skull). There was no leakage from ears or nose. His neck was supple without point tenderness. Claimant was diag nosed as blunt head trauma. Grossly nonfocal satisfactory neurological exam at present. He was hospitalized for observation between May 29, 1985 and June 1, 1985 (cl, ex. Page 8 2, p. 1; def. ex. 4, p. 4). X-rays of the cervical spine showed no evidence of fracture; only minimal degenerative narrowing of the innerspace between C3 and C4. Four views of the skull revealed no evidence of fracture and sella was normal. X-rays of the pelvis and hip were normal (cl. ex. 2, p. 4; def. ex. 4, p. 5). Another x-ray of the cervical spine on May 30, 1985, showed no evidence of instability of the cervical spine (cl. ex. 2, p. 5; def. ex. 4, pp. 6 & 7). A CT scan of the head on May 31, 1985, was entirely normal (cl. ex. 2, p. 6; def. ex. 4, p. 8). The discharge summary on June 1, 1985, gave a discharge diagnosis of blunt head trauma, cerebral concussion. It did report mild, light headedness after walking (cl. ex. 2, p. 2; def. ex. 4, p. 9). Dr. Collins referred claimant to Robert W. Milas, M.D., another neurosurgeon, for consultation. Dr. Milas saw claimant on July 9, 1985, and diagnosed probable postconcussion syndrome. Dr. Milas ordered a CT scan of the head on July 12, 1985, which was with and without intravenous contrast and it showed a normal head CT with no interval change from the earlier one performed at St. Luke's Hospital on May 31, 1985 (cl. ex. 2, p. 9). An elec troencephalographic study was performed on July 12, 1985, and was normal during wakefulness and drowsiness (cl. ex. 2, p. 8; def. ex. 4, p. 10). Claimant's care was then transferred to L.G. Rigler, M.D., a family practice physician who was employer's regularly retained company physician. Dr. Rigler referred claimant to Dr. Worrell. Dr. Worrell released claimant to return to work light duty on September 30, 1985 (cl. exs. 30 & 31). Dr. Worrell later released claimant to supervised millwright plant duty on May 22, 1986 (cl. ex. 39). After Dr. Worrell's first examination of claimant, he stated, "It is my impression that this man still has a postconcussion syndrome. I can find absolutely nothing really objective on his neurological exam and he has had two CT scans and an EEG, all of which have been normal." (def. ex. 4, pp. 30 & 31). On September 22, 1987, Dr. Worrell continued to limit claimant's work to the machine shop under the supervision of another millwright (def. ex. 4, pp. 81 & 91). Dr. Worrell recommended a 24-hour ambulatory electroencephalogram (EEG) as a diagnostic tool to argue against partial complex seizures on February 23, 1988. A 21-lead EEG performed on June 14, 1988, resulted in a normal 24-hour ambulatory EEG (def. ex. 4, pp. 95 & 96). Dr. Worrell gave a deposition on January 25, 1988, in which he testified that after numerous neurologic examinations he could never confirm claimant's subjective symptoms or complaints with any objective findings on a neurological examination (def. ex. 6, p. 7). His diagnosis was still posttraumatic syndrome because of a lack of other diagnostic categories to put it in to. He did not know if it would be a permanent condition or not. He still hoped it would be temporary (cl. ex. 6, pp. 9 & 10). In addition to posttraumatic syndrome, underneath it all, there has been a Page 9 depression (def. ex. 6, p. 13). He gave his professional opinion within a reasonable degree of medical probability that claimant does not suffer from temporal lobe seizures or complex partial seizures (def. ex. 6, p. 18). He said his opinion is supported by the opinion of Robert W. Fincham, M.D., who is a board certified neurologist and the director of the Epilepsy Center at the University of Iowa Hospitals and Clinics (def. ex. 6, pp. 18 & 19). Dr. Fincham verified that claimant's supervised work in the closed shop was necessary in his opinion because if claimant were out in the noisy, dirty plant doing heavier work, and if he should get light headed and faint, then he could injure himself. Dr. Worrell stated, "Also, he is still on enough drugs from Dr. Varner that if there were a faintness or a clumsiness or something developing from one of those, that he could potentially injury [sic] himself working full-time [sic] as a millwright." (def. ex. 6, p. 21). However, the doctor hoped, "...we could gradually get him back into the shop an hour or two a day, gradually advance on that in sort of a work hardening type of thing over period of two or three months and see how it goes." (def. ex. 6, p. 23). The only other restrictions would be whatever the foreman might require if claimant were light headed or unsteady. He did not feel that claimant should be forced to exceed his capabilities and risk some type of serious injury (def. ex. 6, p. 24). Dr. Worrell agreed that he referred claimant to Dr. Gersh for a neuropsychological examination, but he disagreed with Dr. Gersh's impression of organic brain syndrome secondary to closed head injury because neuropsychological testing in invalid in patients who are depressed (def. ex. 6, pp. 28 & 29). Dr. Worrell was opposed to Tegretol because it was a potentially harmful drug (def. ex. 6, p. 34). The witness adamantly testified that claimant absolutely does not have complex partial seizures (def. ex. 6, p. 45). He repeated this a number of other times in his tesitmony. Dr. Worrell gave another lengthy deposition for the district court case of the Overton's against Brisker and Lewis on April 11, 1989. He repeated that after eight or ten neurological examinations he could find no objective evidence of a neurologic abnormality. His opinion, based upon a reasonable degree of medical probability, was that claimant was suffering from postconcussion or posttraumatic syndrome (def. ex. 7, p. 13). He explained that the 24-hour electroencephalogram gave him the opportunity to monitor brain waves for 24-hours rather than just 30 to 45 minutes in order to substantiate whether claimant was having seizures or not (def. ex. 7, p. 19) and the test was completely normal (def. ex. 7, pp. 20-22). He stated that in addition to the encephalograms and the head CT scans, an MRI was performed and this again was normal (def. ex. 7, p. 23). Dr. Worrell believed that claimant's subjective complaints have persisted for such a long period of time because, "...there's a certain amount of depression in his case, anxiety factors, I think hostility towards his company and the injury that he received that has prolonged his Page 10 problems." (def. ex. 7, pp. 24 & 25). Dr. Worrell opined that based upon a reasonable medical probability that claimant's depression and anxiety were not permanent in nature (def. ex. 7, p. 26). Moreover, Dr. Worrell added, "He has not suffered any permanent organic impairment of his brain." (def. ex. 7, p. 27). He also stated that claimant does not suffer from complex partial epilepsy or a seizure syndrome (def. ex. 7, p. 27). When Dr. Worrell was asked to state the basis for his opinion, he testified: Richard has never had any of the major symptoms of complex partial seizures. He's never had the automatisms, the alteration of consciousness that one sees, the complex motor activity, the complex abnormalities of thought that occurs during complex partial seizures. We have never documented an abnormal EEG, including a 24-hour EEG, and he has been evaluated also by Dr. Fincham who has not been able to come up with any of these findings that would enable us to substantiate the fact this man would have complex partial seizures. (defendant's exhibit 7, page 27) In addition to objective tests, "He has not had the strong clinical findings for complex partial seizures." (def. ex. 7, p. 31). The neurologist further testified, "In my opinion, he does not require anticonvulsant medications per se." (def. ex. 7, p. 33). Dr. Worrell believed that claimant was physically capable of returning to full duties in the plant as a crew millwright, but, "I think maybe mentally or depression wise as the things we discussed earlier, he may not be capable of performing up to standard there." (def. ex. 7, pp. 34 & 35). He thought that claimant could probably return to full duty at some time in the future (def. ex. 7, p. 35). Dr. Worrell related that Dr. Varner did not consult him before he put claimant on all of those prescription medications (def. ex. 7, p. 43). Dr. Worrell explained that on the occasion shortly after the accident when claimant passed out, was not an automatism. He said it was merely a fainting spell as a result of his postconcussion syndrome (def. ex. 7, p. 46). With respect to the incident where claimant bit his tongue and the side of his mouth while napping, Dr. Worrell stated, "But his wife and daughter were right there, and they did not hear or witness any seizure activity." (def. ex. 7, p. 47). Claimant was examined at the University of Iowa Hospitals and Clinics by Richard W. Fincham, M.D., on two occasions. He saw claimant on September 4, 1986, and diagnosed postconcussion syndrome. He recommended that claimant advance his daily activities as much as possible (def. ex. 4, p. 121). Dr. Fincham concluded his report on September 28, 1986, as follows: Page 11 The patient was a well developed and well nourished man in no apparent distress. General examination revealed no evidence of abnormalities. The neurologic examination was intact. An awake EEG showed no abnormalities. It is our feeling that the patient is suffering from a post concussive syndrome and not from partial complex seizures. (defendant's exhibit 4, page 122). An EEG taken on September 5, 1986, was normal (def. ex. 4, p. 123). Dr. Fincham saw claimant on the second occasion on December 29, 1986. He said the patient appeared depressed and at times angry. His physical exam was unremarkable. He concluded his report, dated January 7, 1987, as follows: I continue to favor a diagnosis of a post traumatic syndrome. I do not believe that the patient has epilepsy. We have made arrangements to complete magnetic resonance imaging of the head (16 January ) in relation to the patient's recent concerns of head and neck pain and I offered him the opportunity to come into the hospital to discontinue Tegretol therapy and be observed for seizures. I would also favor efforts to phase out the Equagesic, Tranxene and Xanax. Psychiatric evaluation can be completed if the patient continues with problems in this realm. (defendant's exhibit 4, pages 124 & 125) The magnetic resonance imaging exam of the brain and brain stem performed on January 16, 1987, showed a normal brain and cervical spine exam (def. ex. 4, pp. 126-129). Claimant was examined by J.C.N. Brown, M.D., a psychiatrist, on two different occasions. On March 4, 1986, Dr. Brown diagnosed: Organic Affective Syndrome in relatively good remission secondeary [sic] to treatment. The mild apperceptual blunting is likely attributable to the medication. I believe there is no psychiatric contradiction to this man returning to work. I would suggest returning at first to light work and progressive increasing the work load. Also, a psychological evaluation for organic workup. (defendant's exhibit 4, pages 110 & 111). Dr. Brown found no clinical evidence of seizure disorder as shown in the psychological test battery performed by Dr. Varney, which indicated partial complex seizures. Dr. Brown stated, "I strongly suggest that this condition be reevaluated by procuring a second neurological Page 12 opinion." (def. ex. 4, p. 112). Dr. Brown reported again in June 10, 1988, with a diagnosis of depression, moderate in severity, which might be caused by psychosocial stressors such as the forthcoming litigation and the work situation or depression secondary to sedative medication or a continued organic mood disorder depressed. He concluded by saying, "I believe the prognosis is good." (def. ex. 4, pp. 113 & 114). Dr. Brown made a report on June 3, 1989, reviewing his previous two letters. He stated that in as much as the concussion was a mild one occurring three years before the time of the evaluation with no neurological signs of organic sequelae in the interim, that the following were the most likely causes of his depression: 1. Depression in response to continuous environmental stresses, his work, his marriage, and the ongoing litigation, or 2. Depression, secondary to sedative type medication which the patient had been taking for 2 years, or... (defendant's exhibit 4, page 115) He believed the depression was a temporary disorder and that the prognosis was good. Referring to the American Medical Association, Guides to the Evaluation of Permanent Impairment, third edition, Dr. Brown stated: Depression, such as that manifest in Mr. Overton, constitutes an impairment. The impairment, however, must be regarded as temporary in nature....There is no indication that the condition would cause sudden or subtle incapacitation or that the patient would suffer injury or harm by engaging in activities of daily living, working or any other activity necessary to meet personal, social or occupational demands....Return to full work load as feasible, but should be arranged by a system of gradation....There is no permanent impairment. (defendant's exhibit 4, page 116) Dr. Varner disputed Dr. Brown's report on several points (cl. ex. 43c, pp. 1 & 2). Finally, claimant was examined at the Industrial Injury Clinic also known as the Theda Clark Regional Medical Center at Nennah, Wisconsin, intensively and extensively by G.R. Anderson, M.D.; T.J. Michlowski, M.D., a neurologist and psychiatrist; T.R. Groh, Ph.D., a clinical psychologist; D.A. Irwin, Ph.D., a neuropsychologist; and W.J. Reynolds, M.S., R.R.C., a vocational evaluator; and a report was prepared and signed on July 12, 1989. The staff recommendations and conclusions were as follows: Page 13 1. It is the opinion of the staff that this individual has recovered from the industrial injury in question. 2. There is no evidence of any traumatic epilepsy. 3. We would recommend that this patient be gradually tapered off his current medications to include Xanax, Tegretol and Dilantin, and observed by a competent neurologist and psychiatrist with follow up [sic] treatment according to response patterns. Based on our review and evaluation of this individual, we find that it is highly unlikely that he has sustained any post traumatic epilepsy as a result of his closed head injury. All objective information would indicate that this is a very benign injury and there is no objective evidence of any permanent residuals or disability. Psychodynamically, it may well be that the current diagnosis of "epilepsy" serves as a substantial defense phenomenon relative to the obvious premorbid disorder in terms of personality structure and behavior. If this is the case, a more direct dealing with the real issues would be far more beneficial for this patient in order that he return to a more normal life adjustment. 4. This patient demonstrated substantial hyperlipidemia and hypercholesterolemia. We would recommend he see his personal physician in follow up [sic] in this regard. This is not industrially related. 5. This patient can work within the Work Capacity Classification attached. He should refrain, however, from jobs that require a keen sense of balance especially such as jobs working at heights until at least 30 days after he has discontinued the current medications, i.e., Xanax, Tegretol and Dilantin. 6. Repeat neuropsychological testing at this time does not show any evidence of traumatic brain disorder or traumatic dysfunction. Also, we find previous implications taht [sic] the patient's performance on the Bender indicated pathology to be absurd. On review of his performance on the Bender that was sent, no abnormality was found. The report is signed by Dr. Anderson, Dr. Michlowski, Dr. Groh and Mr. Reynolds, showing copies supplied to both attorneys and claimant himself (def. ex. 4, pp. 131-144). The physical capacity examination shows that claimant is capable of performing work within the range between medium and heavy work. He can stand, walk, sit, or drive up to eight hours per day. His hands can perform simple grasping, pushing and pulling and fine manipulation. His feet can operate foot-controls. He can bend, squat, climb and perform overhead work and work at shoulder level. The only Page 14 restriction is that he is to avoid jobs at heights requiring a keen sense of balance until drugs such as Xanax, Tegretol and Dilantin have been discontinued for 30 days (def. ex. 4, pp. 145 & 146). From the foregoing summary of evidence, it is determined that as an evidential matter, the weight of the evidence is that claimant has sustained a postconcussion syndrome and posttraumatic disorder. He has not suffered organic brain damage or epileptic seizures. There is only one impairment rating in the amount of 25 percent from Dr. Varner and the basis for his rating does include some industrial disability factors. At the same time, Dr. Brown, defendant's psychiatrist, testified that claimant has not sustained any permanent impairment. Nevertheless, it is determined that claimant has sustained some permanent disability. Claimant has only performed light duty in a closed shop environment under the direct supervision of another millwright since September 30, 1985. Dr. Varner said it would be unsafe for claimant to work at heights, in noise, or in bright flashing lights. Even Dr. Brown and Dr. Worrell agreed that claimant should be returned to work on a graduated basis. The doctors at the Industrial Injury Clinic specified that claimant should not work at heights while he is taking Xanax, Tegretol and Dilantin and until these medications have been discontinued for 30 days. It may be necessary to hospitalize claimant, according to Dr. Fincham, when the Tegretol therapy is discontinued so that claimant can be observed for seizures. Thus, even though claimant is a qualified journeyman millwright, he is precluded from performing full millwright duties in the plant at large. He still suffers from depression. If and when the medications can be sufficiently withdrawn, in order for claimant to return to full millwright work, is a matter of pure speculation and conjecture at this time. Claimant is effectively restricted to performing millwright work in a closed atmosphere under the supervision of another millwright removed from the noise, lights and moving machinery from the plant at large. Since the time when he can return to full millwright duties is indefinite, this is tantamount to a permanent restriction at this time from performing full duties as a journeyman millwright. Even though claimant has been maintained at the same rate of pay and has sustained no actual loss of wages, he has, nevertheless, sustained some industrial disability because of his current and indefinite inability to perform full journeyman millwright work. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979). The fact that employer has made the needed accommodations so that claimant can continue to work at the same rate of pay is highly commendable and substantially reduces claimant's industrial disability (loss of earning capacity) at this time. However, employer's toleration for claimant's inability to work as a full journeyman millwright in the plant at large will not necessarily transfer or translate to the competitive labor market as a whole. Page 15 Hartwig v. Bishop Implement Co., IV Iowa Industrial Commissioner Report 159 (Appeal Decision June 28, 1984). Claimant is not likely to find other employers as understanding of claimant's postconcussion syndrome complaints and depression for an employee who is taking 16 pills a day which are anticonvulsants, antidepressants, and antianxiety medications. Todd v. Department of General Services, Buildings and Grounds, IV Industrial Commissioner Report 373 (1983). Claimant was 30 years old at the time of the injury and 34 years old at the time of the hearing (tr. p. 52). He started to work for employer in June of 1982 (tr. p. 53) as a millwright (tr. p. 54). He has a high school education and average intelligence. Claimant testified that he now assists another millwright, Harry Riley, in the machine shop. Claimant's attendance record after his return to work on September 30, 1985, is outstanding (def. ex. 1). Claimant has received excellent evaluations for his work performance from his superiors both before and after the injury (def. ex. 3). Claimant stated that he still suffers headaches (tr. p. 89) and dizziness once in a while (tr. p. 90). The headaches last two hours a day (tr. p. 92). He still has problems with his vision, nausea and sometimes with smells (tr. pp. 92 & 93). Claimant testified that he has worked part-time for Harry Riley in his trailer business outside of the plant (tr. p. 102). Claimant acknowledged that in 1985, he went deer hunting and shot a deer and cut his finger while skinning the deer out (tr. p. 114). Wherefore, based upon (1) the foregoing information; (2) all the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); and applying agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 10 percent industrial disability to the body as a whole. medical benefits Defendant is required to provide reasonable care and at the same time is given the privilege of choosing the care. Iowa Code section 85.27. Dr. Worrell referred claimant to Dr. Gersh for psychological testing. Dr. Gersh referred claimant to Dr. Varner. Defendant did not select Dr. Varner as an authorized treating physician, but, nevertheless, acquiesced in his care for claimant up until sometime in mid 1987, at which time they terminated claimant's authority to see Dr. Varner and notified him that they would no longer pay his bills. Claimant testified that he, nevertheless, chose to see Dr. Varner anyway because Dr. Varner and Dr. Gersh were the only two medical providers that had helped him. Page 16 Claimant is not entitled to recover $589.43 in unpaid medical expenses of Dr. Varner for the reason that after mid 1987 Dr. Varner was no longer an authorized treating physician. Claimant was notified of this fact, but, nevertheless, chose to see Dr. Varner as his own personal choice of physician. Iowa Code section 85.27 says the employer is obliged to furnish reasonable services and supplies to treat an injured employee, but has the right to choose the care. Therefore, the unpaid medical expenses of Dr. Varner in the amount of $589.43 cannot be allowed. request for alternate care Iowa Code section 85.27 provides that the industrial commissioner may order alternate care upon reasonable proofs of the necessity for it. As previously stated, employer is required to give reasonable care and at the same time has the privilege of choosing the care. The care provided by Dr. Worrell has been reasonable. Furthermore, by selecting Dr. Fincham and Dr. Brown as evaluating physicians, defendant should be consistent and permit these physicians to treat claimant if he so chooses. Dr. Fincham agreed to hospitalize claimant as a protection against seizures if he decides to give up the Tegretol. If defendant wishes to rely on this evidence to mitigate their liability to claimant for industrial disability, then they should be willing to permit Dr. Fincham or Dr. Brown to treat claimant to either discontinue the Tegretol in the case of Dr. Fincham or to gradually work claimant back into full millwright work as suggested by Dr. Brown. No necessity has been shown to issue an order for alternate care to Dr. Varner or Dr. Gersh as requested by claimant in his request for alternate care. Defendant has provided resonable care. hearing aid It is determined that claimant is not entitled to a hearing aid. Claimant testified that the plant is noisy (tr. p. 56), but contended that he developed a hearing problem after the injury of May 29, 1985 (tr. p. 80). Consequently, he saw Gordon R. Johnson, D.O., an ear, nose and throat specialist in Davenport, Iowa, who recommended a hearing aid, but the company refused to pay for it (tr. p. 81). On June 17, 1985, Dr. Johnson stated, "My impression is the patient does have left sided hearing loss and tinnitus due to an apparent post concussion syndrome." (cl. ex. 8, p. 1; def. ex. 4, p. 14). Michael C. Hartman, M.A., an audiologist, stated that claimant's moderately severe sen sorineurial hearing loss followed an audiometric configuration similar to a noise induced hearing loss or acoustic trauma notch (def. ex. 4, p. 17). When confronted with the causal connection question, Dr. Johnson stated that Mr. Overton did suffer from an apparent postconcussion syndrome and the only way he could give an accurate assessment of his hearing loss was to see an audiological hearing evaluation done prior to his accident at work (def. ex. 4, pp. 19 & 20). However, Dr. Johnson was unable to state an opinion based upon a reasonable medical probability that Mr. Overton's need for a hearing aid was causally Page 17 related to the work injury of May 29, 1985 (def. ex. 4, p. 21). Therefore, it is determined that claimant is not entitled to a hearing aid for hearing loss caused by this injury. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That the injury of May 29, 1985, when claimant was hit on the head with a brick, was the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant has sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u); Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). That claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to $589.43 in unpaid medical expenses for Dr. Varner which were incurred after the authority to see Dr. Varner was terminated. Iowa Code section 85.27. That claimant is not entitled to an order for alternate care for Dr. Varner and Dr. Gersh because the care provided is reasonable and claimant has not proven the necessity for an order for alternate care. Iowa Code section 85.27. Claimant has not sustained the burden of proof by a preponderance of the evidence that he is entitled to a hearing aid because he failed to prove that his hearing loss was caused by the injury of May 29, 1985. Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607. order THEREFORE, IT IS ORDERED: That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of three hundred forty and 18/100 dollars ($340.18) per week in the total amount of seventeen thousand nine dollars ($17,009) commencing on September 30, 1985. That this amount is to be paid to claimant in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the transcript of the hearing, are charged to defendant pursuant to rule 343 IAC 4.33. Page 18 That defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. David Scieszinski Attorney at Law 108 E. 4th St. PO Box 394 Wilton, Iowa 52778 Mr. James E. Shipman Attorney at Law 1200 MNB Bldg. Cedar Rapids, Iowa 52401 Page 1 1108.20 1108.50 1401 1402.40 2204 2206 2902 1103 2700 2504 Filed March 26, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : RICHARD G. OVERTON, : : Claimant, : File No. 796288 : vs. : : A R B I T R A T I O N NORTH STAR STEEL, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1108.20 1108.50 1401 1402.40 2204 2206 2902 It was determined that the injury was not the cause of organic brain syndrome and partial complex epileptic seizures as diagnosed by Doctors Varner, Gersh and Varney; but rather that the injury was the cause of postconcussion syndrome and posttraumatic syndrome as diagnosed by Doctors Worrell, Fincham and Brown and the battery of doctors at the Industrial Injury Clinic at Neenah, Wisconsin. 1103 Dr. Varner, claimant's psychiatrist, assessed a 25 percent permanent impairment, but his evaluation included industrial factors. Dr. Brown, defendant's psychiatrist, and the psychiatrist at the Industrial Injury Clinic said there was no permanent impairment. However, claimant, who was a journeyman millwright at the time of the injury was restricted to performing light duty millwright work in a closed building under the supervision of another millwright and was not allowed to perform general duty millwright work in the plant at large because of (1) his subjective symptoms of headaches, dizziness and sensitivity to bright lights and loud noises and (2) because Dr. Varner had him taking 16 pills a day of anticonvulsants, antidepressants and antianxiety medications which made it dangerous to work in high places, around moving machinery, and to perform generally heavy active work. Practically all of the doctors recommended that claimant be graduated slowly into general millwright work again, but it might be necessary to hospitalize claimant when he discontinues the pills to prove that he won't have seizures or will be where they can be treated if he did have seizures. Claimant had been on light Page 2 duty restricted millwright work for four years and if and when he would or could go back to general duties was speculative, and therefore, amounted to a permanent restriction because of its indefiniteness. Claimant awarded 10 percent industrial disability. Employer had provided light duty work to claimant for four years at his same rate of pay as when he was injured by the falling brick. Thus, claimant had no actual loss of income, however, this employer's willingness to accommodate claimant with job modifications was not transferrable to the competitive job market as a whole. 2700 Claimant was not entitled to an order for alternate care transferring his care to Doctors Varner, Gersh and Varney. It was determined that claimant had been provided reasonable care and claimant did not prove that a transfer of care was necessary. 2504 Claimant was not awarded a hearing aid because the ENT doctor could not say whether the hearing loss was trauma induced or noise induced because no audiology records were available prior to the injury.