BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARY L. BLANKENSHIP, Claimant, File No. 798884 vs. A P P E A L SMITHWAY MOTOR EXPRESS, INC., D E C I S I O N Employer, F I L E D and MAY 20 1988 LIBERTY MUTUAL INSURANCE CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying temporary total disability and medical benefits. The record on appeal consists of the transcript of the arbitration proceeding; claimant's exhibits A through J, N, O and P; and defendants' exhibits 1 and 2. Both parties filed briefs on appeal. ISSUE Claimant states the following issue on appeal: Whether a causal relationship exists between claimant's injury of July 5, 1985 and his medical treatment and his time lost from work. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally set forth herein. Briefly stated, 49 year old claimant was employed as an over-the-road truck driver for approximately three to four months in 1985. Claimant testified that on July 5, 1985, he fell off the back of a trailer in Oshkosh, Wisconsin, landing first on his feet and going into a crouch position, and then falling onto his buttocks. Claimant described a belt buckle he was wearing at the time which had a sharp protrusion that pinched his stomach and produced pain when he fell, but did not puncture the skin. Claimant testified that a painful red spot appeared where the belt buckle injured his stomach, and that the spot grew larger over the next few days. Claimant's wife testified that claimant called her from Wisconsin and told her of the injury and that he was experiencing pain and would be returning home early to see a doctor, and that when he returned home claimant had a large bulge on his stomach next to his navel. Claimant obtained emergency treatment, then returned to Fort Dodge, Iowa, where he sought medical attention from Kyle R. Ver Steeg, M.D., and was admitted to the hospital for emergency surgery on July 9, 1985. Although a strangulated hernia was first suspected, during the surgery on July 9, 1985, claimant's condition was found to be an abdominal wall abscess. Claimant was off work from July 9, 1985 until September 10, 1985. Claimant testified that one month prior to the July 5, 1985 injury, he had experienced abdominal pain while tightening a chain on the truck. Claimant was previously found to have Crohn's disease during a surgical repair of a umbilical hernia in 1984. Dr. Ver Steeg testified that Crohn's disease involved inflammation of the intestine, resulting in blockage and bleeding. On July 25, 1985, Dr. Ver Steeg stated that claimant's fall on July 5, 1985 resulted in "an abscess which was forced through the abdominal wall at the time of the fall. The abscess originated from a perforation of the small intestine involved with Crohn's disease." (Claimant's Exhibit H) On August 9, 1985, Dr. Ver Steeg opined: Regarding your letter dated August 7th, 1985 on Gary Blankenship. The exacerbation of Mr. Blankenship's Crohn's disease happened precisely at the time of the fall from the truck at work. His bowel was involved with Crohn's disease which certainly is not work related. However, since the timing of the exacerbation is so historically precise, it is conceivable the fall could have caused the abnormal bowel in its fixed position to perforate and form the abscess, and/or cause an abscess already present to perforate thru the abdominal wall forming what appeared to be, but actually was not, a strangulated hernia. I am unable to give an opinion with 100% certainty since I saw the problem retrospectively. But the exacerbation or complication of his Crohn's disease occured [sic] at the precise time of the fall at work, according to the patient. (Cl. Ex. J) In his deposition, Dr. Ver Steeg testified: Q. And can you tell us, Doctor, what you later found out were his problems? A. I found -- upon making a surgical incision over the mass in the right lower abdomen, I found a large collection of pus, which I had entered with the knife and then drained. This pus had come through the old incision that had been performed about a year before. And it was actually an extension of what appeared to be an intra-abdominal -- inside the abdomen -- abscess, which was caused by perforation of the lower small intestine from this Crohn's disease. .... Q. In your opinion, Doctor, is it possible that Mr. Blankenship, suffering from Crohn's disease as he was, falling from the truck and with his intestine in the condition that it is and falling on his belt buckle as he related to you could have caused this perforation to the intestinal wall? A. It's conceivable that a fall with either a belt buckle pushing in to there or a tremendous increase in abdominal pressure caused by a muscular contraction of the abdomen in reaction to the fall could have increased the pressure around that bad area of bowel enough to cause it to perforate. .... Q. ....In other words, there wouldn't be an effort by the body to heal itself through the formation of this abscess if there weren't already a perforation present? A. Correct. Q. Okay. So we've got to have the perforation there first. And is that perforation that you described a part of the Crohn's disease that you've earlier described-- A. Yes. Q. --the presence of that perforation in Mr. Blankenship's intestine? A. The perforation-- Crohn's disease, the definition of Crohn's disease does not include perforation, but the perforation was present in bowel that was involved by Crohn's disease. Q. Okay. Is there any way of determining how long that perforation had been present? A. Not for sure, not for sure. It would not have been present for months. Q. Okay. A. It's very difficult to pin it down exactly when the perforation would definitely have occurred. Q. Okay. As well as the fact as how far progressed the abscess was when you opened him up? It's probably not -- it probably differs from person to person; would it not? A. Yes, probably. Q. Okay. So I mean by looking at the degree or extent of the abscess that you found, it wouldn't be possible to backdate and say this is when it started, the abscess started reacting to the perforation that was present in the intestine? A. Certainly I couldn't tell by looking at it. I would have to take the history into consideration as well. Q. Okay. Now you were asked the question -- or you answered the question as to whether this belt buckle incident had anything to do with it, and you used the term conceivable, that it could have put enough pressure in the abdominal area to in essence force this perforation to take place. Now my question to you is: Can you state that to a reasonable degree of medical certainty? A. The -- a perforation in Crohn's disease does not require the a high intra-abdominal pressure or something hitting it in order to perforate. It can perforate without any trauma being inflicted. Historically, his symptoms started right at the time he fell from the truck so I can be reasonably sure that something -- some event occurred at that time. Q. Okay. A. Whether it was -- whether it was an abscess that had already formed inside the abdominal cavity that perforated out through the abdominal wall or whether it actually -- the fall actually caused the perforation itself, I cannot say with any medical certainty. Q. Okay. So essentially, we could be looking at, if you're satisfied that by history something occurred at that time of this fall, we still don't know what it is that occurred at that time? It could have been one of several things; right? A. Yes, yes. One of two or three things, I think. Q. It could have been the actual perforation taking place, it could have been the -- it could have been the abscess going through the old incision? A. Yes. Q. What else could it have been? A. Well, I think those two things are the most likely possibilities, but which one of those it was, I can't be certain. .... Q. But that -- but that process of going through the abdominal wall is a process that had already started-- Had it not? --as far as the presence of the abscess? The abscess was there? There had to be an abscess there in order to go-- If we assume something happened when he fell and the abscess was already present, but it was forced through the abdominal wall at that injury with this incident, then I guess my question is: Wouldn't he have needed surgery anyway? A. If we're assuming that that's the event that occurred. Q. Yes. A. And there was already an abscess inside the abdominal cavity, he would have required surgery anyway. (Ex. P, pp. 6-7; 9-10; 14-17; 18) Defendants stipulated that the medical treatment claimant received was reasonable and necessary. The parties stipulated that there was no permanent impairment, that claimant received an injury on July 5, 1985 that arose out of and the course of his employment, and that claimant's rate of compensation was $311.35 per week. APPLICABLE LAW Section 85.27, Code of Iowa, states in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 5, 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. 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (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). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation 555(17)a. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Expert testimony that a condition could be caused by a given injury coupled with additional, non-expert testimony that claimant was not afflicted with the same condition prior to the injury was sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966). ANALYSIS The sole issue on appeal is whether the medical treatment claimant underwent and the time he missed from work are causally connected to his fall on July 5, 1985. Claimant's fall on July 5, 1985 was not a serious incident. The incident on that date did not cause claimant's Crohn's disease, or the abscess, as the evidence shows both preexisted the incident. At most, the fall on July 5, 1985 merely brought to light the need for surgery to remove the abscess. Dr. Ver Steeg testified that this surgery would have needed to be performed even absent the fall. Dr. Ver Steeg was equivocal in his statement as to causation. He stated that the perforation could occur without any trauma. He listed two possible likely causes for claimant's condition. A probability is required. A possibility is insufficient. Claimant also experienced pain in his abdomen a month before his fall on July 5, 1985. Claimant has failed to carry his burden to causally connect his fall on July 5, 1985 to the disability he presently suffers. In addition, even if a causal connection were to be assumed, claimant has failed to show that the fall of July 5, 1985 materially aggravated his condition. The medical testimony indicates that the abscess existed prior to the fall on July 5, 1985, and that surgery would have been required to correct the abscess even absent the fall. At most, the fall on July 5, 1985 only slightly aggravated claimant's preexisting condition. More than a slight aggravation is required under the law. Thus, claimant is not entitled to medical benefits related to treatment of the abscess. Claimant is not entitled to temporary total disability benefits for the time off work following the surgery to treat the abscess. Claimant is entitled to $39.00 for emergency treatment in Oshkosh, Wisconsin, and $80.00 for the initial visit with Dr. Ver Steeg prior to the discovery that claimant's condition was not a work-related hernia, but rather a nonwork-related abscess stemming from his Crohn's disease. FINDINGS OF FACT 1. Claimant was employed by defendant employer as an over-the-road truck driver. 2. Claimant suffered an injury that arose out of and in the course of his employment with defendant employer on July 5, 1985. 3. Claimant underwent surgery on July 9, 1985 and was found to have a perforation of the abdominal wall. 4. Prior to July 5, 1985, claimant was diagnosed as having Crohn's disease. 5. Claimant's perforation of the abdominal wall was caused by an abscess that existed prior to July 5, 1985. 6. Claimant's medical bills except $39.00 to Oshkosh Emergency Services and an initial charge by Dr. Ver Steeg in the amount of $80.00 were for surgery and treatment of the abdominal wall perforation and abscess. 7. Claimant did not suffer any permanent disability as a result of his fall on July 5, 1985. 8. Claimant was off work from July 9, 1985 until September 10, 1985 as a result of his surgery on July 9, 1985. 9. Claimant's rate of compensation was $311.35 per week. CONCLUSIONS OF LAW Claimant has failed to prove that his medical bills for diagnosis, surgery, and treatment of his abdominal wall perforation and intestinal abscess and his time off work are causally related to his injury of July 5, 1985. Defendants are responsible for claimant's medical bills for $39.00 to Oshkosh Emergency Services and $80.00 to Dr. Ver Steeg for diagnosis of claimant's condition. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants are to pay claimant's medical bills in the amount of thirty-nine dollars ($39.00) to Oshkosh Emergency Services and eighty dollars ($80.00) to Dr. Ver Steeg for the diagnosis of claimant's condition. That claimant is to pay the costs of the appeal including the transcription of the hearing procedure. Signed and filed this 20th day of May, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Kurt L. Wilke Attorney at Law 704 Central Avenue Fort Dodge, Iowa 50501 Mr. Tito Trevino Attorney at Law P.O. Box 1680 Fort Dodge, Iowa 50501 1108.50 Filed May 20, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARY L. BLANKENSHIP, Claimant, File No. 798884 vs. SMITHWAY MOTOR EXPRESS, INC., A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1108.50 Claimant failed to show a causal connection between his fall from a truck and surgery for an abdominal wall perforation. The medical testimony failed to establish a causal connection, but did establish that the abscess which caused the perforation preexisted the injury and the surgery in question was inevitable. Claimant was awarded the medical costs of emergency treatment and diagnostic procedures. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARY L. BLANKENSHIP, Claimant, vs. FILE NO. 798884 SMITHWAY-MOTOR EXPRESS, INC., A R B I T R A T I 0 N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO. Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Gary L. Blankenship, against Smithway-Motor Express, Inc., his employer, and Liberty Mutual Insurance Co., the employer's insurance carrier. Blankenship alleges that he sustained an injury to his abdomen in a fall from his employer's truck that occurred on or about July 5, 1985. He seeks compensation for temporary total disability and payment of medical expenses incurred in treating his ailment. The employer does not dispute that claimant had an ailment and does not dispute the reasonableness or necessity of the expenses incurred in treating him. The primary issue in this case deals with whether or not claimant's ailment is work related and constitutes an injury that arose out of and in the course of his employment. The case was heard at Fort Dodge, Iowa on September 22, 1986 and was fully submitted upon conclusion of the hearing. The record consists of testimony from Gary L. Blankenship, Karen Blankenship and Darrell W. Garrett. The record also includes claimant's exhibits A through J, N, 0 and P and defendants' exhibits 1 and 2. The evidence concerning stress as a possible contributing factor in this claim is hereby held to be admissible and is considered as part of the evidence in the case. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at hearing was considered when deciding the case. Gary L. Blankenship is a 49 year old married man who was employed by Smithway-Motor Express, Inc., as an over-the-road truck driver for a period of three or four months during 1985. Blankenship testified that on July 5, 1985, he fell off the back of the trailer, landed on his feet and then fell backwards onto his behind. He stated that he was wearing a cowboy-style belt buckle with a claw on the back that pinched his stomach when he BLANKENSHIP V. SMITHWAY-EXPRESS, INC. Page 2 landed. He stated that he experienced pain and on the following day observed swelling on his stomach. Blankenship continued to perform his employment duties which led him to Osh Kosh, Wisconsin. He testified that he then observed a big red mark on his stomach where the buckle had pinched him and that it kept growing larger. Blankenship reported the incident at the employer's terminal in Osh Kosh, was examined by a physician in Osh Kosh and then returned to Fort Dodge where he sought medical care at Trinity Regional Hospital. Claimant was admitted to the hospital where he was treated by Kyle R. Ver Steeg, M.D. As shown in exhibits 1 and P, Dr. Ver Steeg initially diagnosed Blankenship's condition as a strangulated hernia but upon performing surgery discovered an abdominal wall abscess that was actually an extension of an abscess that was located inside the abdomen. It had resulted from a perforation of the lower small intestine due to an ailment known as Crohn's disease. The surgical procedure that was performed consisted of removing the pus from the abscess and excision of the portion of the intestine that was effected by the Crohn's disease (Ex. P, p. 7, Ex. 1, pages 2 & 14). Following the surgery claimant was treated by antibiotics and made an apparently normal recovery. There is no evidence in the record that suggests that the claimant has suffered any permanent disability from the ailment or the procedure. Blankenship indicated that approximately a month earlier he had experienced discomfort while tightening a chain on the truck. He considered his job to be stressful due to being away from home for extended periods. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 5, 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 supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W.2d 35, 38 (1934), discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury.... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... BLANKENSHIP V. SMITHWAY-EXPRESS, INC. Page 3 A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, hot through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (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). The events which claimant related as having occurred, namely the fall from the truck on July 5, 1985, having experienced discomfort approximately a month earlier are accepted as correct. Claimant's affliction with Crohn's disease was noted in 1984 when he underwent a surgical repair of a hernia at St. Anthony Regional Hospital in Carroll, Iowa (Ex. 2, p. 30). The last two pages of exhibit 2 indicate that claimant had some abnormality in his abdomen in 1977. Dr. Ver Steeg described Crohn's disease as an ailment in which the intestine becomes inflamed, swollen and susceptible to blockage, bleeding or perforation. He could not identify any specific cause for the ailment but stated that stress could be an aggravator of the condition. He described the condition as one which has no ultimate cure and which sometimes is chronic as evidenced by relapses and remissions (Ex. P, pp. 8 & 9). Dr. Ver Steeg expressed the opinion that it is possible that a fall with either a belt buckle pushing in or an increase in abdominal pressure caused by muscular contraction in reaction to a fall could have caused an intestine that was afflicted with Crohn's disease to perforate (Ex. P, pp. 9 & 10). Dr. Ver Steeg described the abscess that he found as part of the reaction of the body to heal itself in response to a perforation and that a perforation would have to exist before the abscess would form (Ex. P, pp. 14 & 15). Dr. Ver Steeg went on to state that a perforation in a person that has Crohn's disease can occur without any trauma. Dr. Ver Steeg did not express an opinion regarding how long the perforation had been presented but he stated it would not have been present for an amount of time measured in months (Ex. P, p. 15). Dr. Ver Steeg concluded that the event that claimant experienced could have been the actual perforation of the intestine or it could have been an existing abscess being pushed through the old incision through the abdominal wall (Ex. P, p. 17). He could not specify which event BLANKENSHIP V. SMITHWAY-EXPRESS, INC. Page 4 or scenario was more likely (Ex. P, pp. 16 & 17). There is one additional possible scenario that is not discussed by Dr. Ver Steeg. It is possible that the abscess was present and that through the impact of the fall and pinching with the belt buckle as claimant described, he simply became aware of the abscess. Furthermore, common knowledge shows that an abscess does not form instantaneously. It is something which develops through the passage of time. It would seem that if there were no abscess at the time of the fall, that there would have been nothing to be forced through the abdominal wall. It is, of courser possible that a defect in the abdominal wall was preexisting and that when the abscess formed it formed on both sides of the wall at the same time. It would seem likely that if the perforation of the intestine occurred at the time of the fall from the truck, the passage of some amount of time would have been necessary before an abscess could have formed. When all the possibilities are considered, the most likely would seem to be that the abscess preexisted the fall and that the fall forced it to pass through the abdominal wall. It is this scenario that will be used in analyzing this case. The other possible scenarios cannot be excluded but their likelihood is less than the likelihood that the fall caused a preexisting abscess to pass through the abdominal wall. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 5, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). A cause is proximate if it is a substantial factor in bringing about the results; it need not be the only cause.. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). According to Dr. Ver Steeg, claimant's abscess would have required surgical treatment even if it had not been forced through the abdominal wall (Ex. P., pp. 18-20). There is no indication in the record that the method of treatment, the cost of treatment or the amount of time required for recovery from treatment would be any different if the abscess had been discovered prior to the time it passed through the abdominal wall (Ex. P, p. 21). It is found that the injury claimant sustained on July 5, 1985 was a very minor injury. The injury did, however, allow the preexisting abscess to be discovered. All of the disability and medical expense in this case is related to treatment of the abscess, rather than of the minor injury. There are, however, a few limited expenses that were initially incurred that are treatment of the original injury. The employer has an obligation to provide reasonable medical care under section 85.27. Reasonable care includes whatever care is necessary in order to diagnose the condition, even though the diagnosis ultimately shows the complaints to be non-work related. Pote v. Mickow Corporation, File No. 694639, review-reopening decision June 17, BLANKENSHIP V. SMITHWAY-EXPRESS, INC. Page 5 1986. The decision concerning whether medical care is reasonable and related to an injury is to be made based upon the facts known or apparent at the time the care is being provided. In this case claimant did sustain an injury that arose out of and in the course of his employment. It was initially believed by the treating physicians to be a hernia. Defendants therefore have a limited liability for the expenses of treatment, namely $39.00 to Osh Kosh Emergency Services as shown in exhibit A, and the initial charges from Dr. Ver Steeg on July 9, 1985 in the amount of $80.00 as shown in exhibit E. Those expenses were incurred when the treating physicians believed that they were dealing with a work induced hernia. Those expenses were part of the work-up necessary to determine whether or not the complaints were work related. Where there was, in fact, an injury that was work related, those expenses do constitute reasonable care for that injury. The balance of the expenses which claimant submits are found, however, to be treatment of the abscess, the non-work related condition, for which the employer is not liable. Claimant seeks recovery of the costs in the amount of $15.00 for a report from Family Health Clinic (Ex. N) and $67.70 for the deposition of Dr. Ver Steeg (Ex. 0). (Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33) No claim has been made for an expert witness fee for Dr. Ver Steeg but a reasonable fee not to exceed $150.00 will also be allowed as costs. FINDINGS OF FACT 1. On July 5, 1985, Gary L. Blankenship was a resident of the State of Iowa, employed as an over-the-road truck driver by Smithway-Motor Express, Inc. operating out of its Fort Dodge, Iowa terminal. 2. Blankenship was injured on July 5, 1985 when he fell from the rear of his trailer to the ground. 3. The injury consisted of causing a preexisting abdominal abscess to penetrate claimant's abdominal wall. 4. The preexisting abscess was a condition which would have eventually required treatment of precisely the same nature as was performed on Blankenship. 5. The injury was quite minor and merely allowed the existence of the abscess to be discovered. It did not in any way cause the abscess to be more or less severe or more or less disabling. 6. The injury is found to have affected only the time at which the abscess was discovered and treatment for it conducted. 7. Though the injury was minor, some medical care for claimant's complaints was warranted and the amounts found to be reasonable are the charges from Osh Kosh Emergency Services in the amount of $39.00 and from Dr. Ver Steeg for his initial care in the amount of $80.00. The balance of the medical expenses incurred by claimant are found to be related to the abscess and are therefore not reasonable care for the work related injury. BLANKENSHIP V. SMITHWAY-EXPRESS, INC. Page 6 8. The injury produced no disability, temporary or permanent, and all disability that existed is related to the abscess, rather than the work injury. 9. A reasonable expert witness fee for Dr. Ver Steeg is limited to no more than $150.00. 10. Claimant has failed to introduce evidence that employment related stress was a substantial factor in bringing about the Crohn's disease, the abscess or any of his disability or medical expenses which are the subject of this proceeding. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Gary L. Blankenship sustained an injury on July 5, 1985 that arose out of and in the course of his employment with Smithway-Motor Express, Inc. 3. The employer is responsible for the reasonable medical expenses related to that injury in the total amount of $119.00. 4. Claimant has failed to prove that the injury was a proximate cause of any disability, either temporary or permanent, or that the injury is a proximate cause of the surgery and other medical care which the claimant received on or after July 9, BLANKENSHIP V. SMITHWAY-EXPRESS, INC. Page 7 1985. 5. Where a work related injury occurs and symptoms exist, reasonable medical care includes care that is reasonable under the circumstances then known or apparent. It includes reasonable diagnostic procedures, even if the care and procedures ultimately show the complaints to not be work related. ORDER IT IS THEREFORE ORDERED that defendants pay claimant's medical expenses with Osh Kosh Emergency Services in the amount of thirty-nine and no/100 dollars ($39.00) and with Kyle Ver Steeg, M.D., P.C., in the amount of eighty and no/100 dollars ($80.00). IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, formerly Iowa Industrial Commissioner Rule 500-4.33 including an expert witness fee for Dr. Ver Steeg in the amount of one hundred fifty and no/100 dollars ($150.00), the cost of reporter's time and transcript to Jackie Thompson in the amount of sixty-seven and 70/100 dollars ($67.70), and the cost of a medical report in the amount of fifteen and no/100 dollars ($15.00). IT IS ORDERED that in all other respects claimant's claim for benefits for temporary disability and section 85.27 benefits is denied. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by the agency pursuant to Division of Industrial Services Rule 343-3.1, formerly Industrial Commissioner Rule 500-3.1. Signed and filed this 24th day of December, 1986. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Kurt L. Wilke Attorney at Law 704 Central Avenue Fort Dodge, Iowa 50501 Mr. Tito Trevino Attorney at Law P. 0. Box 1680 Fort Dodge, Iowa 50501 1108.50; 1402.30 1801; 2206; 2501 Filed December 24, 1986 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER GARY L. BLANKENSHIP, Claimant, vs. FILE NO. 798884 SMITHWAY-MOTOR EXPRESS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1108.50; 1402.30; 1801; 2206; 2501 Claimant was injured in a fall from a truck. The injury was an aggravation of a preexisting intra-abdominal abscess that had resulted from an underlying condition known as Crohn's disease. The injury was found to have caused the abscess to pass through the abdominal wall. The abscess was a condition which would have required surgical treatment and there was no showing that the injury in any way had any effect upon the abscess other than as it related to allowing the abscess to be discovered. Claimant was therefore denied compensation for temporary total disability during the period of treatment. His claim for medical expenses related to the surgical treatment of the abscess was denied. Claimant was, however, allowed to recover the cost of his initial medical treatment. It was held that the decision on whether medical care is reasonable and related to an injury is to be made based upon the facts known or apparent at the time the care is being provided. Since claimant had sustained an injury in his employment and experienced symptoms for which he sought care, the employer was held responsible for the cost of care, including diagnostic procedures, up to the point at which it was determined that the work injury was minor and that the symptoms were primarily due to the underlying abscess condition. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JEANETTE TUBERTY, : : Claimant, : : vs. : : File No. 798936 HAROLD DICKEY TRANSPORT, INC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY & : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a hearing in arbitration brought by Jeanette Tuberty against Harold Dickey Transport, Inc., employer, and United Stated Fidelity and Guaranty, insurance carrier, defendants for benefits as the result of an alleged injury which occurred on June 25, 1985. A hearing was held in Des Moines, Iowa, on July 25, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Jacques D. Schira. Defendants were represented by Iris J. Post. The record consists of the testimony of Jeanette Tuberty, claimant; Dan DeWitt, claimant's witness; Marie Reif, claimant's witness; Matthew Solon, private investigator; Dave Dickey, employer; Candace Kaelber, vocational rehabilitation specialist; Stan Schrock, defendants' witness; Kent Jayne, vocational rehabilitation supervisor; claimant's exhibits 1 through 9 and 11 through 14; and defendants' exhibits A through R. Claimant's exhibits 7 and 8 were admitted into evidence over the objection of defendants because they were timely served. Claimant's exhibit 10 was not admitted into evidence because it was not timely served pursuant to paragraph seven of the hearing assignment order. At hearing, defendants presented a brief description of disputes. Claimant submitted a description of disputes and a supporting hearing brief. The deputy ordered a transcript of the hearing, which lasted nine hours. Both parties submitted excellent posthearing briefs. preliminary matter The fact that claimant received $2,500 under an agreement pursuant to a partial commutation prior to hearing on April 30, 1986, in order to pay several bills, was not a Page 2 determination of claimant's rights or defendants' liabilities in this case. Therefore, the proper proceeding is an arbitration proceeding rather than a review-reopening proceeding. Iowa Code section 86.14. Therefore, claimant was permitted to amend the petition at the time of hearing to an arbitration proceeding rather than a review-reopening proceeding as originally shown on the original notice and petition (transcript pages 5 and 6). Claimant moved to amend the petition, in particular, section 11 entitled, "Parts of the Body Affected or Disabled," to add the word "knee." Defendants objected to the motion to amend the petition to add the word knee because this part of the body did not appear on the original notice and petition and because the knee injury was predicated upon the cumulative injury doctrine which was not discussed at the prehearing conference and not listed as a hearing issue in this case on the hearing assignment order (tr. pp. 7 & 8). It is not necessary to rule on claimant's motion to amend the petition to include a knee. Strauss v. Bil-Mar Foods, file number 833243, (January 18, 1991); Morrison v. City of Ames, file numbers 843176. 979253. 979254 (April 23, 1991); Boatman v. Griffin Wheel Company, file number 372267 (April 6, 1988). An application for arbitration is not a formal pleading subject to technical rules of pleading. There is no requirement for the same conformity of proof to pleading as in ordinary actions. Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369, 373 112 N.W.2d 299 (1961). The same has been said of workers' compensation review-reopening actions. Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848, 850 (Iowa 1969). An arbitration petition may state the claim in a general manner. Technical rules are not observed and defendants need only be generally informed as to the basic material facts upon which the employee relies as a basis for compensation. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 21-5. Technical forms of pleading have been abolished (Iowa Rule of Civil Procedure 67). Each averment of a pleading shall be simple, concise and direct (Iowa R.Civ.P. 69B). Iowa Law does not require the petition to identify a specific legal theory. A pleader is not required to allege a legal theory or spell out elements of a cause of action as in common law pleading. Haughland v. Schmidt, 349 N.W.2d 121, 123 (Iowa 1984). A petition is sufficient if it apprises defendants of the incident giving rise to a claim and the general nature of the action. State Savings Bank of Hornich v. State Bank of Onawa, 368 N.W.2d 161, 163 (Iowa 1985). The rules of civil procedure require only that fair notice of a claim be given. Schill v. Careage Corporation, 353 N.W.2d 416 (Iowa 1984). The key to pleading in an administrative matter is nothing more than or less than the opportunity to prepare and defend. Hoenig v. Mason & Hanger, Inc., 162 N.W.2d 188, 192 (Iowa 1968). Page 3 The industrial commissioner and deputies are required to make decisions based on the facts presented even if they are different or contrary to the theory pled. Johnson v. George A. Hormel & Company, (Appeal Dec. June 21, 1988); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision 1989); Shank v. Mercy Hospital Medical Center, (App. Dec. August 28, 1989). Any variance between pleading and proof is immaterial unless it misleads defendants to his prejudice. Coughlan, 164 N.W.2d 848; Yeager, 253 Iowa 369, 373, 112 N.W.2d 299. There is no evidence in this case that defendants have been surprised or misled to their prejudice, nor did defendants allege surprise or prejudice. On the contrary, defendants were well aware that claimant alleged a knee injury and, as will be seen, claimant's very capably defended themselves on this issue. Therefore, even though defendants stipulated that claimant received an injury arising out of and in the course of employment with employer and at the same time dispute an injury to the knee, it then becomes necessary to treat the issue of injury arising out of and in the course of employment with employer and define what parts of the body, if any, were injured in this alleged incident. issues findings of fact injury It is determined that claimant sustained an injury to her right shoulder, neck and lumbar spine which arose out of and in the course of employment with employer on June 25, 1985. It is further determined that claimant did not sustain an injury arising out of and in the course of employment with employer which respect to her left knee or either one of her knees which arose out of and in the course of employment with employer. Claimant started to work for employer in April of 1973 and continued to work for a period of approximately 12 years until June of 1985 when she received this injury. A formal application for the job of truck driver was made out by claimant on December 15, 1975 (Ex. Q, pp. 8-10). Claimant worked for employer off and on for 12 years, full time the last two or three years (ex. C, p. 61). Claimant, an over-the-road truck driver, testified that she was struck in the right head, neck and shoulder by a box of bacon which weighed approximately 70 to 75 pounds while unloading her truck at Omaha, Nebraska, on Tuesday, June 25, 1985 (tr. pp. 61 & 62). She continued to work for a few more days driving, loading and unloading, but went to see her personal physician (with the consent of her employer) on Saturday, June 29, 1985 (exhibit O, pp. 2 & 3; ex. Q, p. Page 4 48). Claimant's right hand and arm are dominant. Donal D. Hill, D.O., saw claimant for neck ache, right elbow and right shoulder pain and took claimant off work on June 29, 1985 (ex. 2, p. 30). Dr. Hill ordered an x-ray of the cervical spine on July 8, 1985, which showed no abnormality of the cervical spine, no evidence of fracture or subluxation, no destructive process and no unusual degenerative disease was visible (ex. 2, p. 27; ex. 3, p. 52). Dr. Hill sent claimant to see James B. Worrell, M.D., a neurologist, for consultation on August 1, 1985. Dr. Worrell's impression was that claimant had received a cervical strain syndrome with some component of a plexus stretch. He recommended discontinuing physical therapy but continued to keep claimant off work (ex. 5, p. 2). Dr. Worrell performed an electromyographic study which was normal and did not demonstrate any evidence for a radiculopathy (ex. 5, p. 1). Dr. Worrell's final report on October 7, 1985, felt that her prognosis should be good although it was a bit too early to say with any degree of certainty. He concluded by stating, "I have not come up with any serious underlying nerve or muscle disease." (ex. 5, p. 4). Dr. Hill admitted claimant to the hospital from September 30, 1985 to October 4, 1985, for traction and physical therapy because of severe, persistent cervical thoracic spasm myalgia. He found tenderness and spasm throughout C2 through C7 with the right more pronounced than the left; trapezius spasm with pain into the right elbow; and some right low back tenderness with right leg numbness. She had very poor resolution of her spasms and pain as a result of this hospitalization. Dr. Hill said her return to work could not be determined at that time (ex. 2, pp. 23-25). Dr. Hill referred claimant to Mitchell Ross, M.D., a physician in the department of neurology at the University of Iowa Hospitals and Clinics who, November 14, 1985, found tenderness to palpation in the areas of C2-C7 on the right side (ex. 2, pp. 1 & 2). Dr. Hill then referred claimant to Marc E. Hines, M.D., a board certified neurologist, who saw claimant on March 14, 1986, and admitted her to the hospital from March 18, 1986 to March 21, 1986. He reported that in spite of extensive treatment claimant still complained of neck pain, limitation of movement of the neck, pain radiating down into the right shoulder and right arm, episodic numbness of her right leg and some low back pain. He found some trigger points in the cervical area, particularly in the medial trapezius and the right scapular area. The right upper extremity neurological examination was otherwise essentially normal. A myelogram revealed mild central disc protrusion at L3-4 and L4-5, but the cervical and thoracic areas were completely normal (ex. 3, p. 59; ex. J. Volume 2, p. 7). His final diagnosis was lumbosacral disc herniation with back pain and leg numbness and cervical traction injury secondary to and related to the Page 5 injury of June 1985 (ex. 3, pp. 62-63). The myelogram report ordered by Dr. Hines read that (except for mild central disc protrusion at L3-4 and L4-5 levels) the myelogram was unremarkable (ex. 3, p. 59). An unenhanced/ enhanced CT scan of the head on July 24, 1986, ordered by Dr. Hines, was completely normal (ex. 3, p. 61). On April 15, 1986, Dr. Hines reported that unfortunately claimant had not had any improvement. On May 1, 1986, he reported that she was doing only moderately well with basically the same complaints. On June 3, 1986, Dr. Hines stated, "I feel that she has reached the point of maximum healing." (ex. 3, pp. 1 & 40). On July 22, 1986, Dr. Hines noted that claimant had a very hot and swollen left knee joint, which revealed it has had two laparoscopies as well as steroid injections and that an orthopedist had informed her that the cartilage was injured and that a total knee replacement may be necessary. On the previous Sunday, her left leg gave out while she was carrying a laundry basket a quarter-full of wet clothes. Dr. Hines felt that based on the patient's level of subjective complaints, symptoms and signs, she seemed to be significantly disabled with back pain and joint pain; however, he added that the degree of disability seems at times to exceed the extent of the physical findings (ex. 3, pp. 47 & 48). In his deposition (given on September 21, 1988) Dr. Hill testified that the right shoulder area spasm and right elbow epicondylitis were attributable to the injury which she experienced as work. On April 18, 1987, Dr. Hill could only state that the lumbar disc injury could have been illicited by her June 1985 trauma (ex. 2, pp. 8 & 9; ex. 11, p. 15), but in his deposition he finally concluded that both her neck and back pains were caused by this injury. He stated that claimant's diagnosis was ligamentous strain and spasm which developed into chronic inflammatory reaction which then caused the chronic spasticity of the neck and low back (ex. 11, pp. 14 & 15). Dr. Hill eventually concluded that both the neck and back problems were caused by this injury as revealed by this dialogue: Q. Is it your opinion then, to a reasonable degree of medical certainty, that the injuries and diagnosis that you have just stated were the result of the June 25, 1985, injury? A. Yes, sir. Q. Is that consistent with the history that you obtained? A. Yes, sir. (exhibit 11, page 17) Dr. Hines stated in a letter on July 2, 1987, with respect to the neck, right shoulder and low back, "It is my Page 6 opinion at this time that the patient's injuries and the permanent medical impairment which she is experiencing at this time are the direct result of the accident and injury which she was involved in on June 28 [sic], 1985." (ex. 3, p. 9). Dr. Hines also stated in another letter on September 16, 1987, that with respect to her neck and back pains and left knee problem: It is my opinion that these problems are secondary to her injury on June 25, 1985 and that this was in fact the cause of her injuries. Also, I feel that the increasing difficulties with her knee are secondary most of all to the difficulties which she has with her back causing her to walk abnormally which has precipitated an arthralgia and arthritic difficulty in her knee. (exhibit 3, page 10) Again with respect to her neck and back, Dr. Hines stated on June 8, 1990, "[I]t is my opinion that this is related to her initial work-related injury, as stated in my previous deposition." (ex. 3, p. 45). In his deposition given on March 11, 1989, Dr. Hines testified that in his opinion the injury to the neck, back and knee were related to the accident of June 1985 when the 75 pound box of meat fell on the right shoulder and neck. He said that the knee injury was related to the problems with the back because her back injury changed her posture and weight bearing (ex. 12, pp. 61, 62 & 66). On May 2, 1990, Dr. Hill wrote to claimant's attorney: I feel her knee complaints are of bursitis and arthritic nature, but I would be unable to say it was definitely from her accident. One can hypothesize that her knee degeneration could partially be due to gait changes attributed to pain in her low back. However, her weight condition, history of farm labor, and family history of severe degenerative osteoarthritis would also be likely the cause of her knee degeneration. (exhibit 2, page 14) Claimant's history for left knee injury and complaints dates back to May 3, 1976 (ex. J, volume 2, pp. 48-52). A radiology consultation dated January 30, 1987, states that patient fell two months ago and felt pain in the medial portion of her left knee (ex. J. vol. 1, p. 63). On February 4, 1987, Donald Berg, M.D., an orthopedic surgeon, acting as a consultant, diagnosed claimant had bursitis of the left knee and exogenous obesity. He stated that claimant had gained 45 pounds since the injury to her back and he did not feel that she would improve until she loses weight (ex. J, vol. 2, p. 45). Page 7 Claimant saw Patrick M. Sullivan, M.D., an orthopedic surgeon, on March 30, 1987. He stated that claimant suffered a forced flexion injury to her left knee in November 1986. The knee was locked at that point and a few days later worked itself free. Since then she has had effusion and acute pain. He recorded that the patient is a lady of short stature (5'5" tall) that weighs about 240 pounds. He said the patient has early degenerative arthritis of the medial compartment of the left knee. In addition, it appears that she may have a degenerative tear of the meniscus (ex. 4, pp. 1 & 2). On July 14, 1987, he performed an arthroscopy of the left knee with chondral shaving of both lateral and medial femoral chondyle (ex. J. vol 2, pp. 20-22). On May 8, 1989, Dr. Sullivan recorded that two months ago claimant had a twisting episode of the right knee which caused a second degree right medial collateral ligament injury and possible occult meniscal injury (ex. 4, p. 4). In a letter on October 6, 1988, Dr. Sullivan wrote to claimant's attorney, "We believe this is primary degenerative arthrosis. There is no reason to believe that the degenerative arthrosis is secondary to her back problem or her employment. However, once degenerative arthrosis is present, it can be aggravated by physical activity." (ex. 4, p. 6). In his deposition, on July 26, 1989, Dr. Sullivan testified that his records did not document and he had no recollection that claimant reported to him that she was injured at work in June of 1985 (ex. 14, p. 13). Dr. Sullivan's expert medical opinion was that this injury of June 25, 1985, was not the cause of her left knee problem. Defendants' counsel asked Dr. Sullivan is he had an opinion as to whether a change in posture or weight bearing (because of an alleged back injury in June of 1985) could have caused this problem with degenerative arthritis in her knee. Dr. Sullivan responded, "I don't think -- no. I don't think the injury to the back is related to the degenerative arthritis problem in the knee." "Is that opinion to a reasonable degree of medical certainty?" "Yes." (ex. 14, p. 15). Wherefore, based upon the foregoing evidence, it is determined that claimant sustained an injury to her right shoulder, neck, right arm, and low back on June 25, 1985, which arose out of and in the course of employment with employer. It is further determined that based upon the foregoing evidence, claimant did not sustain an injury to either her left knee or her right knee on June 25, 1985, which arose out of and in the course of employment with employer. The opinion of Dr. Sullivan is preferred over the opinion of Dr. Hines, since Dr. Sullivan is an orthopedic surgeon and the treating physician for both of her knees. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Dr. Sullivan as the treating physician had more opportunity to form his expert opinion. Lemon v. Georgia Pacific Corp., II Iowa Industrial Commissioner Report 204, 205 (App. Dec. Page 8 1981); Clement v. Southland Corp, II Iowa Industrial Commissioner Report 56, 58 (1981). In addition, Dr. Sullivan's expertise as an orthopedic surgeon gives his testimony greater weight. Reiland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979). Even though Dr. Sullivan said that work could aggravate the arthritis, he specifically stated that her work and her back injury did not do so. Therefore, claimant's knee problems were not caused by the specific incident which occurred on June 25, 1985, nor are they the result of cumulative trauma during the course of her employment for employer. causal connection-entitlement-temporary disability It is determined that the injury of June 25, 1985, is the cause of temporary disability. The same remarks and quotes in the foregoing section of Dr. Hill and Dr. Hines that established that the employment caused the injury also established that the injury was the cause of claimant's time off work for this injury. It is determined that claimant is entitled to 48.286 weeks of healing period benefits for the period from June 29, 1985, when Dr. Hill took claimant off work, until June 3, 1986, when Dr. Hines stated that claimant had attained maximum medical improvement. Citations to the record for this period of time are given in the foregoing section. Actually, Dr. Hines noted in his records on April 15, 1986, that claimant had not had any improvement. On May 1, 1986, he said she had the same complaints. On June 3, 1986, he said that she had reached the point of maximum healing. Thus, even though it appears from the records that claimant had failed to improve after April 15, 1986, claimant, nevertheless, has been allowed temporary disability benefits for another month and one-half, until June 3, 1986, when Dr. Hines unequivocally stated that she had reached the point of maximum medical healing (ex. 3, pp. 1 & 40). Dr. Hines explained in his deposition, "There certainly seemed to be enough time having transpired in a year for her to have improved as much as possible." (ex. 12, p. 63). Dr. Hines granted that claimant still had problems but he felt that maximum healing had occurred and shortly after that gave claimant an impairment rating on August 22, 1986. He further stated that he felt on June 3, 1986, it was time for claimant to begin some work hardening (ex. 12, p. 63). Even though Dr. Hill disputed claimant's ability to work one hour a day waitressing as a form of gradual rehabilitation as recommended by Dr. Hines on June 3, 1986, nevertheless, this does not contradict or refute Dr. Hines' opinion that claimant had, in fact, reached the point of maximum medical improvement (ex. 2, pp. 4 & 5). Page 9 Dr. Hill testified in his deposition that claimant had reached a plateau of healing on March 3, 1987, however, he said it was because he determined on this date that claimant would not be able to return to truck driving and that is why she had probably arrived at maximum healing at this point (ex. 11, p. 22). It should be noted however, that returning to one's former employment is not the test of maximum medical improvement or healing, but rather, a totally different factor used to determine the end of healing period under Iowa Code section 85.34(1). Thus, Dr. Hill's determination of maximum medical improvement is based upon an erroneous standard. Furthermore, a close examination of Dr. Hill's office notes from May 1986 through March 3, 1987, a total of nine entries, does not contain one single comment to the effect that claimant had shown any improvement. On the contrary, she continued to have problems with her neck, back, and knee as well as depression (ex. 2, pp. 32-36). Wherefore, it is determined that claimant is entitled to 48.286 weeks of healing period benefits from June 29, 1985, to June 3, 1986. causal connection-entitlement-permanent disability It is determined that the injury of June 25, 1985, was the cause of permanent disability. The statements and quotes of Dr. Hill and Dr. Hines in the section entitled "Injury" which establish that the employment was the cause of the injury also establish that the injury was the cause of permanent disability. The parties stipulated that in the event that it was determined that claimant had sustained a permanent disability, that the type of permanent disability is industrial disability to the body as a whole. It is determined that claimant has sustained a 45 percent industrial disability to the body as a whole and that claimant is entitled to 225 weeks of permanent partial disability benefits. Claimant did not sustain the burden of proof by a preponderance of the evidence that she is permanently and totally and disabled. An overview of claimant's industrial disability is as follows: Even though the physical injury has only been described as tenderness, spasm, trigger points, cervical strain, and plexus stretch, nevertheless, the vocational rehabilitation consultants in this case testify that claimant's employability is extremely limited, her access to the employment market is severely diminished and that her potential earning capacity has been reduced. Claimant's age and the fact that she is foreclosed from returning to her former employment as an over-the-road truck driver substantially increase her industrial disability. Even Page 10 though Dr. Hines described herniated discs at L3-4 and L4-5, the myelogram only showed bulging discs. There was no evidence that the bulging discs were herniated or were causing any nerve root impingement nor was there any evidence that they were a cause of claimant's back or leg pain. Furthermore, all of the other objective tests, the x-ray of the cervical spine, the EMG study of her upper extremities, the unenhanced/enhanced CT scan of the head, the myelogram of the cervical and thoracic spine, and the MRI (ex. 3, p. 55) did not demonstrate any physical or functional abnormalities. No surgery was recommended or performed for the bulging discs or for anything else. There is no impairment rating in evidence from Dr. Hill or Dr. Worrell. Dr. Hines determined that claimant had sustained a 23 percent "dysfunction" to the whole person and he attributed 15 percent of the 23 percent to sexual dysfunction because claimant has almost completely lost her ability to enjoy sex secondary to pain and dysfunction (ex. 3, pp. 1-4; ex. 12, pp. 22-40). Dr. Hines said claimant was probably restricted to relatively sedentary work with the opportunity to move from one position to another. In sales work she should avoid prolonged standing and in secretarial work she should avoid prolonged sitting (ex. 12, p. 42). Dr. Hines' 23 percent rating to the whole person did not include anything for the problems to claimant's knees (ex. 12, p. 61). Later Dr. Hines opined that claimant was totally disabled (ex. 3, pp. 44 & 45). Although Dr. Hill did not give an impairment rating he did state that because of the prolonged nature of the problems that he would have to say that there is permanency involved (ex. 11, p. 18). He stated that claimant was foreclosed from truck driving as well as other manual labor, heavy lifting occupations that she has performed in the past such as farming and being a nurse's aide because all of those areas involve lifting. He said she should not lift over 25 pounds on a repetitive basis, avoid long standing on hard surfaces, climbing, or performing work with repetitive back motions. Dr. Hill reaffirmed his letter of April 28, 1987, in which he stated: I do not feel that Ms. Tuberty is employable as a truck driver or for many other vocations. Other vocations would include areas which require standing or walking over 2 to 3 hours at a time, sitting for longer than 3 hours straight, lifting over 25 pounds on a routine or repetitive basis, or occupations requiring repetitive bending, reaching, stooping, or climbing. The duration of these limitations are specifically unknown, but assuredly longer than the next 6 months and possibly years. (exhibit 2, page 8) Thus, in so far as claimant is foreclosed from her Page 11 primary employment of truck driving, as well as her secondary employments of farming and nurse's aide work, claimant has sustained a substantial industrial disability. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Claimant was examined by David J. Boarini, a board certified neurosurgeon, on one occasion for defendants on February 5, 1987. He found that she had reached maximum medical recuperation, his examination was entirely normal, he refused to give her any impairment rating, he stated that he would not place any restrictions on the patient and he could find no reason that she could not return to work impliedly as an over-the-road truck driver (ex. A, deposition ex. 1). Dr. Boarini said claimant did not have any disc herniation (ex. A, p. 20). Claimant did not relate any complaints with regard to her low back to Dr. Boarini (ex. A, p. 21). However, Dr. Boarini said it was possible to be hit with the box in the right shoulder and to have low back complaints (ex. A, p. 22). The restrictions of Dr. Hill, the treating physician, may be overly strict and the absence of restrictions or precautions by Dr. Boarini may be overly optimistic. The best restriction probably lies somewhere in between the two opinions. The surveillance performed by defendants on claimant through private investigator Matthew I. Solon, demonstrated that claimant can put a 32-pound saddle on a horse (tr. p. 152), that she can ride two miles while the horse is walking (tr. p. 153), that she can ride one horse and lead another (tr. p. 154), and that she rode a horse at a walk for about two hours with a group of riders from Jefferson to Fort Madison (exs. D & E). Claimant rode three miles on the trail ride to Fort Madison (ex. C, p. 27). At the same time claimant testified that she mounted the horses from a bandstand or the bed of a pickup truck, that she could only ride a horse while the horse was walking, and that she could only ride occasionally for short distances. This surveillance evidence does not refute that fact that claimant should be restricted to light and sedentary work as stated by Dr. Hill and Dr. Hines that she should not lift more than 25 pounds occasionally or repetitively. There seems to be no question, however, that claimant is foreclosed from her former employments which required heavy lifting as well as prolonged sitting and standing based upon the testimony of Dr. Hill and Dr. Hines, both of whom were treating physician. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Several physical capacity examinations show that claimant must alternate standing/walking and sitting and is limited to lifting no more than 20 or 25 pounds (ex. K, p. 7; Ex. R, pp. 1, 3, 4, 14, 22, & 26-28). Page 12 Thus, it is determined that based upon the evidence presented that claimant is prohibited from returning to over-the-road truck driving, farming and nurse's aide work, which are her primary previous employments, and therefore, claimant has sustained a substantial industrial disability. Defendants did not demonstrate that any of claimant's prior neck strains, in particular, the one that occurred on May of 1985, had any effect on her current injury and disability. On the contrary, claimant introduced evidence through Dr. Hill, the treating physician for all injuries, that all prior neck strains had resolved at the time of the injury on June 25, 1985 (ex. 11, p. 17). Claimant, born March 2, 1943, was 42 years old at the time of the injury, 47 years old at the time of the hearing, and 48 years old at the time of this decision. Claimant's industrial disability is increased because it occurred at or near the peak of her earnings career. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision 1989). Claimant's high school education, nine months of nurse's training, a hog production course in which she received an A, as well as the completion of the bookkeeping and wordprocessing course demonstrates that claimant is capable of retraining from an intellectual point of view, even though she claimed to have difficulties with school types of work. Claimant's education and potential to be educated on subjects in which she is interested, would not appear to be a problem. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant was examined by numerous vocational rehabilitation consultants. Candace Kaelber saw claimant from April 8, 1986, through March 24, 1987 (ex. K, pp. 1-17). Kaelber testified at the hearing that employer offered claimant a job as a truck driver based on Dr. Boarini's report, but it was declined by claimant's attorney who said it would be direct disregard of her treating physicians instructions (ex. K, p. 35; tr. pp. 233-235). A vocational assessment was performed for defendants by Intracorp on January 8, 1990, which was prepared in part by Kent Jayne, M.A., C.R.C. (ex. L). His labor market access and earnings capacity analysis found that claimant has sustained a loss of 64 percent of the previously accessible jobs based upon Dr. Hill's restrictions, but based upon Dr. Boarini's restrictions she had no loss of access to the labor market. Jayne testified that prior to her injury her earnings Page 13 capacity was $282.85 per week based on accessible jobs prior to this injury and after the injury she still had an expected earnings capacity of $282.13 based upon the jobs still accessible based upon Dr. Hill's restrictions. He said that she had no loss of earnings capacity based upon Dr. Boarini's absence of restrictions (ex. L, pp. 4 & 5). Jayne testified at the hearing that claimant could do light or sedentary work. She earned 17 cents a mile with employer which amounts to $10.50 per hour on a 40-hour week, but claimant usually worked 70 to 80 hours per week and this reduces her hourly wage to approximately $5, $6 or $7 per hour (tr. pp. 244, 245 & 261). Jayne admitted that even though claimant's hourly loss might be little or nothing, nevertheless, he did not mean to indicate that with a 64 percent loss of access to the job market that she would not have trouble getting a job in her home community (tr. p. 263). Robert W. Jones, a vocational evaluator at the Mercy Occupational Evaluation Center, evaluated claimant on January 29, 1987 (ex. L, p. 5). His evaluation included the G.A.T.B. vocational aptitude test, the career assessment vocational interest test, and the Valpar component work sample which tests eye-hand-foot coordination. He testified that claimant had a bad attitude toward the tests and taking the tests and that she did not do well because she was not motivated to do so (ex. B, pp. 3-12). She did not do well on the career assessment inventory interest test because of a negative attitude (ex. B, p. 15). He would expect someone with a high school education, L.P.N. training and night courses at the community college to do much better (ex. B, p. 22). Jones testified, "I don't know whether I would use uncooperative. I think a better choice might be unenthusiastic, somewhat reluctant and resistant." (ex. B, p. 28). Mercy Hospital Occupational Evaluation Center, based on Dr. Boarini's absence of medical restrictions concluded that any effort she makes towards return to competitive, gainful employment will pretty much depend on her own interests and motivation (ex. J, vol, 1, p. 69). Roger Marquardt, a professional vocational rehabilitation consultant, personally interviewed claimant on October 12, 1987 (ex. 13, pp. 3-12). Marquardt testified, "When I saw her, it was my understanding she had not applied for full-time employment. She had not made efforts along those lines. She was, when I saw her, very involved and preoccupied almost with the symptoms she was having concerning her pain and also a lot of concern over her marital situation." (ex. 13, p. 17). Marquardt admitted that during the nine or ten hours he spent on this case, he was never asked to attempt to actually find a job for claimant (ex. 13, p. 19). Marquardt indicated that claimant could be placed after a work hardening program and rebuilding her self-esteem (ex. 17, pp. 2-23). He felt that she could return to her previous employment of driving a school bus (ex. 13, p. 27). He admitted, however, it would be difficult for claimant to get a job with her restrictions Page 14 and lack of transferable skills in her local economy (ex. 13, pp. 30 & 31), Marquardt explained, "It takes special effort, counseling, support, motivation and also tactfully working with a prospective employer to secure employment. Just to go out and get a job for someone that has restrictions is very difficult." (ex. 13, p. 33). In Marquardt's written report dated March 10, 1988, he stated that claimant is now physically limited to very light or sedentary activities. She cannot return to work as a tractor-trailer driver, a farmer or a nurse's aide. Any skills she obtained from past work are not transferable to similar occupations considering her physical restrictions as outlined by Dr. Hines and Dr. Hill. Following those restrictions, she can only perform nonskilled light or sedentary work. He said that conservatively she has lost at least 50 percent of her access to the employment market (ex. 13, dep. ex. 4, pp. 4 & 5). Marquardt estimated that claimant had sustained a 53 percent loss of earning capacity based upon his calculations of what she was earning before this injury and what he thought she could earn now (ex. 13, dep. ex. 4, pp. 4 & 5). Ethel E. Sherman prepared an evaluation on November 9, 1989, for the Division of Vocational Rehabilitation Services which contained several insights into claimant's desires and capability with respect to work and she concluded her report as follows, "For the first time in our work witih [sic] Vocational Rehabilitation we feel we must say that this lady is unemployable for the combination of the reasons indicated above." (ex. 7, p. 6; ex. I, p. 47). Ethel Sherman's opinion that claimant was unemployable was based on four handicaps (1) physical inability to sit or stand for prolonged periods of time; (2) emotional impairments which may be greater than her physical impairments; (3) her mental capability is limited by her verbal inabilities in areas which do not involve physical work; and (4) claimant's strong preference for outdoor work and dislike for indoor activities. (ex. 7, p. 6). Thus, a certain amount of claimant's unemployability in Sherman's opinion is based upon personal factors rather than this work injury. Sherman stated, "We think that at this time she would find it nearly impossible to even get a job in business or industry partly because of her physical limitations and partly because of basic attitudes that can be very aggressive." (ex. 7, p. 6). Claimant's motivation to return to work is in question because shortly after this injury, she married her second husband on July 14, 1985, and moved to Albert Lea, Minnesota, and continued to live there with him until she returned to Iowa in February of 1987 (tr. pp. 67 & 71). The second marriage was dissolved on June 20, 1988 (ex I, p. 25). Shortly after this injury, claimant's driver's license was suspended on account of speeding violations. Kaelber reported on April 8, 1986, that claimant had six Page 15 speeding tickets over the last year and lost her driver's license for 90 days (ex. I, p. 2). Claimant was notified by the Iowa Department of Transportation on March 21, 1986, that effective April 20, 1986, her privileges to operate and register motor vehicles was suspended until July 19, 1986, because she was a habitual violator (ex. Q, p. 51). Furthermore, claimant developed knee injuries and complaints in 1986 which resulted in the arthroscopic surgery of Dr. Sullivan on July 14, 1987 (ex. 4, pp. 1-3). Although claimant inquired about employment at various places, there is no evidence that she made a diligent search for remunerative employment other than to clean homes and baby-sit (tr. pp. 110 & 111). Claimant inquired about jobs but did not make out any applications (ex. C, p. 19). Claimant was denied twice for social security disability benefits but planned to apply again (ex. C, pp. 50 &51). Because of claimant's failure to attempt any employment in the competitive employment market it is difficult to discern the precise amount of claimant's industrial disability. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). An employee seeking workers' compensation would do well to make a diligent attempt to find employment. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981). Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Company, Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Employers are responsible for the reduction in earnings capacity caused by the injury, they are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Wherefore, based upon (1) the physical injury diagnosed by Dr. Hill as ligamentous strain and spasm which then developed into chronic inflammatory reaction which then caused chronic spasticity of the neck and low back; (2) the fact that claimant has a bulging disc at L3-4 and L4-5; (3) the fact that the cervical x-ray, EMG, CT scan of the head, and an MRI did not demonstrate any abnormality or objective evidence for claimant's complaints; (4)the fact that Dr. Hines has assessed a 8 percent dysfunction which he probably intended to mean was a 8 percent permanent physical impairment (after deducting the 15 percent sexual impairment); (5) the fact that Dr. Hines and Dr. Hill believe that claimant is restricted to no more than light or sedentary work; (6) that Dr. Hill recommended lifting no more than 25 pounds either occasionally or repetitively; (7) tempered by the fact that Dr. Boarini did not find any permanent impairment, did not give any impairment rating, imposed no restrictions and authorized claimant to return to work full time as an over-the-road trucker; (8) that the weight of the evidence is that claimant is foreclosed from returning to work as a full-time over-the-road truck driver; (9) that in her mid-forties claimant is at the peak of her Page 16 earnings career; (10) that claimant is retrainable and has the intellectual capacity for retraining; (11) that claimant has not made a serious attempt to return to work and has exhibited no serious, diligent effort to do so; (12) the fact that Marquardt thought she has lost 50 percent access to the labor market; (13) the fact that Jayne thought she has lost 64 percent access to the labor market; (14) the fact that Sherman thought claimant was unemployable which was partially due to the physical effects of this injury; and (15) based upon all of the evidence in this case; (16) and based upon 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 (17) based upon agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 45 percent industrial disability to the body as a whole and is entitled to 225 weeks of permanent partial disability benefits. medical benefits It is determined that claimant is entitled to $1,041.60 in medical mileage benefits for 2,160 miles for Dr. Hill and 2,800 miles for Dr. Hines. This is a total of 4,960 miles at 21 cents per mile and results in a total mileage allowance of $1,041.60. The mileage is calculated at 21 cents per mile even though the allowable rate for the period July 1, 1985 through June 30, 1986, was a mileage rate of 24 cents per mile because it is not possible to ascertain from the evidence how many miles were traveled during the one year with the higher allowance. Mileage cannot be allowed for the trips to see Dr. Sullivan for the reason that he treated claimant's knees and the knees were determined to be injuries that did not arise out of and in the course of employment with employer. Claimant may be entitled to the 900 miles for travel to the Jefferson County Hospital, but this determination cannot be made because the hospital treated both claimant's neck and back injuries and also claimant's knee injuries. (claimants ex. 1F, pp. 1 & 2). It cannot be determined what mileage is due to the injury to the right shoulder, neck and back. Defendants stipulated that if the provider of medical services and supplies would testify, that they would testify (1) that the fees charged were reasonable and (2) that the services were for reasonable and necessary medical treatment for the alleged work injury. However, defendants disputed whether the expenses were causally connected to the work injury. Therefore, a determination on the medical mileage to the Jefferson County Hospital and several other bills cannot Page 17 be made because of insufficient evidence to make a determination that the amounts claimed were caused by the right shoulder, neck and back injury which occurred on June 25, 1985. Claimant wants to collect $843.80 for charges at Easter Pharmacy (ex. 1B). However, claimant only submits a balance due bill with no itemization. Attached to defendants' posthearing brief is a breakdown of prescriptions by date, doctor, type of medication, and the reason for the medication; however, no amounts are given for the particular prescription. Claimant would be entitled to the prescriptions ordered by Dr. Worrell, Dr. Hines and Dr. Hill for the prescriptions which are related to the right shoulder, neck and back injury, but not those prescribed for weight loss, ulcers, diarrhea, reduction of elevated serum cholesterol, ulcerative colitis, duodenal ulcer, abdominal pain, antibiotics, and itching. Since it is not possible to determine the amount of prescription drugs, it can only be stated that defendants owe for those caused by this injury, but no order can be given because the amount cannot be determined from the evidence submitted. Defendants would owe for the charges of the Jefferson County Hospital caused by this injury to the right shoulder, neck and back, but since the hospital also treated the knees and the charges are not itemized by injury, it can only be said that defendants owe for the charges caused by this injury to the neck and back, but no amount can be ordered because it is impossible to determine the amount from the evidence submitted (ex. 1C). The Medical Arts Clinic charge of $236.88 is not itemized (ex. 1D) and the Ottumwa Neurological Associates charge in the amount of $95.20 indicates that his bill is for medical reports and letters rather than medical treatment (ex. 1E). Wherefore, even though claimant may be entitled to recover more, the evidence only supports a finding that defendants pay claimant $1,041.60 for 4,960 miles at the rate of 21 cents per mile to see Dr. Hines and Dr. Hill. costs From claimant's request for costs attached to the prehearing report in the total amount of $692.16, claimant is allowed $562.90 for the following costs: Claimant is entitled to $150 of the $250 charge by Dr. Hill for a deposition; transcript of Dr. Hill, $212; transcript of Dr. Hines, $65.55; transcript of Mr. Marquardt, $35.40; transcript of Mr. Jones, $40.30; transcript of Dr. Boarini, $21.85; transcript of Dr. Sullivan, $37.80. The $8.50 shown for a transcript of claimant's deposition and $28.76 for video transfer are trial preparation expenses which are not allowable from defendants as well as the $100 of Dr. Hill's deposition charge. conclusions of law Page 18 Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury to her right shoulder, neck, and lumbar spine on June 25, 1985, which arose out of and in the course of employment with employer. That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury to her left knee or her right knee which was caused by the incident which occurred on June 25, 1985. Iowa Code section 85.3(1); 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). That the injury of June 25, 1985, to claimant's right shoulder, cervical spine and lumbar spine was the cause of both temporary and 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 is entitled to 48.286 weeks of healing period benefits for the injury to her right shoulder, neck and back for the period from June 29, 1985 to June 3, 1986. Iowa Code section 85.34(1). That claimant sustained an industrial disability of 45 percent to the body as a whole and is entitled to 225 weeks permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant is entitled to $1,041.60 is medical mileage expenses for the trips to Dr. Hill and Dr. Hines. That claimant is entitled to $562.90 for the costs itemized above. order THEREFORE, IT IS ORDERED: That defendants pay to claimant forty-eight point two eight six (48.286) weeks of healing period benefits at the stipulated rate of one hundred ninety-three and 86/100 dollars ($193.86) per week for the period from June 29, 1985 to June 3, 1986, in the total amount of nine thousand three hundred sixty and 72/100 dollars ($9,360.72) commencing on June 29, 1985. That defendants pay to claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the rate of one hundred ninety-three and 86/100 dollars ($193.86) per week for an industrial disability of forty-five (45) percent to the body as a whole in the total amount of forty-three thousand six hundred eighteen and 50/100 dollars ($34,618.50) commencing on June 3, 1986. That defendants are entitled to a credit for one hundred seventy-five point seven one four (175.714) weeks of Page 19 workers' compensation benefits paid to claimant prior to hearing at the rate of one hundred ninety-three and 86/100 dollars ($193.86) per week in the total amount of thirty-four thousand six-three and 92/100 dollars ($43,063.92). That all of these benefits have accrued and are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant one thousand forty-one and 60/100 dollars ($1,041.60) in medical mileage expenses. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, as well as the additional five hundred sixty-two and 90/100 dollars ($562.90) in costs itemized above, are charged to defendants pursuant to Iowa Code section 86.40, 86.19(1) and rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1992. Page 20 ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jacques D. Schira Attorney at Law 500 First Interstate Bank Bldg. Des Moines, Iowa 50309 Mr. Ross H. Sidney Ms. Iris J. Post Attorneys at Law 2222 Grand Ave PO BOX 10434 Des Moines, Iowa 50306 Page 1 2903 2906 52906 2901 2902 2907 51100 51401 51402.20 51402.30 52209 51402.40 51802 51803 51804 1402.60 3701 Filed February 19, 1992 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : JEANETTE TUBERTY, : : Claimant, : : vs. : : File No. 798936 HAROLD DICKEY TRASNPORT, INC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY & : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2903 2906 The fact claimant received $2500 under an agreement for partial commutation prior to hearing, in order to pay several bills, was not a determination of claimant's rights or defendants' liability. Therefore, this is a proceeding in arbitration and not review-reopening pursuant to Iowa Code section 86.14 52906 Claimant's job search list was excluded from evidence because it was not timely served as required by paragraph seven of the hearing assignment order. 2901 2902 2906 It was not necessary for claimant to amend the original notice and petition at hearing to include other parts of the body because the knee(s) were raised by the discovery of both parties. Defendants were not misled or surprised and technical rules of pleading are not followed in agency practice. Several cites. 2907 Some of claimant's costs were allowed and some were disallowed basically relying on rule 343 IAC 4.33. 51100 51401 51402.20 51402.30 52209 It was determined that claimant sustained an injury arising out of and in the course of employment to her right shoulder, neck and lumbar spine. It was determined that the problems with her knee(s) did not arise out of or in the course of employment with employer. Nor was the knee(s) a cumulative injury. Claimant was five feet five inches tall and weighed 240 pounds. Page 2 51402.40 51802 Healing period found and awarded as justified by the most reasonable evidence for the type of injury sustained based on the medical evidence to support the period allowed. 51402.40 51803 51804 Claimant was not permanently and totally disabled. Claimant sustained an industrial disability of 45 percent to the body as a whole. There was little objective evidence of serious physical injury, but three out of four vocational rehabilitation consultants testified that claimant has lost 50 percent and 64 percent access to the labor market and one said she was unemployable but many of the reasons for her unemployability were not caused by this injury but were personal to claimant. A treating physician assessed a 23 percent dysfunction which was interpreted to be a permanent physical impairment rating, but the 15 percent for sexual dysfunction was subtracted, leaving on an 8 percent rating. Claimant, age 42, high school education and a little subsequent education, was foreclosed from returning to her former occupations of over-the-road truck driver, farmer and nurse's aide. She was retrainable and took a wordprocessing course, but otherwise demonstrated no motivation to work or retrain. 1402.60 Claimant was allowed some medical mileage, but not allowed other mileage because it could not be determined from the evidence submitted whether it was allowable. Likewise, some of the other medical expenses appeared as if they might be allowable, but claimant did not submit sufficient evidence in order to make a determination. In addition, the medical bills were not itemized, but were only "balance due" bills showing only a final figure and gave no clue as to causal connection. 3701 Surveillance was performed on two or three occasions. It disclosed that claimant could throw a 32-pound saddle on a horse, mount a horse, and ride the horse at a walk for a distance of two or three miles. The surveillance, however, did not refute the opinion of doctors that claimant was foreclosed from former occupations or that she should not be confined to light or sedentary work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL L. SWIFT, Claimant, vs. ALLIED CONSTRUCTION SERVICES, File No. 799010 INC., A P P E A L Employer, D E C I S I 0 N and MARYLAND CASUALTY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability and healing period benefits. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 14; and claimant's exhibit 15, the admissibility of which is discussed below. Both parties filed briefs on appeal. ISSUES The issues on appeal are whether the deputy erred in allowing into evidence the deposition of a witness; whether there is a causal connection between claimant's disability and his work injury, and the nature and extent of claimantOs disability. REVIEW OF ThE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant testified that he was injured at a construction site on May 6, 1985 when he tumbled down a flight of stairs while attempting to descend the stairs to the break room. Claimant, who had been a working foreman, said that he returned to work in a supervisory capacity only to June 4, 1985. Claimant reported that his physicians have told him it would be very threatening if he were to receive another trauma on account of his deep vein thrombosis. He also reported that he was told that drywall work especially would be dangerous as would all construction work. Claimant also testified that he had sustained a prior SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 2 right knee injury on Labor Day 1984 when he tripped at home and sprained the knee. He reported that he received treatment at the emergency room through his family doctor who referred him to James W. Dinsmore, M.D., who performed an arthroscopy in November 1984. Claimant indicated that he recovered quickly from that arthroscopy and was back to hanging drywall on the Monday following the Thursday surgery. In a letter dated October 29, 1985 Dr. Dinsmore reported: Michael Swift re-injured his right knee on 5/6/85 when he fell down a flight of stairs at work. Prior to this fall, he had undergone arthroscopic surgery on 11/2/84 at which time a partial medial meniscectomy was carried out. He had gotten along reasonably well following that surgery even though we knew that he had an old tear of the anterior cruciate ligament. Following the 5/6/85 fall, he was unable to return to work and was complaining of pain on the top and lateral side of the right knee .... .... On examining him on 5/24/85, I noticed that he had a markedly positive drawer sign. This was more significant now than it had been prior to his surgery in 1984 .... On 6/11/85, I arthroscoped the knee again. I did not find any tearing of the cartilage. The anterior cruciate ligament was completely torn. I followed this procedure with a Slocum pes anserina tendon transfer .... On 7/10/85 he phoned stating that he was running a temperature. He was having pain into the thigh and groin area. He was admitted to the Methodist Hospital immediately. During his admission, he was diagnosed to have a deep vein thrombosis and treated accordingly. ... He was finally discharged on 7/20/85 from the Methodist Hospital. During this time he was placed on anti-coagulation therapy and it was the intention to maintain him on this treatment. Before his discharge, his cylinder cast was removed and he was allowed to begin moving the knee .... .... Michael Swift will have a certain degree of permanent disability with his knee. This will not only SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 3 be injury to the knee but also will have to include his complication of deep vein thrombosis. I feel at this time that it is too early to estimate a permanent disability. (Joint Exhibit 8) In a letter dated March 27, 1986 Dr. Dinsmore indicated: would presently rate Michael's permanent partial disability at approximately 25 percent of the right lower extremity. This is based on his ligamentous instability and the effects of his complication of deep vein thrombosis.O Dr. Dinsmore testified in his deposition: Q. Okay. Did you examine the patient on May 24, 1985? A. I did. .... Q. Were those findings on examination similar to those on October 16, 1984? A. Well, they were similar but not the same. Q. And was that thrombosis -- in what leg, Doctor? A. It was in his operative leg. Q. And on a comparison of his stability and his condition in March of 1985 and that after the Slocum procedure and treatment of his injury in May, what difference did you -- would you say there is in the use of his knee? A. The main difference was that he wasn't able to function following the injury, which I feel aggravated his preexisting condition. Q. Would you be able to, with a reasonable degree of medical certainty, give us an opinion as to what extent his disability now would be related then to the injury or aggravation? A. I feel it is approximately ten per cent. .... Q. So as to the deep thrombosis, that is not included with the ten per cent disability that you would relate to the aggravation of the May injury? A. It's a type of disability that I really can't --I can't really put my finger on. I just can't --I think Dr. Waltke could better do that. (Jt. Ex. 13) SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 4 Claimant saw Ann K. Agarwal, M.D., in April 1986 per the defendant insurer's direction. Dr. Agarwal reported in a letter dated July 7, 1986: Following surgery he also had an episode of deep vein thrombosis of the right knee. .... Although it is possible that the May 1985 injury aggravates the knee symptoms, however, patient's pathology of instability of the knee was a preexisting problem and subsequent surgery was not related to this injury of May 1985, instead it was done to correct the instability which was preexistent. I do not think any permanent disability was added to an all ready unstable knee. (Jt. Ex. 11) Claimant was evaluated by Eugene A. Waltke, M.D., a vascular surgeon. Dr. Waltke, in discussing an evaluation of claimant in the non-invasive vascular lab, reported in a letter dated September 11, 1986: "He says he is asymptomatic at this time. Because of his complete lack of symptoms at this time and the present but rather remote possibility of future difficulties, I would give him a 10% disability rate at this time.O The file in this matter shows that the Hearing Assignment Order dated July 11, 1986 provided that a list of all witnesses to be called at the hearing and a list of all proposed exhibits was to be served on opposing parties no later than 30 days after the order. At the hearing on October 7, 1986 the claimant filed a Description of Disputes which referred to a deposition of Dr. Waltke (Claimant's Ex. 15). Also on the day of the hearing, defendants filed Defendants' Objections to Claimant's Exhibits which indicated that Dr. Waltke's name first appeared on a witness list served on defendants on August 18, 1986; that notice of taking the deposition of Dr. Waltke was served on September 26, 1986; and that the deposition was taken on September 30, 1986. The file also showed that the arbitration decision was dated November 3, 1986. Notice of appeal by the defendants was filed on November 20, 1986. A letter dated November 25, 1986 and filed December 1, 1986 from the defendants to the certified shorthand reporter requested that a transcript of the hearing be prepared. The transcript was filed on January 23, 1987. A Certificate of Filing Transcript indicating that the transcript was placed in the mail on January 21, 1987 was filed on January 23, 1987. Defendants filed their appeal brief on February 19, 1987 which indicated that it had been served on February 12, 1987. Claimant filed an appeal brief on March 3, 1987 which indicated that it had been served on March 2, 1987. In a letter dated March 6, 1977 and filed March 10, 1987 the defendants waived the right to file a reply brief. APPLICABLE LAW SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 5 The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The first issue to be decided is whether the deputy erred in allowing the deposition of Dr. Waltke (Cl. Ex. 15) into evidence. The July 11, 1987 hearing assignment order specified that the witness list and exhibits to be used at the hearing should be served upon opposing parties within 30 days. Dr. Waltke's name was not on a timely witness list nor was his deposition timely served. A deputy industrial commissioner does not have the power or authority to change another deputy's order. If a party does not agree with a deputy's order they have an opportunity to appeal that decision. The deputy erred in allowing the deposition into evidence and it will not be considered in making this decision. The second issue to be resolved is whether there is a causal connection between claimant's disability and his work injury. Prior to claimantOs fall he had been working full time at construction work. After his fail he was not able to do work he had done before and the reason was that his knee had been injured and that he had developed thrombosis as a result of a treating physician treatment of the knee. Dr. Dinsmore who was for both of claimant's knee injuries clearly indicated that claimant's fall aggravated a preexisting condition and that claimant's condition was different after the fall at work. Dr. Dinsmore's opinions are given more weight than Dr. Agarwal who only saw claimant one time after both injuries to the knee had occurred. Claimant's physical condition and his work activities changed substantially after his May 1965 injury. Claimant has proved by the greater weight of evidence that his injury of May 6, 1985 is the cause of his disability. The third issue to be resolved is the nature and extent of claimant's disability. Dr. Dinsmore's testimony clearly indicates that it was his opinion that claimant suffered ten percent of his present "disability" from the May 1985 aggravation of the lower right extremity. The medical evidence indicates agreement that the thrombosis related to the surgical procedure and the immobilization following the surgical procedure for claimant's knee injury. The extent of the impairment related to claimant's deep vein thrombosis remains to be decided. Dr. Dinsmore deferred to Dr. Waltke to determine the "disability" resulting from the thrombosis. Dr. Waltke stated that claimant was asymptomatic but he would give claimant a ten percent "disability" rate because of possible future difficulties. There is insufficient medical evidence to determine what claimant's current impairment is as it relates to the thrombosis. From the evidence available it is impossible to tell if the thrombosis increases the current rating of impairment of the lower right extremity and to tell if the thrombosis impairs any other part of claimant's body. Furthermore, the undersigned cannot base an opinion on mere speculation of what may or may not occur in the future but must look at claimant's present condition. It is more important to consider claimant's present condition than possible future difficulties. Claimant has failed to prove that he has SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 6 any disability because of the thrombosis. However, claimant has proved by the greater weight of evidence that his work injury was the cause of ten percent disability of the lower right extremity. Claimant argues in his appeal brief that defendantsO appeal should be dismissed for late filing of the transcript and appellantsO brief. The claimant notes that the transcript was filed 61 days after the notice of appeal and that appellants' brief was filed 22 days after the transcript was filed. Claimant argues that the Division of Industrial Services' rules provide that the time periods for these filings are 30 days and 20 days respectively. Claimant correctly notes that Division of Industrial Services Rule 343-4.30 provides that a transcript is to be filed within 30 days after the notice of appeal is flied. In this case the appeal was filed November 20, 1986, the request for the transcript was filed on December 1, 1986 and the transcript was filed on January 23, 1987. There is no indication why the transcript was not filed until January 23, 1987 but defendants clearly requested the transcript within thirty days of the filing of the notice of appeal. The violation of rule 4.30 does not warrant a dismissal of the appeal in this case. While claimant correctly noted the provisions of rule 4.30, he did not correctly note and apply Division of Industrial Services Subrule 343-4.28(l). That subrule provides: Appellant shall serve its brief within fifty days after the date on which notice of appeal was filed, or within twenty days after filing of the hearing transcript, whichever date is later. Appellee shall serve its brief within twenty days after service of the brief of appellant. If appellant serves a reply brief, it shall be done within ten days after service of appellees brief. (Emphasis added) In this case the transcript was filed on January 23, 1987 and the brief was served on February 12, 1987. The brief was served within 20 days of the filing of the transcript and the requirements of subrule 4.28(l) have been met. Claimant's arguments that the appeal should be a dismissed are not persuasive. FINDINGS OF FACT 1. Claimant injured his right knee at home in September 1984. 2. Claimant underwent an arthroscopy in November 1984 with debridement of a torn anterior cruciate ligament and of a torn medial meniscus. Dr. Dinsmore advised claimant in March 1985 that claimant would probably need a Slocum procedure some day. 3. A Slocum procedure was not necessary in March 1985 as claimant was able to function at work and otherwise. 4. Claimant fell down a flight of stairs in the course of SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 7 his employment on May 6, 1985. 5. Objective findings regarding claimant's right knee were not significantly different from those prior to the May 6, 1985 injury, but claimant was unable to work subsequent to the injury. 6. Claimant's right knee condition was aggravated by the injury. 7. Claimant underwent a second arthroscopic examination and a Slocum pes anserina transfer. 8. Claimant subsequently developed deep vein thrombosis as a result of the procedure and resulting immobilization. 9. It is not possible to determine if claimant's deep vein thrombosis has impaired his right lower extremity or any other part of his body. 10. Claimant had a preexisting impairment of his right lower extremity on account of his September 1984 injury. 11. Claimant has a 10 percent permanent partial impairment of his right lower extremity as a result of his knee injury alone without accounting for his deep vein thrombosis. 12. Claimant has no impairment of his right lower extremity as a result of his deep vein thrombosis. SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 8 13. Claimant's healing period extended from June 7, 1985 to September 8, 1985. CONCLUSIONS OF LAW Claimant has established that his injury of May 6, 1985 is the cause of the disability to his right lower extremity on which he now bases his claim. Claimant is entitled to permanent partial disability resulting from his injury of May 6, 1985 of ten percent of the right lower extremity. Claimant is entitled to healing period benefits from June 7, 1985 to September 8, 1985. Defendants are entitled to a credit for benefits previously paid with claimant entitled to payment of those weekly benefit amounts he has been underpaid during those weeks in which he received payments at the inappropriate rate. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants pay claimant permanent partial disability benefits for twenty-two (22) weeks at the rate of three hundred forty-four and 19/100 dollars ($344.19) per week with those payments to commence on September 9, 1985. That defendants pay claimant healing period benefits from June 7, 1985 to September 8, 1985 at the weekly rate of three hundred forty-tour and 19/100 dollars ($344.19). That defendants receive credit for benefits already paid claimant. That defendants pay claimant the amounts claimant has been underpaid during those weeks he received benefits at the inappropriate rate. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to Iowa Code section 85.30. That defendants pay costs including the costs of the transcription of the hearing proceeding. That defendants file claim activity reports as required by Division of industrial Services Rule 343-3.1(2). Signed and filed this 24th day of June, 1988. SWIFT V. ALLIED CONSTRUCTION SERVICES, INC. Page 9 DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Richard D. Crowl Attorney at Law 201 First National Bank Bldg. P.O. Box 457 Council Bluffs, Iowa 51502 Mr. James E. Thorn Attorney at Law Fifth Floor Park Bldg. P.O. Box 398 Council Bluffs, Iowa 51502-0398 1108.50; 1803; 1803.1 2903; 2906 Filed June 24, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL L. SWIFT, Claimant, vs. ALLIED CONSTRUCTION SERVICES, File No. 799010 INC., A P P E A L Employer, D E C I S I 0 N and MARYLAND CASUALTY COMPANY, Insurance Carrier, Defendants. 1108.50 Claimant had had knee surgery prior to his work injury which also hurt his knee. Claimant had been working full time at construction work prior to his work injury. The work injury resulted in knee surgery to the same knee. The treating physician opined that claimant's work injury aggravated the preexisting condition and claimant's condition was different after the fall. Thrombosis developed following treatment of the knee injury. The disability from the knee injury was causally connected to the work injury. 1603; 1803.1 Claimant suffered permanent partial disability to his lower right extremity (knee) because of the work injury. There was insufficient medical evidence to determine claimant's current impairment as it relates to the thrombosis. Claimant's disability was determined on claimant's present condition not what may or may not occur in the future regarding the thrombosis. It was also impossible to tell from the evidence if the thrombosis impairs any part of claimant's body other than the lower right extremity. 2903 A brief served within 20 days of the filing of the transcript was timely and the requirements of subrule 4.28(l) were met. 2906 A deposition of a witness which was not timely served and whose name was not on a timely witness list was not allowed into evidence. The deposition which was excluded contained the opinion that the thrombosis produced permanent partial impairment in both lower extremities. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KURT FENCHEL, : : Claimant, : : vs. : : File No. 799117 RICK D. MILLER, d/b/a MILLER : CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Kurt Fenchel, claimant, against Rick D. Miller, d/b/a Miller Construction, employer and United Fire and Casualty Company, insurance carrier, defendants for benefits as the result of an injury which occurred on July 3, 1985. A hearing was held at Cedar Rapids, Iowa, on August 17, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Kurt Fenchel, claimant; Patrick Rhines, claimant's friend; Bruce Fenchel, D.D.S., claimant's uncle; Douglas S. Kennedy, claimant's friend; Jeffrey K. Schuchmann, claimant's friend; Phyllis Fenchel, claimant's mother; Kathy M. McNeal, claimant's sister; joint exhibits 1 through 7; claimant's exhibits 1 through 3 and defendants' exhibit A. The deputy ordered a transcript of the hearing. Both attorneys submitted outstanding briefs. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on July 3, 1985, which arose out of and in the course of employment with employer. That the injury was the cause of temporary and permanent disability. That claimant is entitled to temporary disability benefits from July 3, 1985 to April 30, 1986; that these benefits have been paid to claimant; and that temporary Page 2 disability benefits are no longer a disputed matter in this case at this time. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is May 1, 1986. That the rate of compensation, in the event of an award of benefits, is $213.12 per week. That claimant's entitlement to medical benefits has all been or will be paid by defendants. That defendants make no claim for credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants are entitled to a credit for 50 weeks of permanent partial disability benefits paid to claimant prior to hearing at the rate of $213.12 per week in the total amount of $10,656. That there are no bifurcated claims. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled. This issue includes a determination of whether claimant is entitled to permanent partial disability benefits for scheduled member disability under Iowa Code section 85.34(2)"s" or whether claimant is entitled to industrial disability for an injury to the body as a whole. This issue includes the determination of whether claimant is an odd-lot employee. Whether claimant is entitled to vocational rehabilitation benefits pursuant to Iowa Code section 85.70. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13. Whether claimant is entitled to certain costs. findings of fact type of injury It is determined that claimant has sustained an industrial disability to the body as a whole. Page 3 Claimant was severely injured in a very traumatic accident when he fell approximately 18 feet from a scaffolding to the ground below and suffered a compound comminuted fracture of the proximal shaft of the left femur, an irregular fracture across the mid-portion of the left patella, and a fracture of the surgical neck of the left humerus with proximal and lateral displacement with some small comminuted fracture fragments at the fracture site. A significant amount of orthopedic hardware was required to repair claimant's fractures to his left leg and left arm (ex. 1, pp. 22, 23, 56 & 57). The physical or anatomical location of the fracture sites are in scheduled members, to wit, the left arm and left leg; however, the disability extends beyond the scheduled member at the left shoulder and constitutes an injury to the body as a whole. Some frequently cited agency precedents to determine this issue are as follows: The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Daily, 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). In Soukup, an injury to the foot was determined to be a scheduled member injury to be compensated according to the schedule even though claimant might in fact be permanently and totally disabled. In Daily, a fracture of the surgical neck of the femur which caused a tilting of the pelvis and a compensatory curvature of the spine caused actual physical injury beyond Page 4 and outside of the scheduled area and claimant was entitled to body as a whole benefits. Claimant was determined to be permanently and totally disabled from what originally began as a scheduled member injury. In Barton, an injury to the foot which caused a circulatory ailment was determined to be an injury to the body as a whole, and claimant was entitled to permanent and total disability benefits. In Kellogg, the supreme court reversed a deputy because they searched the record and could not find evidence that the fracture of the femur caused a permanent tilting of the pelvis that the deputy relied upon in his finding of facts. There was however, other evidence that the injury extended beyond the scheduled member, and the district court used some of this evidence to affirm the deputy, but the supreme court reversed the district court because these findings were not based upon findings of fact made by the deputy who is the statutory finder of facts. In Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986), the supreme court broadened the opportunity for hip and shoulder injuries to be determined to be injuries to the body as a whole. In this case, a fractured femur just below the hip joint resulted in a total hip replacement. The supreme court (1) looked with apparent approval upon a certain citation from Larson; (2) noted that most other jurisdictions had resolved hip and shoulder injuries as whole body injuries and cited a long list of cases; (3) commented that the worker compensation statutes should be interpreted to benefits workers and their dependents; and (4) stated that deference should be given to the interpretation of statutes which are made by the responsible administrative agency. The cite from Larson is as follows at page 839 of the Lauhoff decision: [t]he great majority of modern decisions agree one was so high and so close to the hip, I feel sharp, burning, stabbing sensations, pain in those areas." (transcript pages 60 & 61). Claimant said he could not return to work for this employer when he was released by his treating orthopedic surgeon, "Because I experienced a great amount of pain and stiffness and soreness in my leg and shoulder." (tr. p. 95). When defense counsel asked claimant what kind of problems he experienced, claimant replied, "General fatigue, pain, stiffness, soreness, frequently have to rest. It's much more difficult now for me to do the things that I used to do." (tr. pp. 134 & 135). This deputy interpreted claimant's complaints of stiffness and soreness to be localized in his left shoulder and left hip and leg. Claimant testified in his deposition as follows: Q. And specifically what parts of your body are stiff? A. The areas that that were injured. Q. Well, why don't you indicate for me, you know, specifically where you have the problem with soreness and stiffness? A. In my shoulder, in my hip, and in my left leg. (exhibit 7, p. 40). Claimant testified that he is unable to raise his left arm above his shoulder or head (tr. p. 62). The evidence in this case which causes the injury to be determined to be an injury to the body as a whole is the loss of range of motion in the left shoulder. In this respect, this case is quite similar to Fullerton v. Caterpillar Tractor Co., IV Iowa Industrial Commissioner Report 134, 135 (Appeal Decision 1984) except that Fullerton's problem was in his right shoulder. Fullerton fractured his right ulna with extensive muscle damage when an overhead engine fell on his right arm and caused extensive muscle damage. In that case, Fullerton's treating physician orthopedic physician stated that claimant's most serious limitation of motion was in the shoulder. This physician, John Sinning, M.D., stated, "Mr. Fullerton has a problem of shoulder rotation going in 30 degrees compared to 80 or 90 on the other side. External rotation 20 degrees compared to 60 degrees. Overhead elevation limited by 10 degrees." Id. This loss of range of motion constituted 6 percent of Dr. Sinning's final impairment rating of 35 percent of the right upper extremity. Claimant's Page 6 consultant, Jerome G. Bashara, M.D., assessed a total permanency rating of 35 percent of the right upper extremity involving impairment to the elbow, forearm, and shoulder which converts to a 21 percent permanent partial physical impairment of the body as a whole. Id. Industrial Commissioner Robert C. Landess found: ...the record indicates that claimant's injury was determined by both Dr. Sinning and Dr. Bashara to involve functional impairment of the right shoulder. Claimant was paid compensation benefits for the injury including his shoulder based on a 35 percent functional impairment of his right extremity as a scheduled member. A disability to the shoulder is a disability to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). Fullerton v. Caterpillar Tractor Co., IV Iowa Industrial Commissioner Report, 135 (Appeal Decision 1984) In this case, William John Robb, M.D., an orthopedic surgeon, examined claimant for defendants and reported on July 3, 1986. Some quotes from Dr. Robb's report are as follows: Kurt Fenchel was examined in my office on July 1, 1986, in regard to residual complaints referable to his left shoulder, left hip and left knee for injuries incurred from a fall from a scaffolding on the 3rd of July, 1985. *** Presently he complains of soreness in the left shoulder if he turns over and sleeps on it. There is stiffness in the morning, but after he exercises much of this subsides. He does not feel that he has a range of motion or strength in the shoulder that he had previously. He does not feel that there is any appreciable change in the symptomatology nor range of motion since December of 1985. *** On examination of the left shoulder, there is passive abduction to 160o, flexion to 160o, extension 40o, external rotation 45o, internal rotation 80o. Circumferential measurement of muscles of the left arm, biceps 12 1/2 right, 12 inches left. Forearm 10 1/2 inches right, 10 1/4 inches left. (exhibit 1, pages 119 and 120) Michael Twomey, a licensed physical therapist who treated and evaluated claimant, testified, "...normal flexion is 180 degrees. Normal abduction 180 degrees. External rotation should be 90 degrees, and internal Page 7 rotation, 80 to 90 degrees." (ex. 4, p. 11). When Twomey first saw claimant on July 22, 1985, claimant's left shoulder measured 90 degrees of flexion, 70 degrees of internal rotation, 2 to 3 degrees of external rotation and Twomey did not measure abduction so as to not disturb the fracture (ex. 4, p. 6). The therapist stated claimant showed improvement on September 3, 1985; September 26, 1985; October 1, 1985 and October 29, 1985; but he was still showing a loss of range of motion (ex. 4, pp. 8-14). Twomey testified that when he measured claimant on the Cybex machine on February 6, 1986, that claimant had an overall strength deficit in his left shoulder of 50 to 55 percent of normal (ex. 4, p. 23). A second Cybex test was performed on February 21, 1986 and claimant's shoulder strength was surprisingly low (ex. 4, p. 24). Twomey testified that claimant's impairment was permanent (ex. 4, pp. 25-28). Hugh P. MacMenamin, M.D., claimant's treating orthopedic surgeon, testified that claimant still had weakness with external shoulder rotation on January 14, 1986 (ex. 3, p. 28). The doctor said that the fracture could produce some scaring and the fact that it was so close to the joint itself could produce stiffness even though the fracture did not go into the articular surface or the joint surface (ex. 3, p. 58). Nevertheless, he said it is in such proximity to the joint itself that it has potential to lead to some stiffness about the shoulder joint. The doctor testified that claimant did in fact complain about stiffness on the last two or three examinations. Eventually, the doctor testified that he was sure there was some scar formation from the injury and even some from the surgery. At the time of this doctor's last examination on February 4, 1986, claimant could abduct 160 degrees with 180 degrees being normal and forward flex 160 degrees with 180 degrees being normal (ex. 3, p. 59). Thus, it has been established that claimant sustained a loss of range of motion in his left shoulder based upon the reports of two orthopedic surgeons and one licensed physical therapist. The latter having performed two Cybex machine examinations. Dr. MacMenamin said, "The shoulder injury represents 20% permanent physical impairment and loss of physical function to the whole arm." (ex. 1, p. 95). This case then is analogous to the Fullerton case where Commissioner Landess stated, "A disability to the shoulder is a disability to the body as a whole...As claimant has an impairment to the body as a whole, an industrial disability has been sustained." (Fullerton, page 135). Therefore, claimant has established that there is objective evidence of injury beyond the scheduled member. Roach v. Hubinger Co., file 500813, filed March 29, 1987; Wagner v. Grow Mart, Inc., file 714982, filed March 26, 1987. Therefore, it is determined here that since claimant has sustained a loss of range of motion in his left shoulder, has stiffness in his left shoulder joint, and received an impairment rating for the left shoulder, then this claimant too, has sustained an injury to the body as a Page 8 whole and is entitled to industrial disability. causal connection-entitlement-permanent disability It is determined that the injury is the cause of permanent disability, as stipulated to by the parties, and that claimant has sustained a 28 percent industrial disability to the body as a whole. Dr. MacMenamin, the treating orthopedic physician, determined that claimant sustained a 40 percent permanent physical impairment and loss of physical function to the lower left extremity and a 20 percent permanent physical impairment and loss of physical function to the whole arm (ex. 1, p. 95). He said that the 40 percent rating of the lower extremity converts to 16 percent of the whole person and the 20 percent of the upper extremity converts to 12 percent of the whole person. His final conclusion is, "This amounts to 28% total impairment of both extremities to the whole person." (ex. 1, p. 96). When the Guides to the Evaluation of Permanent Impairment, third edition, published by the American Medical Association combine 16 percent and 12 percent at page 246, the result in 26 percent. However, Dr. MacMenamin stated he used the Orthopedic Surgeon's Guide and this decision will not attempt to improve upon the 28 percent permanent partial impairment rating to the whole body arrived at by Dr. MacMenamin (ex. 1, pp. 95-97). On July 21, 1986, Dr. MacMenamin stated, "Mr. Fenchel will be able to walk and stand at work." (ex. 1, p. 97). He did not impose any permanent restrictions on claimant. The following dialogue transpired between defendants' counsel and Dr. MacMenamin: Q. Okay. Dr. MacMenamin, as of the time that you released Mr. Fenchel to return to work, I presume that although you expected further improvement from time to time, he had improved at least to the point where he was able to go back to his work as a carpenter at that time? A. Yes, I think I would have expected him to be able to return to work as a carpenter. Perhaps climbing ladders or crawling into small spaces may have been difficult, certainly at first for him. Q. And did you impose any restrictions whatsoever on his activities in connection with releasing him to return to work as a carpenter? A. Full capacity we allowed him. (exhibit 3, page 65) Employer did not offer claimant a job as a carpenter after he was released to return to work and claimant did not apply with employer for a job as a carpenter after he was released to return to work. Claimant testified, "I resigned from Miller Construction the day I was injured." (tr. p. 148). Page 9 Although several of claimant's relatives and friends testified that he was a changed person after the injury and seemed to be demoralized and depressed, no allowance is made in this decision for any psychological, emotional or mental condition because none of this testimony is corroborated by any professional medical evidence. It is determined that claimant is not an odd-lot employee. A worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well known branch of the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Id.; Lee v. Minneapolis Street Railway Co., 230 Minn 315, 320 41 N.W.2d 433, 436 (1950). There is no objective evidence that claimant is unable to perform any kind of work. Dr. MacMenamin, his treating orthopedic surgeon, released him to return to carpentry and placed no other restrictions upon him. Claimant's inability to work is based upon his own subjective individual interpretation of his physical condition and is not supported by any medical evidence of any kind. Furthermore, in order to be an odd-lot employee the disabled worker must make a bone fide search to find employment in the area of residence. In this case, it was demonstrated that claimant only searched for employment in order to draw unemployment compensation benefits. He only submitted the name of three prospective employers on interrogatories claiming that he lost his records on his other attempts. Claimant testified, "Well, I've read the job sections in the paper. I've talked to friends. I'm registered with the Job Service office right now in Manchester. I've done about as much that I can do." (tr. p. 212). Linda Sanford, an Iowa State Division of Rehabilitation Education and Services employee, was extremely critical of claimant's sincerity about obtaining employment (ex. 5). Sanford could be quoted in some very critical comments, but suffice to say that it is determined that claimant has not made a bona fide search to find employment in the area of his residence. Guyton, 373 N.W.2d 101 (Iowa 1985); Emshoff v. Petroleum Transportation Services, Inc., file 753723 (Appeal Decision March 31, 1987); Hingtgen v. Goodmann, file 737771 (Appeal Decision September 30, 1988); Collins v. Friendship Village, Inc., file 679258 (Appeal Decision October 31, 1988). Based on claimant's young age of being in the mid-30's, his high school and college education, his past employment record, claimant's situation is in sharp contrast with Guyton who was considered to be amoung the hard-core unemployed. Claimant, born September 17, 1953, was 32 years old at the time of the injury and 35 years old at the time of the hearing. Most of claimant's past employments have been carpentry related. Claimant said he is foreclosed from carpentry work; however, his treating physician said that he Page 10 could do it. Furthermore, claimant's inability to be a carpenter, even if it was true, which it was not proven to be, would not make claimant an odd-lot employee as contended by his counsel. There is no indication by Dr. Robb of any permanent restrictions or that claimant could not return to work as a carpenter. Dr. Robb estimated that claimant would suffer a 10 percent permanent impairment of function of the left upper extremity and a 10 percent permanent impairment of function of the left lower extremity (ex. 1, p. 121). Ten percent of the left upper extremity converts to 6 percent of the body as a whole and 10 percent of the left lower extremity converts to 4 percent of the body as a whole. Guides to the Evaluation of Permanent Impairment, third edition, table 3 on page 20 and table 43 on page 65). Six percent and 4 percent combine to 10 percent of the body as a whole on the combined values chart at page 246. Dr. Robb did not state whether he used the AMA Guides, The Orthopedic Surgeon's Guides, some other guides or no guides at all. The fact that Dr. MacMenamin expected claimant to improve after the doctor made his rating, does not permit defendants to validly contend, argue, speculate, and conjecture that Dr. Robb's lower later rating reflects this anticipated improvement. It is doubtful that claimant could have improved this much in the short two and one-half month period in between the two ratings by the simple application of common sense (ex. 3, pp. 69 & 70). Furthermore, an evaluator's rating and method of rating is so peculiar to the individualized practices and techniques of the rater that if defendants wanted to prove that claimant's rating was less, they should have requested that he be evaluated again by Dr. MacMenamin at later date. Claimant offered to be evaluated again, however, defendants did not request a subsequent evaluation by Dr. MacMenamin. The rating of Dr. MacMenamin as a treating physician of claimant for approximately one year, who was responsible for the success or failure of his treatment, is considered to be superior to the rating of Dr. Robb, who only saw claimant briefly on one occasion for the purposes of giving a rating for litigation purposes only. Dr. MacMenamin's rating is considered to be the most reliable rating. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). With respect to education claimant is both a high school graduate and a college graduate, receiving an art degree from the University of Northern Iowa, but he has never been able to find employment in the art field (tr. pp. 65 & 66). Employer did not offer claimant any vocational rehabilitation and claimant has not seriously sought out any vocational rehabilitation on his own volition. Claimant contended that Sanford was supposed to contact him after their meeting on September 17, 1987. Sanford contended that claimant was supposed to make an application if he wished vocational rehabilitation. Claimant did not seek rehabilitation services again for approximately one year until just shortly prior to the hearing and was still unemployed at the time of the hearing. Page 11 An employee making a claim for industrial disability will benefit by showing some attempt to find work. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Company, Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Furthermore, since claimant has not seriously sought any employment or vocational rehabilitation, his potential in the labor market has not been tested and this makes it more difficult to ascertain how much industrial disability claimant has actually sustained. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Employers are responsible for the reduction in earning capacity caused by an injury. They are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Wherefore (1) based on the foregoing considerations; (2) and all of the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985) and Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); and (3) applying agency expertise, [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 28 percent industrial disability to the body as a whole and is entitled to 140 weeks of workers' compensation permanent partial disability benefits. vocational rehabilitation benefits-Iowa code section 85.70 Claimant did not establish his entitlement to vocational rehabilitation benefits. The only requirement in the workers' compensation law for an employer to provide vocational rehabilitation benefits to an injured employee is found in Iowa Code section 85.70. This section requires an employer to pay an employee $20 per week while an employee actively participates in a vocational rehabilitation program recognized by the State Board of Vocational Education for a maximum period of 26 weeks. There is no evidence that claimant has ever presented employer with an application to attend such a program. Employers are not otherwise obligated to provide vocational rehabilitation to injured employees even though it has been common practice for the industrial commissioner to consider the willingness of both the employer and employee to engage in rehabilitation programs designed to return the employee to active employment as a factor in the determination of overall industrial disability. In this case, claimant has not established a necessity for vocational rehabilitation because Dr. MacMenamin stated that claimant could return to work in his old occupation as a carpenter at full capacity. Page 12 Furthermore, claimant made no follow-up for approximately one year on his one encounter with a vocational rehabilitation person from the State of Iowa when the opportunity for vocational rehabilitation was possible. Moreover, claimant has not presented any program he wants to pursue recognized by the State Board of Vocational Rehabilitation. Wherefore, it is determined that claimant is not entitled to an order for vocational rehabilitation benefits. penalty benefits-iowa code section 86.13 First, it is determined that when claimant was injured on July 3, 1985, and that the date of the first payment of workers' compensation benefits is made on July 25, 1985, it is not per se a delay in commencement of benefits without reasonable or probable cause which would justify the award of penalty benefits under Iowa Code section 86.13 unnumbered paragraph 4. At the same time, employers and insurance carriers are reminded that workers' compensation benefits are to begin on the eleventh day after the injury and continue without interruption each week thereafter. Iowa Code section 85.30. Although, defendants' first payment in this case was not as prompt as it should have been, since it was made on the twenty-second day after the injury, nevertheless, claimant did not prove that the delay was unreasonable or without probable cause. Second, defendants did violate unnumbered paragraph two of Iowa Code section 86.13 which states, "If commenced, the payments shall be terminated only when the employee has returned to work, or upon thirty days' notice stating the reason for the termination and advising the employee of the right to file a claim with the industrial commissioner." Claimant testified that he was not notified of the termination of benefits. There is no evidence on the part of defendants that a notice was made to claimant that his benefits would be terminated as is required by the second paragraph of section 86.13. Prior to section 86.13, the Supreme Court of Iowa held that workers' compensation benefits are a property right that cannot be taken away without due process of law. The court said that workers' compensation benefits are protected by the fourteenth amendment of the Constitution of the United States of America. The court defined the notice requirements, most of which are now expressed in Iowa Code section 86.13. Auxier v. Woodward State Hospital School, 266 N.W.2d 139, 142, 143 (Iowa 1978). The proper penalty for a violation of paragraph two has been an open question. The case of Sparks v. Herberger Construction, IV Iowa Industrial Commissioner Report 343 (1983) held that claimant's benefits should be continued until the mandates of Iowa Code section 86.13 have been complied with. In, Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 13-7, it states, "Failure to provide the `Auxier Notice' usually results in an additional thirty days of benefits in a contested case Page 13 proceeding before the industrial commissioner." In Himshoot v. Montezuma Mfg, file numbers 738235 & 672778, filed June 13, 1986, this deputy decided that claimant was entitled to only 30 days additional temporary disability benefits. On review, the district court determined that claimant was entitled to temporary disability benefits until she filed her petition for review-reopening. On review, the court of appeals, in an unpublished decision, pointed out that the supreme court did not consider for what additional duration of time benefits should be awarded when the Auxier notice is not provided. The court of appeals found that petitioner was entitled to notice prior to the termination of benefits, that due process required that claimant be informed of the right to submit evidence to dispute the termination and the right to petition for review-reopening. The court of appeals then determined that claimant was no longer prejudiced by lack of notice at the time she filed her petition for review-reopening and stated that the additional healing period benefits should run until that date. Himshoot v. Montezuma Mfg, (Iowa Appellate, February 22, 1990). Official notice is taken of the papers filed by defendants in the industrial commissioner's file. Iowa Administrative Procedure Act 17A.14(4). The forms 2A filed by defendants indicate that claimant was paid temporary disability benefits through April 30, 1986. The file further indicates that claimant was not being paid benefits on June 4, 1986 because the insurance carrier had not yet received a final permanent partial disability rating, but that they were beginning a 5 percent permanent partial disability for an injury to the body as a whole on June 4, 1986. Wherefore, it is determined by this decision that claimant was entitled to additional temporary disability benefits from the time defendants terminated benefits on April 30, 1986 until they commenced benefits again on June 4, 1986, a period of five weeks as near as it can be determined from the available evidence. Claimant supplied no evidence on how long he should be entitled to Auxier benefits. Claimant had not returned to work during this period of time, nor had he returned to work at the time of the hearing on August 17, 1988. Claimant was no longer prejudiced by the lack of notice after workers' compensation benefits were resumed on June 4, 1986 and continued eventually for some 50 weeks based upon the 10 percent body as a whole rating of Dr. Robb. Defendant insurance carrier was quite dilatory in paying certain medical benefits incurred by claimant for authorized medical care without any satisfactory explanation of why the payment of these medical bills was not made in a timely manner. These bills were turned over to a collection agency which caused unnecessary stress on claimant without any justification given by the insurance carrier. Nevertheless, it has been decided by the Supreme Court of Iowa that neither Iowa Code section 86.13, relative to penalty benefits, or Iowa Code section 85.30, relative to Page 14 interest, applies to the late payment of medical expenses. The court found that these statutes by their expressed terms apply to weekly compensation payments of industrial disability and do not support an allowance for interest or penalties for the late payment of medical expenses. Klein v. Furnas Elec. Co., 384 N.W.2d 370 (Iowa 1986). The court also determined that Iowa Code section 535.2, which deals with interest rates, did not empower the industrial commissioner to add interest on to an award of medical expenses. Wherefore, it is determined that claimant is not entitled to penalty payments or interest payments on the late paid medical expenses, but claimant is entitled to continuation of the temporary disability benefits from April 30, 1986 to June 4, 1986, a period of five weeks. costs Claimant has requested the taxation of several costs, some of which are allowable, and some of which are not. Claimant itemized 13 specific costs in paragraph D, taxation of costs, of the prehearing report by an itemized supplement attached to the prehearing report. Claimant is not entitled to the following costs and claimant is not entitled to recover these costs: 1. Payment to St. Luke's by claimant for records on 8-28-85 $ 41.25 2. Payment to St. Luke's by claimant for records on 10-7-86 7.25 4. The portion of the doctor's fee for evidentiary deposition billed 2-19-87 of Dr. MacMenamin that exceeds $150 ($600 minus $150 = $450). 450.00 8. Copy of deposition of Kurt Fenchel billed 4-30-87 65.75 9. Mileage for travel to Dubuque for Sanford interview and later deposition (2 trips) 280 miles at 25 cents/mile 70.00 11. Costs by vocational rehabilitation (Sanford) 7.50 12. Photographs 8 at $5 each 40.00 13. Costs of obtaining tax returns for defendants 27.00 All of these costs are disallowed because they are considered to be trial preparation expenses and cannot be identified as an allowable cost under Rule 343 IAC 4.33. The following costs are allowed to claimant and defendants are to reimburse claimant for these costs: 3. Certified mail paid 8-1-86 $ 1.67 4. Doctor's fee for evidentiary deposition billed 2-19-87 of Dr. MacMenamin 150.00 5. Court reporter's charge for Dr. MacMenamin billed 2-28-87 212.00 6. Medical report by Dr. MacMenamin billed 5-13-86 50.00 7. Court reporter's charge for deposition of Michael Twomey, LPT billed 4-23-87 110.00 TOTAL Page 15 $523.67 Item 10 on claimant's list labeled "Deposition cost of Sanford" in the amount of $168 is not accompanied by an itemized statement, therefore, it cannot be determined whether it is the witness fee or the court reporter's fee nor can it be determined whether the amount has been paid or not. If claimant proves payment to defendants of this $168 and it is an expert witness fee then claimant is entitled to $150 of this $168 item. If this is the court reporter's fee for Sanford and claimant proves the payment this expense, then claimant is entitled to recover the entire $168 from defendants. Wherefore, it is determined that $523.67 are allowable costs for items 3 through 7 on claimant's list of itemized costs. conclusions of law Wherefore, based on the evidence presented and the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury to the body as a whole because the injury to the left shoulder caused a loss of range of motion in the shoulder and a disability to the shoulder is a disability to the body as a whole. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). That the injury was the cause of permanent disability as stipulated to by the parties. 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 28 percent industrial disability to the body as a whole. He as not proven any industrial disability beyond his impairment rating. 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 is entitled to 140 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)"u". That claimant is not entitled to penalty benefits or interest for the authorized medical expenses which defendants failed to pay in a timely manner. Iowa Code sections 85.30; 86.13(4) and Klein v. Furnas Electric Co., 384 N.W.2d 370, 375 (Iowa 1986). Page 16 That claimant is entitled to the continuation of temporary disability benefits from April 30, 1986, when they were discontinued without 30 days notice to claimant, until June 4, 1986, at which time the industrial commissioner's file shows that defendants said they would continue workers' compensation benefits to claimant which is a period of five weeks. Iowa Code section 86.13 unnumbered paragraph two, second sentence; Himschoot v. Montezuma Mfg., file number 672778 & 738235 (Appeal Decision April 15, 1988); the unpublished decision of the Court of Appeals dated February 2, 1990 is not citable as precedent, but the determination of the court is influential in showing that claimant's entitlement to additional benefits is more than simply 30 days of benefits, but should run until a time that claimant no longer suffered any prejudice from the termination of benefits without notice. That claimant did not sustain the burden of proof by a preponderance of the evidence that he is an odd-lot employee. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). That claimant did not sustained the burden of proof by a preponderance of the evidence that he sustained a compensable psychological, emotional or mental injury for the reason that claimant introduced no expert medical testimony on this point. That claimant is entitled to $530.67 in costs as shown above. order THEREFORE, IT IS ORDERED: That defendants pay to claimant five (5) weeks of additional healing period benefits at the stipulated rate of two hundred thirteen and 12/100 dollars ($213.12) per week for the period from May 1, 1986 through June 4, 1986, in the total amount of one thousand sixty-five and 60/100 dollars ($1,065.60) commencing on May 1, 1986. That defendants pay to claimant one hundred forty (140) weeks of permanent partial disability benefits at the stipulated rate of two hundred thirteen and 12/100 dollars ($213.12) per week in the total amount of twenty-nine thousand eight hundred thirty-six and 80/100 dollars ($29,836.80) commencing on June 5, 1986. That defendants are entitled to a credit for fifty (50) weeks of permanent partial disability benefits paid to claimant at the rate of two hundred thirteen and 12/100 dollars ($213.12) per week in the total amount of ten thousand six hundred fifty-six dollars ($10,656) as stipulated to by the parties in the prehearing report. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. Page 17 That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Rule 343 IAC 4.33, and that these costs are to specifically include the five hundred twenty-three and 67/100 dollars ($523.67) determined above to be owing to claimant by defendants. That defendants file claim activity reports as requested by this agency pursuant to Rule 343 IAC 3.1. Signed and filed this ____ day of December, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Benjamin W. Blackstock Attorney at Law STE 201, Cedar Plaza 385 Collins Road N.E. Page 18 Cedar Rapids, Iowa 52402 Mr. Matthew Brandes Attorney at Law 1200 Merchants National Bank Bldg Cedar Rapids, Iowa 52401 Page 1 1803.1; 51803; 54100; 3102; 4000.10; 4000.20; 3800; 2709 Filed December 18, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : KURT FENCHEL, : : Claimant, : : vs. : : File No. 799117 RICK D. MILLER, d/b/a MILLER : CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED FIRE & CASUALTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803.10 It was determined that claimant sustained an injury to the body as a whole. Even though the extremely severe fractures were in the femur and humerus (and also the patella), there was clear proof that the humerus extended beyond the scheduled member into the body as a whole because of limitation of motion of the shoulder. The hip also was stiff which could justify a body as a whole injury but the decision is based on the shoulder about which there is no question. Several precedents reviewed. 51803; 51400 Claimant awarded industrial disability in the same percentage as his impairment rating (converted and combined ratings) of 28 percent of the body as a whole because the doctor released him to return to his former employment without restrictions. Claimant's inability to work was entirely subjective. There was no objective evidence to support it. Claimant had not sought any work after the injury except that required to obtain unemployment compensation and to read the newspapers, ask friends, and put his name in at job service. For the same reasons it was determined claimant was not an odd-lot employee. The testimony of numerous friends and relatives concerning Page 2 psychological, emotional, or mental injury was not persuasive in absence of professional medical evidence. 3102 Claimant was not entitled to an order for vocational rehabilitation benefits under Section 85.70 because claimant did not prove that he could not work due to the injury and he did not present a state recognized program. The evidence showed claimant avoided vocational rehabilitation when it was offered. It was determined that employer had no duty to provide vocational rehabilitation other than that provided for in Section 85.70 even though an employer's offer or a claimant's pursuit of vocational rehabilitation may sometimes be used as an industrial disability factor in some cases. 4000.10 Defendants terminated healing period benefits and were ordered to pay continued healing period benefits from the date they were terminated until defendants began paying permanent partial disability benefits (a period of five weeks) at which time claimant ceased to be prejudiced by the termination by not receiving an Auxier notice. This is a developing area where the supreme court has not stated what the proper penalty is for not giving an Auxier notice but the court of appeals gave some guidance in a recent unpublished decision. 4000.20; 3800 Defendants were not unreasonable by starting temporary disability benefits on the twenty-second day after the injury even though the statute calls for 11 days without some showing that it was unreasonable or without probable cause. Defendants were not liable for penalty benefits (Section 86.13) or interest (Section 85.30) on medical benefits even though defendants were quite delinquent without any stated justification or excuse and even though it caused great stress on claimant from collection agencies. 2709 Several costs were presented. Some were allowed. Some disallowed. Reasons stated for allowance or disallowance.