BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLAUDE F. LEASE, JR., Claimant, vs. File No. 799318 HAWKEYE CHEMICAL, A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Claude F. Lease, Jr., against his employer, Hawkeye Chemical, and its insurance carrier, National Union Fire Insurance Company, to recover benefits as a result of an injury sustained on July 6, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner at Davenport, Iowa on July 22, 1987. A first report of injury was filed on July 22, 1985. The parties stipulated at hearing that claimant has already been paid 76 4/7 weeks of temporary total disability. The record in this case consists of the testimony of claimant, of Connie Lease, of Patricia Whit, of Nick McQuistion, of Nancy Nordeen, of Lester Schofield, of Wayne Schaffer, of James Fay, of Donald Lambert, of Julie Bush, of Sara Misiewicz and of Ruth Ann Keiler as well as of exhibits 1 through 13 offered jointly; of exhibits I through XII and XIII offered by claimant; and of exhibits A through K offered by defendants. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimants rate of compensation in the event of an award is $269.72. They stipulated that claimant has never returned to work for this employer and that claimant did receive an injury arising out of and in the course of his employment on July 6, 1985 which was causally related to claimed temporary total disability. The issues remaining for resolution are: 1. Whether a causal relationship exists between the injury and claimed permanent disability; and, 2. Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement, including whether defendants are entitled to a credit for overpayment of temporary total disability benefits from April, 1986, when defendants LEASE V. HAWKEYE CHEMICAL PAGE 2 allege claimant returned to other employment, until December 1986 and whether claimant is an odd-lot worker under the Guyton doctrine. The parties further stipulated that all letters introduced were sent by mail properly addressed to the correct address on the letters and that all were received by the party to whom they were addressed. REVIEW OF THE EVIDENCE Claimant completed high school and was 38 years old at time of hearing. He described himself as having been a "B" through "D" student. Claimant has had military training as a noncommissioned officer, having once achieved the rank of Specialist Fifth Class as well as having been a heavy equipment operator, specializing in road construction and maintenance for the military. He described himself as a certified demolition expert. Claimant has also taken a five-hour, junior college course in blueprint reading. He has worked as an assistant produce manager in a grocery store, a sheet metal worker, a wood worker, a punch press operator, a drill press operator and has also worked in welding, brazing, plumbing and electrical work. fie reported that his electrical work has consisted of installing ceiling fans and light fixtures. Claimant denied he had done such activities since his injury and stated that all such activities had required lifting of greater than 20 pounds. Claimant reported that he had completed two hours of duty in Vietnam. He indicated he was injured on two different occasions, with the second injury resulting from an explosion of a large chemical plant in an area of hostile fire. Apparently, a number of individuals in claimants command, as well as Vietnamese civilians, were killed in that incident. Mental health reports indicate that claimant felt some responsibility for the inability to prevent the explosion. Claimant testified that he is a recovering alcoholic who, after drinking extensively from 1969 until 1981, has not drunk since treatment in 1981. Claimant began work at Hawkeye Chemical in 1979 and worked until his injury on July 6, 1985. Claimant described his work as manual labor involving twisting and lifting of up to 30 pounds. He reported he did so without difficulty. Claimant states that, in July, 1985, he was earning approximately $10.00 per hour with a gross weekly wage of approximately $600.00, including overtime. Claimant was injured when the building in which he was working at the chemical plant exploded. Apparently, at least one person was killed in the explosion. Claimant reported that he was thrown approximately 20-25 feet and that, when he first became aware following the explosion, he initially saw a mangled foot. Claimant stated that his back and left shoulder hit a wall and that he then fell to the ground. Claimant testified that he had hallucinations with Vietnam flashbacks subsequent to his injury. Mental health reports in evidence confirm that claimant was treated for post-traumatic stress disorder as well as for anxiety subsequent to the injury. Claimant's left cheek was injured. Claimant's left zomata was reanchored subsequent to his injury. Claimant had lacerations to his head and left shoulder. Apparently, he had bruising and back strain which subsequently resolved. Claimant reported that glass was imbedded in his skull and his shoulder during the explosion and that such continues to LEASE V. HAWKEYE CHEMICAL PAGE 3 work its way out, sometimes requiring surgical removal. Medical records in evidence confirm such. Claimant reported he had a concussion following the injury with severe confusion, blurred vision and blackouts. He indicated that he has now satisfactorily recovered from such. He reported light sensitivity for approximately a year following the injury, but stated he has now recovered from such. Claimant's medical records do not reflect any permanent injury to his eyes or vision on account of the explosion. Claimant reported he has ringing in his ears and difficulty with high-pitched tones as described in his audiogram. An audiogram of December, 1984 indicates that claimant complained of ringing of the ears and showed a similar loss of hearing. Claimant reported that he underwent physical therapy for his shoulder consisting of whirlpool treatments, heat treatments, Cybex treatments, range of motion exercises, weight lifting and swimming as well as deep water exercises at the Y. He reported that he lifted free weights of never more than five pounds and that he continued, as of time of hearing, to swim six to eight hours per week at the local YWCA. Claimant testified that he does an underwater breast stroke, an Australian crawl and a side stroke. He denied that he does a back stroke "much." Claimant reported that he continues to have constant aching in his left shoulder muscles and a decrease in range of motion in the left arm and shoulder, especially in a cold environment. Claimant stated that shoulder stiffness produces tightening of the neck muscles which then produces headaches. Claimant reported that he must warm up with heat before lifting or it "hurts like hell" the next day. Claimant denied that he could bring his left hand behind his head or to his center back. He reported he could not extend his arm when his arm [or shoulder] was stiff. Claimant reported that, despite his emotional concerns regarding returning to the area in which the explosion occurred, he was willing to return to Hawkeye Chemical, if work could be provided for him within restrictions imposed by John M. O'Shea, M.D. Claimant described those as no left arm lifting; no right arm lifting of greater than 20 pounds; and, no stretching or reaching. Claimant reported that James Fay, Human Resources Manager at Hawkeye Chemical, refused to release him for work with such restrictions when claimant gave Mr. Fay a letter of Dr. O'Shea outlining such restrictions on or about December 15, 1986. Claimant testified that he has sought employment with approximately 150 employers since December, 1986. He agreed that he had not applied for employment by registering at Job Service nor had he sought state or other vocational rehabilitation services, however. Claimant stated that, in March, 1987, he took over his wife's Quad Cities Times newscarrier district manager position. He agreed he had earlier helped his wife with her two Quad Cities Times paper routes. He characterized the routes as having been in his wifes name with employment checks addressed to his wife. Claimant agreed that he had collected on the routes and had assisted his wife in working the routes once she acquired the second route in August, 1986. Claimant reported that his wife and her helper did all the heavy lifting involved, such as putting paper bundles in the car. Claimant stated that, as district manager, he earned $3.50 per hour with a gross weekly wage of $150.00. He reported that the job required little heavy lifting until he was required to take in vandalized newspaper boxes. He reported that such weighed from 75-100 pounds and that he quit the district manager job rather than continue to attempt to deliver such boxes. As district manager, claimant had LEASE V. HAWKEYE CHEMICAL PAGE 4 collected Quad Cities Times monies from local carriers, local merchants and newspaper boxes. He had also done bookkeeping consisting of reporting and crediting accounts and had been responsible for circulation and promotion of the newspaper as well as supervising individual carriers. Claimant's wife has opened an ice cream shop and restaurant. Claimant reported that the shop grossed between $200-$300 per week as of time of hearing and was then netting $100 per week. Claimant reported he does the ordering, advertising and bookwork for the ice cream shop. He also does advertising and promotion for a bike trail group on a voluntary basis. He reported that that includes writing press releases and contacting the media. Claimant indicated he has applied for the job of manager of that trail and thinks he has a pretty good chance of getting the job. He reported it would pay $5.00 per hour with 40-60 hours of work per week. Claimant projected that his wife's ice cream job would clear $500-$600 per week within six months. He reported that the shop has met all daily and weekly production goals set as of time of hearing. Claimant indicated he has a potential opportunity to manage the mall in which the ice cream shop is located. He reported that that job would involve rent collection, supervision of major repairs and advertising the mall. Claimant felt he could do such work. Claimant opined he could not work at Hawkeye because he would be unable to climb ladders, change 55-gallon oil drums or carry weights of at least 10-15 pounds as required. Claimant testified that others had lifted all heavy items involved in the Leases' four moves subsequent to his injury. Claimant agreed that he has driven to Minneapolis and back, but reported that he took frequent stops and that his wife assisted with the driving. Claimant's original military discharge was a general military discharge for the good of the service. It was subsequently upgraded to a general discharge. Claimant apparently had a thumb injury while employed at Hawkeye Chemical for which he was on light-duty work only for approximately a year and a half. Claimant reported that he saw Xerxes R. Colah, M.D., at the insurer's direction. Claimant described Dr. Colah as belligerent towards claimant and his wife. The employer advised claimant that Dr. Colah, an orthopaedic surgeon, was the authorized treating physician and that further care from Dr. O'Shea, a family practitioner, was not authorized. After seeing Dr. Colah on two occasions, claimant refused to return to Dr. Colah. Claimant reported he has not seen Dr. O'Shea since December, 1986, but that he self-treats his shoulder with swimming at the Y. Claimant expressed his opinion that his shoulder condition has not improved since January, 1987. Claimant testified that he "traded" an employer-provided Schwinn Airdyne bicycle for a Y membership. Correspondence in the record reflects that claimant's counsel was directed to advise claimant that the Schwinn Airdyne bicycle was to be returned to the insurance carrier when claimant no longer needed the bike for his physical rehabilitation. Claimant testified that he felt justified in "trading" the bike since he had, at times, received workers' compensation checks and mileage checks on an untimely basis. LEASE V. HAWKEYE CHEMICAL PAGE 5 Connie Lease, claimants wife of nine years, substantiates claimant's testimony regarding his restrictions on life activities subsequent to his injury. She reported that she accompanied claimant to his examinations with Dr. Colah and substantiated claimants claim that Dr. Colah had mistreated claimant. Mrs. Lease denied that her ice cream shop could potentially net between $500-$600 per week. She agreed that claimant had assisted her on her Quad Cities paper route, but denied that claimant had been a Quad Cities Times employee until March, 1987. Patricia Whit, a beautician whose shop is in the same mall as Mrs. Lease's ice cream shop and who has known claimant for eight years, reported that claimant is unable to carry on fitting activities or lawn or car maintenance work, all of which he had done prior to his injury. Nick McQuistion reported that he has known claimant for approximately one year, but had not known claimant prior to his injury. He reported that he assists claimant with lifting, moving and carrying. Mr. McQuistion reported that he and three other individuals had all done the heavy lifting involved in claimant's last move. Mr. McQuistion reported that he does heavy work in the ice cream shop and stated that he has never seen claimant move more than a metal folding chair. McQuistion reported he is a friend of the Leases' and is not paid for the work he does for them. Nancy Nordeen reported that she has known claimant and his wife for approximately four years. She testified she had worked with the couple on the Quad Cities Times paper routes. She indicated that claimant's wife was the Quad Cities Times carrier for the Leases' routes, but that she, claimant and his wife all worked their routes together with Mrs. Lease and Ms. Nordeen taking opposite sides of the street when Mrs. Lease was available to work the route. Ms. Nordeen testified that, if Mrs. Lease were not available to work the routes, she did both sides of the street, unless there was an easy access, in which case claimant, who worked with her, was able to do the easy access route. Ms. Nordeen testified that she and Mrs. Lease did all bundle lifting. She reported that she helped the Leases lift during three of their household moves and that, in each move, "men" did the lifting. Ms. Nordeen characterized claimant as sore after lifting during the last move and after lifting paper boxes. Lester Schofield, a supervisor at Hawkeye Chemical for the last 23 years, testified that he was responsible for claimant's work area and familiar with claimants job work responsibilities as of July 6, 1985. He reported that claimant was a chemical operator who operates and monitored equipment in his building. He reported that the operator supervised shutdown and startup, took readings, took pressures, took temperature flows and made minor adjustments to electrical load with such activities comprising less than 50% of the job. Mr. Schofield reported that "housekeeping" comprised approximately 70-80% of claimant's job. He described "housekeeping" as cleaning oil spills, ousting, sweeping, picking up debris and painting in the work area. Schofield reported that there are six operators in the control room with each assigned an area of responsibility which alternates daily. An operator needs to.carry 15-pound cans of oil for the compressors and, approximately three or four times weekly, 55-gallon oil drums must be changed. The oil drum changes are spread over three shifts with one shift responsible LEASE V. HAWKEYE CHEMICAL PAGE 6 for the change at least once or twice per week. Two operators can work on changing the oil drum together and an operator could always ask a second operator for help in changing the drum. Schofield reported that the clean and steamline hose would weigh greater than 20 pounds if carried, but that it is possible to drag the hose one-handed and not carry it. The hose can be hooked up with both hands and weighs no more than a couple of pounds. Schofield characterized the job as involving no above-head lifting. He reported that it was possible to climb the ladder one-handed, although climbing two-handed would be a better safety practice. Schofield characterized claimant as doing satisfactory work when "there." He did not believe he could currently rearrange employees to find work for claimant. He opined that it would create problems to have other persons do part of claimant's job, although he believed it was possible for claimant to do most of his job within Dr. OSheas restrictions, although such was a management decision. Wayne Schaffer described himself as a contractor for the Quad Cities Times who delivers Sunday morning papers to claimant's area for carrier delivery. Mr. Schaffer stated that he must take newspapers off his delivery truck for newspaper carriers. He testified that claimant had unloaded paper bundles from the truck's tailgate on occasion. Claimant unloaded ten or more bundles, each weighing about 20-25 pounds with the heaviest being about 40 pounds. Schaffer reported that claimant never complained of physical problems while doing such. He reported that claimant had also picked up papers at the delivery site, LEASE V. HAWKEYE CHEMICAL PAGE 7 Styles Drug Store, on approximately 10-15 occasions. Schaffer testified that claimant then lifted up to 14 bundles and placed them in his car or van. Claimant was at times accompanied by another woman while doing such. Schaffer stated that at times claimant picked up the bundles and at times the woman did so. Schaffer reported that, on three to five occasions, claimant was working alone. Schaffer reported that he saw claimant doing newspaper pickup from April or May, 1986 to Spring, 1987. James Fay, Human Resources Manager for Hawkeye Chemical for the last 17 years, testified that he was unaware of any time where Hawkeye had terminated an employee as a result of an on-the-job injury. Fay stated that, after October 16, 1986, he contacted claimant regarding claimant's work status and that claimant stated he would not return to work until either claimant or claimant's doctor released him to return to work. Fay reported claimant did not agree that he had no disability or that his injury was no longer compensable as he had been advised in an Auxier letter of October, 1986. Mr. Fay reported that Hawkeye Chemical relied upon the opinions of Drs. Colah and Campbell that claimant had no permanent physical impairment on account of his injury and that claimant had no psychiatric diagnosis or impairment on account of his injury and was therefore willing to allow a work return with a written work release slip. Fay reported that claimant was placed on a 30-day leave of absence in December, 1986 and on an indefinite leave of absence in January, 1987. Fay expressed his opinion that, when seen, claimant did not indicate a willingness to return to work. He opined that Hawkeye Chemical would probably be willing to let claimant try work and see how it goes. Claimant's area is now on layoff and, it claimant had been releases for work as of the time of hearing, he would have been recalled only following the layoff. While receiving workers' compensation benefits, claimant also received a company bonus of 80% of his wage, tax free. Fay could not recall claimant bringing him a copy of Dr. O'Shea's restrictions. Fay agreed that a Mr. Freeman, Vice-President of Manufacturing, would make the ultimate decision regarding rehire of claimant and that Mr. Fay had not discussed the matter with Mr. Freeman as of the time of hearing. Donald Lambert is both the credit manager for Hawkeye Chemical and the treasurer of the Hawkeye Chemical Credit Union. Mr. Lambert testified that he took claimant to small claims court in November, 1986 because claimant was behind on a credit union loan. Lambert reported that claimant testified in small claims court that he was not paying the loan because he was "mad" at Hawkeye Chemical as he had not received workers' compensation and medical benefits checks on time. Lambert indicated that the loan was 240 days past due when he took claimant to court and that he did not feel that either the workers' compensation checks or the medical benefits checks were that overdue. Lambert stated that he knew the Hawkeye supplemental bonus checks were mailed to claimant on a weekly basis. Wayne Schaffer described himself as a contractor for the Quad Cities Times who delivers Sunday morning papers to claimant's area for carrier delivery. Dr. Schaffer stated that he must take newspapers off his delivery truck for newspaper carriers. He testified that claimant had unloaded paper bundles from the truck's tailgate on occasion. Claimant unloaded ten or more bundles, each weighing about 20-25 pounds with the heaviest being about 40 pounds. Schaffer reported that claimant never complained of physical problems while doing such. He reported LEASE V. HAWKEYE CHEMICAL PAGE 8 that claimant had also picked up papers at the delivery site, Styles Drug Store, on approximately 10-15 occasions. Schaffer testified that claimant then picked up up to 14 bundles and placed them in his car or van. Claimant was at times accompanied by another woman while doing such. Schaffer stated that at times claimant picked up the bundles and at times the woman did so. Schaffer reported that, on three to five occasions, claimant was working alone. Schaffer reported that he saw claimant doing newspaper pickup from April or May, 1986 to spring, 1987. Julie Bush worked as a cleaning lady at Gateway Apartments from May 12, 1986 until March 12, 1987. Claimant and his wife resided at the Gateway Apartments from February to October, 1986. Ms. Bush initially worked six hours per day from 7:30 a.m. until 10:30 a.m. and from 1:30 p.m. until 4:30 p.m. When she was injured in December, 1986, she reduced her hours to three per day. She reported that she met claimant at the apartments and that she had seen claimant raise his arm above shoulder level while hanging and adjusting patio door curtains. She stated that claimant then had his arms above his head with his ears close to his elbow and his feet on the floor and was smiling. The patio doors are approximately seven feet high. Ms. Bush reported that she also saw claimant raising his arms above his head while sitting in a recliner at the apartment swimming pool with his hands grasped behind his head. She reported she had seen claimant with his hands above his head while doing a front swimming stroke as well as while diving into the swimming pool. She also reported she had seen claimant with his hands above his head while working in a stretched-out position on his car with the hood up. Bush reported she had seen claimant lift a bed frame at an apartment rummage sale and he had done so without any complaints or signs of discomfort. She reported having seen claimant collect money for the Quad Cities Times in May, 1986. Sara Misiewicz reported that she has resided in the Gateway Apartments in apartment #6 since August, 1984. She stated that claimant lived in a second floor apartment in her building from April to July, 1986 and that she saw claimant approximately three times per week. Ms. Misiewicz reported that claimant had lifted the frame of a twin bed at a garage sale. She characterized the frame as an older, almost cast-like frame weighing approximately 40 pounds. Claimant, she testified, had to lift the frame across and above a two-foot cardboard box. She testified that she saw no signs of pain or discomfort in claimant approximately two hours after lifting the bed frame. Ms. Misiewicz reported that she had helped claimant "skim" the swarming pool using a nine and one-half foot pole with an attached basket weighing approximately 20 pounds as well as experiencing water resistance while in the pool. She reported that claimant had used both hands extended to skim the pool which was approximately 20 feet wide. She reported that claimant had skimmed the pool for approximately 10 minutes on separate occasions without showing signs of problems on any occasion. Ms. Misiewicz reported that claimant had told her she could use the Schwinn Airdyne bicycle whenever she wished. She reported claimant stated he was going to "screw" the insurance company on account of his Hawkeye Chemical injury. Ms. Misiewicz stated that claimant "lots of times" said he could not use his left arm, but that she had seen him doing things that he said he could not do, such as lifting the arm above the shoulder, lifting heavy items and swimming. Ruth Ann Keiler has managed the Gateway Apartments for approximately four years. She reported that claimant moved into LEASE V. HAWKEYE CHEMICAL PAGE 9 the apartments in February, 1986 taking a two-bedroom apartment, subsequently moved into a three-bedroom apartment and finally, in July, moved into a one-bedroom apartment. She reported the Leases left the apartments in October, 1986. Apparently, the October, 1986 check for rent never cleared the bank and the remainder of the Leases' security deposit was never paid. Keiler reported she talked with claimant and his wife several times per day. She testified that claimant would sit at the pool with his hands behind his head. She testified that claimant installed ceiling fans in two of his apartments as well as having installed many blinds in his own as well as other apartments. She characterized the apartment walls as approximately eight and one-half to nine feet high with windows placed one and one-half to two feet from the ceiling. Keiler testified that she had seen claimant unload tables from a truck bed through the tailgate. She characterized the tables as weighing from 85-100 pounds. She states that claimant held on to two feet of the tailgate with five tables resting on it for approximately two or three minutes with no signs of pain or discomfort. She reported that two hands were needed to raise the tailgate and the tables and that claimant pulled the tables from the truck end while others carried the tables into the apartment. Keiler stated that she had seen claimant intermittently over the next several days and that claimant was "fine." Keiler stated that claimant had built a balcony flower box approximately six feet long and from one-by-fours. She indicated that claimant needed to get into the apartment garages to get the equipment, supplies and tools needed for the project. She reported that, to get into the garage, one would need to lift a six-foot garage door by placing both hands under the door and pushing the door over the head with one's arms extended. She reported that she did not see claimant do this action, but that claimant did come to her and get the garage door key and return the key after having completed the flower boxes. She reported that claimant carpeted his apartment deck. She reported that such would require putting down plywood or presses board and nailing. Keiler stated that the Schwinn Airdyne had been in her apartment and that she had used it from August 1, 1986 to approximately October 15, 1986. Keiler reported that claimant told her to put as many miles on the bike as she liked since they would probably "need a picture of" the miles for court. Keiler reported that claimant had collected for the Quad Cities Times from April to July, 1986. She reported that claimant and his spouse had told her that each had routes and that each delivered papers. Keiler reported that she did not believe that claimant and his wife were "truthful." The balance of the oral evidence, including claimant's rebuttal testimony, has been reviewed and considered. Dr. Colah testified by way of his deposition taken April 23, 1987. Dr. Colah is board-eligible in orthopaedics. The doctor initially evaluated claimant on July 28, 1986. Claimant then had vague point tenderness over the supraspinatus and pectoral anterior, but an overall shoulder evaluation was clinically within normal limits. The doctor stated that a discrepancy existed between claimant's sitting and his lying straight leg raises, but that there were no definitive objective findings as regards claimant's back. He characterized the discrepancy between the two straight leg raising tests as suggesting that one of the tests was not accurate. The doctor ordered Cybex evaluation and an arthrogram of claimant's left shoulder. The doctor again evaluated claimant on August 28, 1986 and reported that claimant could then abduct his shoulder from 0 to 90 LEASE V. HAWKEYE CHEMICAL PAGE 10 degrees, but had subjective pain complaints beyond 90 degrees. An arthrogram was performed on August 29, 1986. Dr. Colah indicated that the arthrogram showed no evidence to suggest either a partial or a complete tear of the rotator cuff. Colah reported that claimants Cybex evaluation graph patterns did not suggest pain response at a particular spot during range of motion testing and, hence, did not coincide with claimant's subjective pain symptoms. He reported that strength evaluations sometimes showed an inconsistent Cybex pattern suggesting that claimant was not making a maximum effort. After reviewing the medical records supplied him, as well as the results of various tests performed, and after observing claimant's left shoulder, the doctor was unable to document any specific, consistent symptom complex pattern nor was he able to document consistent objective findings which would assist in making a definitive anatomical diagnosis pertaining to claimant's shoulder. The doctor reported that claimant did not show apprehension when his shoulder was abducted to 90 degrees as would be expected had claimant an unstable shoulder. He reported that, when evaluated, claimant had normal shoulder contours in his left shoulder and had no sensory deficits in his left arm or shoulder. Reflexes were within normal limits. Dr. Colah explained that range of motion is possible in spite of scarring, but that severe scarring could inhibit range of motion. He did not believe that claimant had scarring to such a degree as it would inhibit claimant's range of motion. Dr. Colah did not believe, on the basis of his evaluation, that claimant had myositis in his left shoulder or in the musculature surrounding that area. He reported that, with myositis, which signifies an inflammation of the muscles, there would be diffuse pain and no tenderness at a specific point or trigger area. He also reported that, with myositis, pain would be present with passive stretching of the muscles through a range of notion and the individual would be unable to actively contract the muscles without pain. He reported claimant was able to do both of those activities. Dr. Colah opined that it was very unlikely that a Cybex test would cause a hernia or would produce a muscle strain. Dr. Colah reported that, under the AMA guidelines for evaluation of permanent impairment, claimant had no physical findings documenting a physical impairment as claimant has either functional or full range of motion and no impairment of his strength in the left shoulder. Dr. Colah stated that, on the basis of his evaluation, he could not recommend work restrictions for claimant and that, on the basis of the records the doctor had reviewed, he could see no musculoskeletal reason for claimant to not work. Dr. Colah was unaware of any medical literature or school of thought which supported the notion that, if a person can lift with only one arm, such is likely to strain his back. Dr. Colah opined that, on the.basis of the results of Orthotron exercise studies of March 11, 1986 and January 2, 1986, claimant could lift 25 pounds with his left arm and could also reach with his left arm. He opined that, if an individual can swim with his left arm, he can also reach with his left arm in that, it the individual swam with classical strokes, he would be expected to take his shoulder through a full range of motion, which would be resisted motion. The doctor characterized it as unlikely that any activity which claimant did with his left shoulder was going to aggravate problems due to the injury of LEASE V. HAWKEYE CHEMICAL PAGE 11 July 6, 1985. The doctor stated it would be reasonable to expect that a [physician] who devotes his attention, his study and his practice to a limited area to be more conversant [as regards that area] than one who was devoted to a larger field of practice. Dr. Colah indicated that claimant presented an aggressive, hostile manner and made a scene even before examination when he first evaluated claimant. Dr. Colah felt it was reasonable for a physician who was unable to effectively cure a patient in a certain time to direct the patient to another source for care. Dr. Colah reported he would recommend a work hardening program for claimant as of this time, given the length of time that claimant has not worked. John M. O'Shea, M.D., testified by way of his deposition taken April 23, 1987. The doctor is board certified and board recertified in family practice. Dr. O'Shea reported that he first saw claimant on October 18, 1985 and last saw him on December 8, 1986. During the interim, the doctor saw claimant on 22 occasions on account of the July 6, 1985 injury and related conditions. The doctor's final diagnosis of claimant's condition was trauma to the left shoulder with scar tissue and myositis involving the left shoulder and resulting in decreased range of motion of the left shoulder. The doctor reported that he treated claimant with anti-inflammatory analgesics to decrease the pain and inflammation in the shoulder as well as with physical therapy LEASE V. HAWKEYE CHEMICAL PAGE 12 including heat treatments, range of motion exercises and swimming. Throughout the course of treatment until December 8, 1986, claimant continued to have decreased range of motion in his left shoulder, although the doctor believes claimant's range of motion improved during treatment. Dr. O'Shea reported that, as of December 8, 1986, claimant was able, on forward elevation, to go up to 105 degrees; go up to 45 degrees on backward elevation; abduct to 90 degrees and adduct to 30 degrees. Internal rotation was 35 degrees and external rotation was 95 degrees. The doctor characterized those ranges of motion as improved by approximately 50% over those of claimant when he was first seen in October, 1985. Dr O'Shea opined that claimants range of motion had now improved as far as it would. He opined that, under the AMA guides, claimant has a whole person impairment of 7.5 percent on account of his shoulder condition. The doctor did not believe that claimant had atrophy in the left shoulder when he last examined his shoulder muscles. He also did not feel that claimant had a permanent loss of strength in the left shoulder. he reported claimant's main problem was pain in the left shoulder. The doctor felt that claimant was honest, truthful and a non-malingerer. Dr. O'Shea opined that, as of December 8, 1986, claimant's back was normal. Dr. O'Shea explained that he felt claimant could not lift over 20 pounds with his right arm because, with his history of an injured back with probable scar tissue, claimant would be at a high risk for recurrent back pain and problems if he were not careful of the amount of weight he lifted. Dr. O'Shea stated that he restricted claimant to no lifting with his left arm and that, with all lifting performed by his right arm, it would tend to put a strain on the right side of his back. Therefore, the restriction of lifting no more than 20 pounds with the right arm was required to protect claimant's back. The doctor explained that claimants injury in his left shoulder had resulted in scar tissue forming in the muscles and soft tissue around the shoulder, that, therefore, claimant's shoulder was permanently at high risk for inflammation myositis and that lifting would exacerbate or tend to aggravate the inflammation and scarring in the shoulder. Dr. O'Shea opined that claimant could not return to a job that required him to do any type of heavy lifting in his shoulders. He reported that claimant had told him his job with Hawkeye Chemical involved lifting and working with equipment where he had to turn valves and working machinery and that he had advised claimant to not return to that job. Dr. O'Shea reported it was possible that, during a Cybex evaluation, if claimant were not performing the test properly, claimant could have strained muscles in the right lower quadrant of his abdomen where he had tenderness following the test. He opined that any other exertion from his upper body could have produced the same injury. He reported the usual course for a muscle strain is for it to resolve within six to eight weeks. Dr. O'Shea reported that, while he felt claimant was capable of doing lifting following his injury, he was concerned that lifting would aggravate his shoulder condition and, perhaps, his back condition and cause exacerbation of his inflammation and pain. He believed that, if claimant did lifting of more than the doctor prescribed, eventually claimants shoulder would flare up and he would have a great deal of pain with perhaps increased scarring and further permanent damage to his shoulder. The doctor reported he had told claimant such, but he had no opinion as to whether it would make sense for claimant to go ahead and do lifting anyway. The doctor characterized myositis as an LEASE V. HAWKEYE CHEMICAL PAGE 13 intermittent condition which often arises from scar tissue forming after an injury to a muscle. He indicated it may not always be present from the time of the injury, but may flare up when it becomes inflamed. The doctor reported it is possible for a person to have a torn muscle that heals with scar tissue and not have symptoms on account of the muscle and scar tissue. Dr. O'Shea opined that, as of May 8, 1986, it was medically indicated that significant improvement from claimant's work injury was not anticipated. The doctor agreed that, ordinarily the greater the complexity of a case, the greater the reason to consult a medical specialist in the area of the patient's problems. He agreed he is not a specialist in orthopaedic surgery. The doctor opined that the physician-patient relationship requires mutual trust, understanding and respect of the patient for the doctor as well as respect of the doctor for the patient. He reported that, if these conditions are not met, the patient will receive no benefit from the physician-patient relationship. The doctor reported that, after claimant was released from his care on December 8, 1986, he felt claimant required continued care for ms left shoulder pain and that the doctor intended to continue to direct that care by prescribing anti-inflammatory medication and physical therapy as necessary and by advising claimant on activities and exercises which may be beneficial to the shoulder. The doctor characterized as correct, however, a clinical note of his of March 26, 1986 which stated: I think physical therapy has reached its maximum benefit as far as professional physical therapy is concerned. On November 19, 1985, William R. Meyer, M.D., prescribed a stationary bike for claimant to help him in his physical therapy to recover from severe muscle contusion acquired in the explosion at Hawkeye Chemical. The Leases' Individual Income Tax Return for 1984 indicates that claimant was employed that year while his wife was working as a housewife. Wages, salary and tips were reported as $25,512.00. On November 3, 1986, Patrick G. Campbell, M.D., opined that claimant did not suffer from depression, stress disorder, organic brain disorder, anxiety disorder or any other mental disorder or impairment. He reported there was no psychiatric impairment and no psychiatric diagnosis and did not recommend psychiatric treatment. On December 2, 1986, Patrick Lennon, M.S.W., who had worked with claimant in individual and group counseling, opined that Dr. Campbell's diagnosis could very well be accurate as claimant had responded very well to counseling for post-traumatic stress disorder with acute relapse and adjustment disorder with anxious mood and because claimant and his spouse had talked about whether anything more could be done in the counseling process and it became clear that claimant was more concerned with getting "some kind of settlement from Hawkeye Chemical rather than being focused on his original concerns." A surveillance report of October 15, 1986 reports claimant having been seen moving a number of heavier weight items from his apartment into a van. Video tapes of claimant's activities were LEASE V. HAWKEYE CHEMICAL PAGE 14 also in evidence. On March 25, 1986, Bruce J. Gantz, M.D., of the Department of Otolaryngology at the University of Iowa Hospitals and Clinics, opines that, after reviewing information concerning claimant, it appeared claimant's hearing loss was present prior to the chemical plant explosion in which claimant was involved in July, 1985. He reported that there did not appear to be any progression in the hearing loss and that he therefore reversed previous opinion that the hearing loss was due to acoustic trauma. He reported that a possibility existed that claimant's tinnitus could have become worse following the intense noise exposure, but that, since claimant's ears were already damaged prior to the explosion, it would be very difficult to document such. On October 16, 1986, claimant was advised through a letter to his counsel from defendants' counsel that the sole authorized treating physician for complaints of an orthopaedic nature was Dr. Colah. Defendants stated they were unhappy with the progress claimant was making under the care of Dr. O'Shea and felt seeing a specialist would enhance his chances of recovery. On November 11, 1986, claimant was advised in a letter to claimant's counsel from defendants' counsel that, per the report of Dr. Campbell, no further mental health treatment of claimant by Mr. Lennon or any other health care practitioner would be provided by the insurance carrier. On November 13, 1986, claimant was sent an Auxier letter advising that, in view of the opinions of Dr. Colah and Dr. Campbell, it did not appear claimant was entitled to further temporary total or permanent partial disability benefits and that, for that reason, temporary total disability benefits would be terminated within 30 days from the date of the receipt of the letter or on the date claimant returned to work, whichever occurred first. The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS Our first concern is the causal relationship question. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 6, 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 LEASE V. HAWKEYE CHEMICAL PAGE 15 may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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 56, 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). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physicians examination at a later date and not when the injuries were fresh; the arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). A doctor's expertise and board certification may accord his testimony greater weight. See Ryland v. Pello, Inc., 32nd Biennial Report, Iowa Industrial Commissioner, 56 (Rev. Dec. 1975); Dickey v. IIT [sic] Continental Baking Co., 34th Biennial Report, Iowa Industrial Commissioner, 89 (Rev. Dec. 1979). An expert's opinion based upon an incomplete history is not necessarily binding on the commissioner, but must be weighed with other facts and circumstances. Musselman v. Central Telephone Co., 261 Iowa 352, 360, 154 N.W.2d 128, 133 (1969). Claimant has claimed injury to his ear as a result of his July 6, 1985 work injury. Medical evidence indicates claimant had preexisting tinnitus and a hearing loss substantially the same as recorded subsequent to his injury, however. Dr. Gantz has opined that, given the similarity of claimant's hearing loss following his injury to that prior to his injury, claimant's hearing loss does not result from acoustic trauma. Dr. Gantz has also opined that it would be difficult to document any aggravation of claimant's tinnitus post-injury. Claimant, therefore, has failed to establish any injury to his ears as a result of his work injury. Claimant also has claimed an eye injury as a result of his work injury. Yet, claimant, on his own testimony, indicated that his vision is normal and that his sensitivity to light has resolved. Claimant, therefore, has not shown any permanent change in his vision or the condition of his eyes overall as a result of his work injury. LEASE V. HAWKEYE CHEMICAL PAGE 16 Claimant claims emotional trauma and emotional injury as a result of his work injury. Evidence supports claimant's contention that he had a temporary aggravation of perhaps an underlying emotional condition subsequent to his injury. Such aggravation consisted of post-traumatic stress disorder and anxiety with flashbacks to claimant's Vietnam experience. Claimant sought and received mental health care as a result of such and, at a later date, voluntarily terminated his mental health treatment. Dr. Campbell, a psychiatrist, subsequently opined that claimant had no mental disorder or impairment and no treatment would be necessary for claimant. Mr. Lennon, who had counseled claimant, basically concurred with Dr. Campbell. The evidence, thus, does not support a finding of any permanent mental health condition of claimant which relates back to his work injury. The remaining and fighting issue is whether claimant has a left shoulder condition which is permanently disabling as a result of his work injury. Claimant alleges he has pain and restricted left shoulder motion. Dr. O'Shea basically concurs and has restricted claimant to no left arm lifting and no right arm lifting of over 20 pounds. Dr. O'Shea has also restricted claimant from reaching or lifting above the left shoulder and has assigned claimant a 7 1/2 percent permanent partial impairment rating under the AMA guides. Dr. Colah examined claimant and ordered Cybex testing and an arthrogram of claimant's left shoulder. Dr. Colah felt there were no objective findings LEASE V. HAWKEYE CHEMICAL PAGE 17 supporting a definitive anatomical diagnosis or any permanent partial impairment of claimant's left shoulder. [He also found that claimant had no lower back injury as a result of his work injury. The parties appear to concede this.] Dr. Colah found claimant had subjective complaints of pain, but that such complaints were inconsistent with pain responses on Cybex testing. Dr. O'Shea is a board-recertified family practitioner; he saw claimant on 22 occasions. Dr. Colah is a board-eligible orthopaedist; he saw claimant on two occasions before claimant voluntarily terminated treatment with Dr. Colah. Claimant was apparently subsequently advised that treatment with Dr. O'Shea was no longer authorized. After claimant refused further treatment by Dr. Colah, the then-authorized physician, claimant did not seek further treatment with Dr. O'Shea and did not petition for alternate care with Dr. O'Shea. Claimant testified that he has self-treated his shoulder injury from December, 1986. That behavior supports Dr. Colah's finding that claimant has no objectively occumentable current problem with his left shoulder. We recognize that claimant was involved in a severe and traumatic injury and do not doubt that pain and persistent problems can exist following such an injury; that such problems, where they exist, can interfere greatly with ones life activities; and, that such pain may produce restricted active range of motion. Unfortunately, even though Dr. O'Shea found claimant a credible patient and a non-malingerer, the greater weight of lay evidence as to claimant's activities as well as claimant's own testimony and demeanor at hearing suggest that claimant is not a credible reporter as regards his condition. Claimant appears to have a great need to exaggerate his symptomatology in order to gain personally from its existence. Given such, it is impossible to give great weight to claimants own description of his symptoms at hearing and to those symptoms as described subjectively by claimant to Dr O'Shea. The best objective evidence in the record on the question of whether any permanent partial impairment and permanent partial disability exists, therefore, is the testimony and findings of Dr. Colah. That testimony and those findings support the conclusion that claimant has no permanent partial impairment or disability as a result of his work-related injury. We need to discuss the benefit entitlement question only insofar as we need to address the issue of whether claimant is entitled to credit for temporary total disability benefit overpayment from April to December, 1986. Section 85.33(l) provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Defendants contend they are entitled to credit for temporary total disability benefit overpayment as claimant was actually working as a paper carrier from April to December, 1986. Lay evidence supports a finding that claimant did, at times, participate in parer routes through delivery of Quad Cities Times paper routes during that period. The paper routes were in claimant's wifes name and payments under the routes were to claimant's wife. Claimant, apparently either with his wife or with his wife and another individual, worked the route by driving LEASE V. HAWKEYE CHEMICAL PAGE 18 the car, making occasional deliveries and picking up and lifting newspaper bundles. Claimant was not a Quad Cities Times employee, however. Likewise, claimant's involvement in the newspaper delivery route through December, 1986 was not work of such a steady nature as to suggest a return to work as required under the statute. It appears to have been activity not inconsistent with continuing recovery from a substantial injury. Credit, therefore, is not allowed. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant sustained an injury on July 6, 1985 which arose out of and in the course of his employment by way of an explosion at his employer's place of business. Claimant was hospitalized for a period following the injury and had a fractured zomata which required reconstruction; lacerations of the left shoulder; light sensitivity on a temporary basis; and, temporary episodes of post-traumatic stress disorder and anxiety. Claimant's light sensitivity resolved within one year of his work injury. Claimant's tinnitus and hearing loss preexisted his work injury. Claimant sought treatment for his mental health condition and voluntarily terminated such treatment. Claimant does not have a current mental health condition related to his work injury and does not have a permanent partial impairment on account of any mental health condition. Claimant has normal or functional range of motion of the left shoulder upon objective testing. Claimant had no evidence of partial or permanent rotator cuff tear upon arthrogram. Claimant has subjective symptoms of pain. Claimant's subjective symptoms of pain are not consistent with objective findings on Cybex testing. Claimant has engaged in activities involving reaching above his head and lifting, which are not consistent with his claimed restrictions. Claimant was not a credible witness. Dr. O'Shea is a board-recertified family practitioner who saw claimant on 22 occasions. Dr. Colah is a board-eligible orthopaedic physician who saw claimant on two occasions. Claimant voluntarily terminated treatment with Dr. Colah and has not sought any alternate care. Claimant does not have a permanent partial impairment of his LEASE V. HAWKEYE CHEMICAL PAGE 19 left shoulder related to his work injury. Claimant's wife was a paper carrier for the Quad Cities Times in April, 1986 through December, 1986. Claimant participated in his wifes Quad Cities Times route by driving the car, delivering papers and, occasionally, picking up bundles of papers. The Quad Cities Times routes were in claimants wife's name and payments for the routes were made through claimant's wife. Claimant's activities with the Quad Cities Times were not inconsistent with continuing recovery from substantial injury. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established a causal relationship between his July 6, 1985 work injury and claimed permanent partial disability. Defendants are not entitled to a credit for overpayment of temporary total disability benefits from April, 1986 through December, 1986. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing further from this proceeding. Claimant pay costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 19th day of July, 1988. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Hood Attorney at Law 302 Union Arcade Building Davenport, Iowa 52801 Ms. Sara J. Sersland Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 1704, 1803 Filed July 19, 1988 HELENJEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLAUDE F. LEASE, JR., Claimant, vs. File No. 799318 HAWKEYE CHEMICAL, A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. 1704, 1803 Claimant did not establish entitlement to permanent partial disability as a result of a work injury to his left shoulder. Claimant was not a credible witness. Medical evidence was controverted. Objective testing did not support subjective complaints. Defendants were not entitled to credit for temporary total disability benefits overpayment on the basis that claimant worked with his spouse or another person on paper routes that were not in claimant's name. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LAURETTA BELLER, : : Claimant, : : vs. : : File No. 799401 IOWA STATE PENITENTIARY, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy, filed January 23, 1990, is affirmed and is adopted as the final agency action in this case with the following additional comments: The purpose of the workers' compensation statutes is clear in providing weekly compensation to injured employees. The amount of weekly benefits, which are not taxable, to be received by an employee is eighty percent of spendable earnings. Spendable earnings is defined in Iowa Code section 85.61(9)(1991) to be the "amount remaining after payroll taxes are deducted from gross weekly earnings." The employer's liability to an employee for workers' compensation benefits under chapter 85 is to leave the employee with funds that are in effect "after tax" compensation. If the defendant-employer's scheme were accepted, the liability of the employer for workers' compensation benefits would be something other than that contemplated by the statute. It is also interesting to note that the state of Iowa is the sole provider of the long-term group benefits for disability. Therefore, the credit for an employer under Iowa Code section 85.38(2) is the net amount which the employee receives after payment of all applicable taxes. Whether the disability benefits are taxable may be a complicated matter. E.g., see Iowa Code section 422.7(4) and 701 IAC 40.22. It is not within the purview of this agency to make a definitive ruling on whether particular disability payments are taxable or subject to tax. The conclusion reached in the preceding paragraph is sufficient to determine the issue before this agency. Page 2 Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 1701 Filed July 10, 1991 Clair R. Cramer MGT before the iowa industrial commissioner ____________________________________________________________ : LAURETTA BELLER, : : Claimant, : : vs. : : File No. 799401 IOWA STATE PENITENTIARY, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1701 The credit for an employer under Iowa Code section 85.38(2) is the net amount which the employee receives after payment of all applicable taxes. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAURETTA BELLER, Claimant, File No. 799401 VS. IOWA STATE PENITENTIARY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Lauretta Beller, against her employer, Iowa State Penitentiary, and its insurance carrier, State of Iowa, to recover benefits under the Iowa Workers' Compensation Act, as a result of an injury allegedly sustained January 10, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner in Burlington, Iowa, on March 17, 1987. A first report of injury was filed April 12, 1985. The record was considered fully submitted at close of hearing. The record in this case consists of the testimony of claimant, of George Beller, of Kimberly Carroll, of Laurie Carroll, of Rebecca D. Gary nee Hilary, and of Mary Lou Cooper, as well as of joint exhibits 1 through 17. Joint exhibit 1 is medical records of William Whitley, D.D. Joint exhibit 2 is a disability report of Marian S. Jacobs. Joint exhibit 3 is the deposition of Dr. Whitley. Joint exhibit 4 is the court reporter fee regarding said deposition. Joint exhibit 5 is the deposition of G. Patrick Weigel. Joint exhibit 6 is a statement of court costs. Joint exhibit 7 is income tax returns. Joint exhibit 8 is medical records of Keith W. Riggins, M.D. Joint exhibit 9 is the court reporter fee for the deposition of Dr. Riggins. Joint exhibit 10 is the deposition of Dr. Riggins. Joint exhibit 11 is the fee of Dr. Riggins for said deposition. Joint exhibit 12 is a March 9, 1987 report of Dr. Riggins. Joint exhibit 13 was identified as a March 4, 1987 report of Dr. Riggins, but is apparently a December 23, 1986 report of the doctor. Joint exhibit 14 is the Department of Corrections accident report. Joint exhibit 15 is a November 24, 1986 report of Sinesio Misol, M.D. Joint exhibit 16 is a March 4, 1987 letter of JoAnn E. Wilbur. Joint exhibit 17 is Blue Cross/Blue Shield BELLER V. IOWA STATE PENITENTIARY Page 2 documents regarding claimant. ISSUES Pursuant to the prehearing report, the parties stipulated that claimant's rate of weekly compensation is $215.23; that claimant remains off work; and that claimant's medical costs are fair and reasonable. The issues remaining to be decided are: 1. Whether claimant received an injury which arose out of and in the course of her employment; 2. Whether a causal relationship exists between claimant's injury and her claimed disability; 3. Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement; 4. Whether defendants are entitled to a credit under section 85.38(2) for benefits paid claimant; and 5. Whether claimant is entitled to payment of certain medical costs as medically necessary and causally related to her injury. As regards the issue of claimant's entitlement to healing period or temporary total disability, claimant contends that she remains off work and is still entitled to a running award of healing period benefits. Defendants contend that per exhibit 15, the report of Dr. Misol, claimant's healing period ended four to six weeks after January 10, 1985. REVIEW OF THE EVIDENCE Claimant is 39 years old and a high school graduate. She was a licensed cosmotologist in Kentucky, but not in Iowa, and has not done.cosmetology work since 1978. She has done some assembly line factory work, but has worked primarily as a correctional officer at prison facilities. She most recently worked as a correctional officer at Iowa State Penitentiary and testified that she was injured there on January 10, 1985 when she saw fell on the ice "really hard and fast." Claimant stated that she tried to brace her fall with her hands, but fell on her tailbone. She apparently continued on to a lower prison gate following that incident, but did report an injury to her wrist to her supervisors. An accident report detailing a wrist injury, but not injury to the rest of claimant's body was completed. Claimant initially saw William H. Whitley, D.O., for her wrist condition and treated with him for the wrist condition from January 10, 1985 through early February 1985. Whitley apparently prescribed pain medication for the wrist. Claimant continued working. Claimant did not see Dr. Whitley or anyone else for medical care from February 1985 until May 13, 1985 when she returned to Dr. Whitley for treatment of her "back." On that date, claimant told Dr. Whitley that last winter she had slipped at the prison and fell and since then intermittently, she had had low back pain, that during the last two or three weeks had localized and gotten worse. Dr. Whitley's examination BELLER V. IOWA STATE PENITENTIARY Page 3 of claimant on May 13, 1985 revealed tenderness on pressure with the coccyx bones and tenderness in the iliosacral and low lumbar spine areas. Impression was of a probable acute coccyxitis. He prescribed Naprosyn, Aristocort, and "shot" and a donut for claimant to sit on at work. On May 21, 1985, Dr. Whitley interpreted x-rays as confirming that the coccyx nest was pushed anteriorly and slightly to the right. Donald H. Rice, M.D., had reported on the same date that that finding might be a congenital variation or might be an old healed fracture through the sacrococcygeal svndermosis. Claimant apparently traveled to Kentucky by car in June 1985. This apparently caused acute flareup of her coccyxitis. Claimant apparently stopped working on July 5, 1985. Claimant returned to work on a four hour per day basis on October 3, 1986 inventorying furniture at the penitentiary. This involved lifting and bending furniture in order to get inventory numbers. She indicated that she could not handle the work physically and, therefore, left on December 17, 1986. Claimant saw Keith W. Riggins, M.D., on that date. Dr. Riggins is a board certified orthopedic surgeon. Claimant complained of low back pain which radiated to the right leg. Examination of the lumbar spine demonstrated range of motion to be full and complete with no vertebral spasm present. Deep tendon reflexes were 2+ and symmetrical and no motor sensory deficits were noted. Straight leg raising caused low back discomfort, but without radiation. X-rays demonstrated minimal degenerative spur formation at the L3-4 level, and computerized axial tomography of the spine demonstrated circumferential type bulging at the L3-4 level without localized herniation. On December 23, 1986, Dr. Riggins characterized claimant's condition as intervertebral disc disease and reported that she had specific functional limitations on bending, lifting and sitting for long periods, as well as on strenuous pushing, pulling or lifting with the upper extremities. Dr. Riggins opined that claimant would not be able to return to the full duties of a correctional officer, but possibly could return to some segment of those duties which precluded her being involved in altercations or performing bending or lifting activities. On March 9, 1987, Dr. Riggins opined that although claimant's intervertebral disc disease was not directly caused by her injury at work, the condition was aggravated by the injury. In his deposition, the doctor stated that a small herniation may or not be present fat the L3-4 level], but that the herniation was not impinging on the nerve roots and he did not consider claimant's condition surgically treatable. In the deposition, the doctor also stated in response to a question as to whether or not the injury could have aggravated claimant's preexisting degenerative process that "It could have done so but there is not way I can medically establish whether that actually be the case." He also reported it was possible but he had no way of knowing whether claimant's disc, characterized by counselor as a bulging disc, was consistent with a fall such as claimant allegedly sustained on January 10, 1985. He reported that an individual can develop this sort of condition without any sort of injury. Claimant testified that in Winter 1987 she asked to return to work within Dr. Riggins' restrictions, but was told that she could not return within those restrictions. Claimant opined that there was a televised surveillance job that she could do as a BELLER V. IOWA STATE PENITENTIARY Page 4 correctional officer. She agreed that she was not aware of whether these were available. Under the state's labor-manager agreement, she could not bump someone else to receive those jobs. In his deposition, Dr. Whitley opined that claimant had a two to five percent functional impairment of the body as a whole. He reported that claimant was virtually precluded from employment requiring sitting, but that he was uncertain whether she could tolerate employment involving standing. He opined that he was assuming that preinjury claimant's coccyx bones were in a different configuration than that now revealed on her x-rays. He indicated they had been forcefully moved from the normal position with ligament and tissue in the area preventing the bones from returning to normal position. He stated the following regarding claimant's healing: Q. Are the ligaments and the other connective tissues holding those bones together damaged? A. Well, they certainly were during the trauma, yes. Q. Have they healed? A. Apparently not. She's still hurting. Q. Are they going to heal? A. I would say maybe eventually there would be healing occur; but because of the deviation --You've got to remember you've got the sacral plexus of nerves exiting from the sacrum in that same area, which is about 50 percent of the nerves to the legs and lower back. (Dep. p. 18, 11. 19-25; p. 19, 11. 1-5.) He later stated that ligaments, once damaged, do not repair themselves but are either surgically repaired or remained damaged. He characterized as "very remote" the possibility of repairing the ligaments and cartilages surgically given the proximity to the sacral plexus and the possibility of damaging nerves in the area. The doctor later stated that claimant would be helped if while working in a sitting position she got every half hour for ten minutes or five minutes every fifteen minutes to avoid problems with pain. He characterized as speculation, however, the statement that if claimant could spend twenty minutes out of every hour on her feet, she could avoid the pain and function within the 95 to 98 percent range for her body as a whole. The doctor stated that when the coccyx bones were knocked out of alignment it would hurt and there would be discomfort but not necessarily bruising or discoloration. He also stated the following: Q. Would it have been less pain when she fell than when you saw her in May or more painful? A. It's hard to say. I would think it probably would have been more painful for a more prolonged period and BELLER V. IOWA STATE PENITENTIARY Page 5 it would probably hurt all the time rather than just sitting. (Dep., p. 31, 11 17-22.) The doctor stated that he saw claimant on February 7, 1985 with complaints of left arm and shoulder aching and with a ganglion cyst on the arm, but that claimant did not complain of pelvic problem nor of any injury to her right wrist. Claimant testified that her back pain following her injury was a dull pain. Claimant was examined by Sinesio Misol, M.D., a board certified orthopedic surgeon, on June 6, 1986. In the course of his examination, Dr. Misol reviewed Dr. Whitley's notes. The doctor reported that claimant had forward flexion of the spine to 90 degrees or normal with extension to 35 degrees. Bending to the right, 15 degrees, to the left, 10 degrees. Rotation to the right 20 degrees, to the left 20 degrees. Straight leg raising was negative. Claimant had no atrophy of the legs, and was able to walk on her heels and toes, and had normal knee and ankle reflex. Dr. Misol interpreted a scan performed on October 2, 1985 as essentially within normal limits except for a bifid coccyx with some anterior angulation of that portion of the coccyx. He did not know whether this was congenital or traumatic. He reported the bone scan was negative; he believed the coccyx had not been fractured. His impression was post contusion, coccyx with some residual discomfort. He opined that there was no permanent partial impairment and that the only thing keeping claimant from maximum recuperation was loss of muscle strength in the abdomen and approximately thirty pound weight gain. He recommended that claimant undergo an abdominal paraspinal muscle exercise program of isokenetio [sic] and isometric exercises. On November 24, 1986, Dr. Misol opined that claimant's concussion of the coccyx of January 10, 1985 would probably account for a four to six week healing time. A report of Dr. Whitley of June 17, 1985 states that x-rays taken in May 1985 have findings of an apparent fractured-dislocation of the coccyx with the largest proximal segment on the left side of the sacrum. Three smaller coccygeal segments are in articulation with the right side of the sacrum. The doctor states that by the history related this is most likely post traumatic, but that he cannot 100 percent rule out a bifid coccyx on a congenital basis. On cross-examination, claimant reported that she had told her husband that the Iowa State Penitentiary accident report was incorrect in that the report did not state that she had fallen on her tailbone, but that she otherwise did not tell anyone at the state penitentiary that the report form was incorrect. Claimant reported that Mary Lou Cooper, of the Iowa State Penitentiary, told her that if she would drop her lawsuit the penitentiary would pay claimant's medical bills and benefits. Claimant agreed that following May 1985, Blue Cross/Blue Shield paid her medical costs. She did not recall telling Dr. Whitley on August 12, 1985 that the claim was not work related and that, therefore, Blue Cross/Blue Shield should be paying it. Dr. BELLER V. IOWA STATE PENITENTIARY Page 6 Whitley's note of August 12, 1985 states the following: We are presently preparing the records for transfer to Mr. Hoffman for a workmens compensation. There seems to be some question, apparently they contacted Blue Cross, and Blue Cross said that they would go ahead and pay the medical records, but not to mention workmens compensation on the claim. I find that difficult to do inasmuchas [sic] that would be essentially untrue on our part. When we fill out the form it does ask if there is other insurance involved, so I am really not sure how to aPproach this insurance thing on her. I am certainly not going to lie to Blue Cross, thatOs up to them, if they wish to thatOs their business, but from the standpoint of our office we are not going to fabricate any information on a claim to Blue Cross. Claimant also denied that she had had pain in her back before January 10, 1985 and stated she had had three successful full-term pregnancies without particular discomfort in her back. Claimant reported that she has made no efforts with vocational retraining, that she had a very limited field for retraining, and had not looked into retraining because she had hoped to return to work at the prison. Claimant reported that her long-term disability benefits were being held as of March 4, 1987 during a period of reevaluation. BELLER V. IOWA STATE PENITENTIARY Page 7 Claimant's daughter, Kimberly Carroll, age 17, testified that she lives with her mother and remembers that her mother talked about both her wrist and her tailbone discomfort on the night of the injury. She reported that since the injury, claimant cannot lift laundry, unload the dishwasher, cannot rake the lawn, cannot grocery shop, cannot drive in a car for too long, and cannot sit or stand for very long. She indicated that claimant continues to use her donut and that claimant has difficulty sitting on bleachers for school activities. Laurie D. Carroll substantiated her sister's testimony regarding her mother's restrictions. George Beller, claimant's husband since September 1979, substantiated his stepchildren's testimony as regards claimant's life activity restrictions. He indicated that he has been a lieutenant at the Iowa State Penitentiary since 1980 and opined that claimant's job as a correctional officer requires manhandling and pad search of men larger than claimant. He stated that less than ten percent of correctional officers are female. Claimant is 5O5" tall and weighs 160 pounds. Mr. Beller reported that on January 10, 1985, claimant stated that she had fallen on her buttocks and that she hurt all over. Rebecca D. Gray nee Hillary, R.N., testified that she is a nurse with the Health Care Unit at the Iowa State Penitentiary. She reported that state penitentiary personnel report to the health care unit for work injury stabilization. She reported that medical personnel complete an accident report that records whatever the employee told the personnel concerning the injury. The employee reviews the report and signs it. On occasion, an employee will add other information following the review. The witness identified joint exhibit 17 as the accident report she had completed following claimant's injury in January 1985. She reported that what was written on the report is exactly what claimant told.her and that the report was filled out as claimant was describing the injury. The report reflects that claimant did not say she had hurt her back or had any complaints of back pain. Page 1 of exhibit 14 states: "Pd. state was walking down hill on west end slipped in snow--fell backwards and caught self with hands when fell down--c/0's of dull ache in st. wrist. No other c/0 Os of injury. "Page 2 of exhibit 14 states: "Has full R.O.M. in Rt wrist - No edema, discoloration or lac in wrist. C/oOs of dull ache. Pulse good gd in wrist. (nonintelligible) gd. Reports no further injury." Claimant signed page 1 of the report. Mary Lee Cooper stated that she has been a purchasing assistant at Iowa State Penitentiary and was handling workers' compensation claims for the penitentiary on January 10, 1985. Ms. Cooper stated that the employee contacts her when an injury occurs and completes a report of that injury. The employee is instructed to describe all circumstances of the injury and all body parts affected. Ms. Cooper could not recall claimant stating that she had back pain on January 10, 1985. Towards the end of May 1985, claimant did call her and state that claimant was experiencing pain in her tailbone. She then told claimant to see a doctor and that if the complaint was related to the January injury, a medical report would be needed to that effect. Ms. Cooper denied having ever talked to Blue Cross/Blue Shield, or that she had told claimant that if she dropped the workers' BELLER V. IOWA STATE PENITENTIARY Page 8 compensation claim the state would pick up the Blue Cross/Blue Shield. The witness did agree that she had talked to a Dick Andrews who had told her that if claimant stopped her claim, the state would go ahead and pay her bills. Marian S. Jacobs, a vocational consultant, evaluated claimant in late 1985 and prepared the report dated April 28, 1986. In the report, Ms. Jacobs indicated that Dr. Whitley had, as of January 1986 restricted claimant to one hour of standing, fifteen to thirty minutes of sitting, ten pounds lifting, thirty to forty-five minutes walking on grass and thirty minutes walking on concrete, but had not restricted claimant's bending and stooping. Jacobs interviewed claimant in her home on November 26, 1985. Claimant then was under Dr. Kantamneni's care for treatment of nervousness and depression and was taking antidepressants. Extended periods of sitting, standing, walking, or heavy lifting were described as aggravating claimant's tailbone and low back pain. Claimant's nonwork-related abilities included furniture refinishing, basic typing, and basic bookkeeping. Claimant reported doing housework at her own pace. Claimant demonstrated excellent communication skills during the interview and subsequent phone conferences with Ms. Jacobs. Ms. Jacobs administered the general aptitude test battery to claimant and reported that claimant's GATB test scores indicated claimant could be expected to perform satisfactory in a number of jobs classified as light or sedentary with sitting/standing/walking flexibility. The job included security guard (with periodic walking through clock rounds), cashier (in a work setting that permits sitting and standing during the work day), file clerk, mail clerk (in a work setting with no lifting requirements over ten pounds), and salesperson. Jobs outlined pay between $3.50 and $6.00 per hour, the median range being approximately $4.00 to $4.50 per hour. Jacobs opined that claimant also could transfer her skills to the following specific jobs in work settings allowing the necessary sitting/standing/standing flexibility with lifting up to ten pounds; that is, cosmotologist, telephone solicitor, and night clerk. She opined that claimant could earn approximately $10,000 per year working as a cosmotologist and approximately $3.35 per hour as either a solicitor or clerk. Jacobs opined that claimant was precluded from a move to an Iowa Merit Commission clerical position within the penitentiary because of Dr. Whitley's stringent limitations on her lifting, standing and sitting activities. Jacobs reported that claimant earned $652 biweekly or $8.15 per hour assuming a forty hour work week in July 1985, her last regular pay period. She indicated that claimant could expect to earn from $3.35 to $6.00 per hour in a specialized work setting suitable to her physical limitations post injury. Jacobs reported that claimant's past work experience as a production machinist, production assembler, production inspector, cosmotologist, telephone operator, and correctional officer involved extensive sitting or standing throughout the work day, and that, therefore, claimant was precluded from work in those areas unless the work duties were adapted to meet her physical needs. Jacobs reported that claimant had not utilized Job Service or Iowa State Vocational Rehabilitation Services because of her continuing treatment for depression and pain. Jacobs opined that claimant had marketable skills that were transferable to a limited number of job categories and work settings and that, therefore, her employment BELLER V. IOWA STATE PENITENTIARY Page 9 options are significantly curtailed by her injury. She opined that claimant is thirty percent vocationally disabled. G. Patrick Weigel evaluated claimant at the Mercy occupational Evaluation Center on June 6, 1986. Mr. Weigel is manager of the Mercy Occupational Evaluation Center and holds a Masters Degree in rehabilitation counseling. Weigel testified that during her evaluation, claimant was asked to perform two VALPAR work samples involving sitting. He indicated that claimant had done quite well on the samples even though they included sitting in total of approximately two hours and fifteen minutes. Weigel subsequently agreed that claimant had stood for a modest portion of the one of the samples, however. Weigel opined that if claimant were working as a cosmotologist in her own shop, her income level would be quite similar to her income while employed as a prison guard. He was unaware whether claimant qualified to work as a cosmotologist in Iowa. Weigel opined that claimant was motivated and was optimistic about her work with the State of Iowa and hoped to return to that work as soon as she was able. He opined that from the impressions and observations of the evaluation center, claimant would make a good employee. He opined that claimant should be able to find and keep competitive, gainful employment. On cross-examination, Weigel agreed that claimant had sat well back in the chair and utilized the back of the chair for support and did use her donut while performing the evaluation. He reported, however, that claimant did not verbalize any pain or discomfort or sitting problems while being evaluated. His impression was that claimant was taking medication for pain while being evaluated. Weigel subsequently noted that low back pain is generally a term to describe pain around the beltline, a little bit below, and above the tailbone. Weigel deposition exhibit 1 is the Center's report on claimant's evaluation. Under conclusions and recommendations, it is stated that nothing found in the vocational portion of claimant's evaluation would preclude claimant's returning to her previous employment. It was hoped that she would complete the exercise program Dr. Misol recommended and then would be physically able to return to her previous employment. Claimant's W-2 wage and tax statement for 1985 indicates that she earned $14,057.04. Claimant's earnings in 1984 apparently as reported on the deductions for married couple when both work on her income tax return was $16,820.48. Earnings in 1983 were $16,274.60. Earnings in 1982 were $15,717.38. Earnings in 1981 were $15,970.93. Joint exhibit 17 lists amounts Blue Cross/Blue Shield has paid for "back pain" for claimant. Joint exhibit 16 indicates that claimant's long-term disability benefits under state coverage have continued without interruption from November 9, 1985 to March 4, 1987. The total amount paid on the disability claim as of March 4, 1987 was $11,926.42. The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS Our first concern is whether claimant received an injury which arose out of and in the course of her employment. BELLER V. IOWA STATE PENITENTIARY Page 10 Claimant has the burden of proving by a preponderance of the evidence that she received an injury on January 10, 1985 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it.O Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 Iowa 352, 154 N.W.2d 128. Neither party apparently disputes that claimant injured her wrist in a work incident on January 10, 1985. The fighting issues are whether claimant's alleged coccyx injury and her alleged intervertebral degenerative disc condition are injuries which arose out of and in the course of that work incident. At the onset we note that claimant did not visit a doctor for her coccyx condition until May 13, 1985. Neither did she report injury to other than her wrist in reports she either,completed or reviewed upon completion for her employer,at the time of her January 10, 1985 injury. Neither do medical notes indicate claimant complained of low back or tailbone pain to Dr. Whitley when she saw him for treatment of her wrist in January and February 1985. Claimant continued to work through July 5, 1985. Her medical history to Dr. Whitley in May 1985 describes the January 10, 1985 work incident as the event in which claimant's pain originated. Claimant's husband and children testified that claimant had complaints of other than wrist pain from her injury date onward. Claimant did call her employer's representative in May 1985 and report she had back complaints which she believed arose from her injury. Sufficient credible evidence exists to establish that the physical results of claimant's January 10, 1985 work incident extended beyond her wrist. Whether claimant's coccyx condition and her intervertebral degenerative disc disease are disabilities relating to the January 10, 1985 injury remains to be decided. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 10, 1985 is causally related to the disability on which she now bases her 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 BELLER V. IOWA STATE PENITENTIARY Page 11 possibility is i sufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion-is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. 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). BELLER V. IOWA STATE PENITENTIARY Page 12 X-rays show that claimant's coccyx nest is pushed anteriorly and slightly to the right. Both Dr. Rice and Dr. Misol believe that finding might be congenital or could represent an old healed fracture. Dr. Whitley has opined that from claimant's history, the condition is most likely traumatic although he cannot rule out the possibility the condition is congenital. Claimant reported she carried three pregnancies to term without significant difficulties with "back." Claimant's spouse and children testified as to the difficulties with pain and with prolonged sitting claimant has had since January 10, 1985. Claimant continues to use a donut for sitting. No one suggests that device is not necessary for her wellbeing. Claimant did not need that item prior to her work injury. We find sufficient credible evidence exists to establish a causal relationship between claimant's work injury and disability related to her coccyxitis. We consider the question of whether claimant's degenerative disc disease relates to her work injury. On Dr. Riggins has diagnosed, treated and evaluated claimant's disc condition. He has rendered varying opinions as regards whether claimant's work injury contributed to the disc condition. He opined in his deposition both that it was possible, but he had no way of knowing whether claimant's "bulging" was consistent with a fall such as that of January 10, 1985 and that he could not medically establish that claimant's injury had aggravated her preexisting degenerative process. Riggins later opined that claimant's intervertebral disc disease was not directly caused by but aggravated by her injury. Claimant has gained thirty pounds since her injury. She has largely been inactive. Dr. Riggins did not see claimant until December 17, 1986. While Dr. Whitley stated that claimant had tenderness on pressure with the coccyx bones and tenderness in the iliosacral and low lumbar spine areas on May 13, 1985, other medical evidence suggesting claimant had a disc problem as a result of her January 10, 1985 injury is virtually absent. Dr. Misol found limited evidence of a back condition when he examined claimant in June 1986. He did not relate that to her injury. The almost two year period between claimant's injury and Dr. Riggins' diagnosis, Dr. Riggins' inconsistent opinions and the absence of objective evidence demonstrating claimant had significant low back complaints from her injury onward raise serious questions as to whether claimant's claimed disc condition relates to her injury. Claimant has not shown the requisite causal connection. We consider the question of claimant's benefit entitlement. As claimant has not shown her intervertebral disc disease relates to her work injury, we consider this question only as it relates to her coccyx problem and her wrist injury. We consider the healing period question. Claimant contends she is still entitled to a running award of healing period benefits. Defendants contend any healing period entitlement ended four to six weeks after her injury per Dr. MisolOs November 24, 1986 report. Dr. Whitley opined that surgical repair of claimant's damaged ligaments is not possible given their proximity to the sacral plexus. He reported that ligaments, once damaged, do not repair themselves without surgery. He also stated that "maybe BELLER V. IOWA STATE PENITENTIARY Page 13 eventually there would be healing occur..." The tenor of the doctor's remarks suggests that claimant's coccyx condition is not likely to change significantly in the foreseeable future and has not changed significantly from her injury onward. An appeal decision by this agency held: That a person continues to receive medical care does not indicate that the healing period continues. Medical treatment which is maintenance in nature often continues beyond that point when maximum medical recuperation has been accomplished. Medical treatment that anticipates improvement does not necessarily extend healing period particularly when the treatment does not in fact improve the condition. Derochie v. City of Sioux City, II Iowa Industrial Commissioners Report 112, 114 (1982). Healing period as used in section 85.34(l) may be characterized as that period during which a reasonable expectation of improvement of disabling condition exists. Healing period ends when maximum medical improvement is reached. When claimant's condition will not improve from the start but will be aggravated by further physical exertion, claimant is not entitled to healing period benefits as no further improvement of claimant's condition is anticipated. Armstrong Tire & Rubber v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981). Permanent means for an indefinite and undeterminable period. Wallace v. Brotherhood of Locomotive Firemen and Enginemen, 230 Iowa 1127, 1130, 300 N.W. 322, 324 (1941), citing Garen v. New England Mutual Life Insurance Company, 218 Iowa 1094, 1104, 754 N.W. 287, 292 (1934). We find that claimant's condition as it exists is a permanent condition which has not changed appreciably since at least May 13, 1985. Any significant healing occurred within the time frame Dr. Misol set forth. Claimant remained at work during that time. Hence, claimant is not entitled to a healing period award. Any permanency award runs from July 5, 1985 when claimant left work on account of her coccyx condition. We reach the permanent partial disability entitlement question. An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 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). If claimant has an impairment to the body as a whole, an BELLER V. IOWA STATE PENITENTIARY Page 14 industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disabilityO to be computed in the terms of percentages of the total physical and mental ability of a normal man." In Parr v. Nash Finch Co., (Appeal decision, October 31, 1980) the Industrial Commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden, 288 N.W.2d 181. Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden v. Big Ben Coal Co., supra. Apportionment of disability is limited to those situations where the prior injury or illness, unrelated to employment, independently produces some ascertainable portion of the ultimate industrial disability found to exist following the employment related aggravation. Varied Industries, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Claimant is 39 years old and a high school graduate. She has post-work experience as a cosmotologist, a factory worker, and a correctional officer. She appears to have been well placed vocationally as a correctional officer and motivated to return to that work. Claimant did not successfully return to work at the state penitentiary when Dr. Whitley released her for work in October 1986. Unfortunately, it is difficult to ascertain whether claimant left that work on account of her work-related coccyx condition or on account of her degenerative disc disease. Claimant testified that she could not handle the lifting and bending involved in inventorying furniture. Dr. Whitley had restricted claimant's lifting on account of her coccyx condition but not her bending. Dr. Riggins has restricted both claimant's BELLER V. IOWA STATE PENITENTIARY Page 15 bending and lifting on account ot her degenerative disc disease; hence, it appears the latter condition likely played a greater role in claimant's inability to continue her employment on her October 1986 work return. Likewise, claimant testified her employer refused her employment as a correctional officer in March 1987 as she could not return under Dr. Riggins' restrictions. Those restrictions relate to claimant's nonwork-related degenerative disc disease. Therefore, claimant has also not shown that her employer refused her employment on account of her work-related disability. While claimant appeared motivated to return to her prior work, she has not sought other training. Claimant is aware of a limited number of correctional officer positions with the employer which she could fulfill within both her work-related coccyx restrictions and her nonwork-related disc restrictions. Claimant is also aware that under the labor management agreement between her employer and its employee, it is not possible for senior employees to be bumped from those positions in favor of physically restricted employees. Hence, claimant's insistence that the employer provide her such positions is unrealistic and does not provide sufficient justification for claimant's absolute failure to seek other employment or consider retraining. Dr. Whitley opined claimant's coccyx condition precludes her from employment involving sitting. Claimant performed satisfactorily on VALPAR samples involving extensive sitting even though she used her donut, a modified sitting technique, and some standing to do so. That finding suggests that claimant is not so limited vocationally because of her coccyx condition as Ms. Jacobs opined and claimant believes. ClaimantOs functional impairment on account of her coccyx condition is quite small. An impairment was not assigned for the nonwork-related disc condition. Restrictions for that condition are far more stringent than those for the work-related coccyx condition. under Varied Industries v. Sumner, industrial disability relating to that condition as surmised from the restrictions is apportioned out and not considered in assessing claimant's work injury-related loss of earning capacity. Claimant was bright and wellspoken. Her past work history as a cosmotologist, her past hobby of furniture refinishing as well as her dress, general appearance and demeanor at hearing suggested claimant is a creative person with artistic talents. One suspects she would do well if she returns to a field, such as her prior work as a cosmotologist, where she could utilize these talents on a routine basis. Mr. Weigel has opined that if claimant were appropriately licensed she could earn earnings as a cosmotoligist near her earnings as a correctional officer. Claimant's VALPAR testing performance suggests she could work at a number of positions with some reasonable accommodation to her sitting, standing and walking restrictions. Claimant is still a relatively young worker. She is at an age where many women are only beginning financially remunerative careers after having spent extensive years working as homemakers. Claimant appears to have derived satisfaction from working. It would be a great loss to claimant personally were she to permit her work-related coccyx difficulties or her disc condition to unnecessarily preclude her from a personally and economically productive life. When all factors are considered, claimant is found to have a 25 percent loss of earning capacity. BELLER V. IOWA STATE PENITENTIARY Page 16 The parties list a section 85.27 issue. Only joint exhibit 10 contains evidence regarding outstanding medical costs. Claimant, of course, is entitled to payment of any reasonable and necessary medical expenses for treatment of her work-related coccyx condition. She is not entitled to payment of costs related to treatment of her degenerative disc disease Dr. Whitley's treatment related to the coccyx condition. Claimant is entitled to payment of her actual costs for treatment. We cannot ascertain to which condition the Ft. Madison Hospital costs after May 21, 1985 related or to which condition the "99999" relates or to which condition claimant's treatment with Dr. Rice after October 2, 1985 relates. Claimant, therefore, is not entitled to payment of her costs for those treatments. Defendants seek a credit under section 85.38(2) for both long-term disability and health insurance benefits paid claimant. The section provides: Credit for benefits paid under group plans. In the event the disabled employee shall receive any benefits, including medical, surgical or hospital benefits, under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if BELLER V. IOWA STATE PENITENTIARY Page 17 any rights of recovery existed under this chapter, chapter 85A or chapter 85B, then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments, including medical, surgical or hospital, made or to be made under this chapter, chapter 85A or chapter 85B. Such amounts so credited shall be deducted from the payments made under these chapters. Any nonoccupational plan shall be reimbursed in the amount so deducted. This section shall not apply to payments made under any group plan which would have been payable even though there was an injury under this chapter or an occupational disease under chapter 85A or an occupational hearing loss under chapter 85B. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against them by reason of having received such payments only to the extent of such credit. As regards the long-term disability benefit, no evidence was submitted indicating that claimant would not receive the benefit were she entitled to workers' compensation recovery or as to whether the long-term disability plan was contributed to wholly or partially by the employer. Defendants, of course, would be entitled to a credit if benefits would not have been paid had claimant been entitled to workers' compensation benefits to the extent of defendants' proportionate contributions to the plan, if any. The parties are encouraged to work together to resolve this issue without further agency intervention. As regards health insurance payment, the evidence demonstrates those benefits would not have been paid had claimant received an injury which arose out of and in the course of her employment. The evidence does not demonstrate that the health care plan was contributed to wholly or partially by the employer. Defendants, of course, would be entitled to a credit to the extent of defendants' proportionate contributions to the plan, if any. The parties are encouraged to work together to resolve this issue without further agency intervention. FINDINGS OF FACT THEREFORE, IT IS FOUND: Claimant fell on ice at work at the Iowa State Penitentiary on January 10, 1985. She braced her fall with her wrist but fell into a seated position. Claimant visited the penitentiary infirmary on her injury date and reported wrist complaints, but not complaints as to the rest of her body. Claimant completed an accident report for her employer on January 10, 1985 and reported a wrist injury, but no injury to BELLER V. IOWA STATE PENITENTIARY Page 18 the rest of her body. Claimant visited Dr. Whitley for treatment of her wrist injury from January 10, 1985 through early February 1985, but did not report or receive treatment for other than upper extremity complaints. Claimant continued to work following her injury. Claimant saw Dr. Whitley on May 13, 1985 and complained of low back pain intermittently since her January 10, 1985 injury which during the last two or three weeks had localized and gotten worse. Claimant had acute coccyxitis. Claimant had carried three pregnancies to term without significant "back" difficulty prior to her injury. Claimant had worked full time and engaged in numerous physically demanding household activities prior to her injury. Claimant had difficulty with those activities since her injury. Claimant's coccyx condition is related to her work injury and is not a congenital condition. Claimant has gained thirty pounds since her injury. Claimant left work July 5, 1985 for reasons related to her coccyx condition. Claimant returned to work on October 3, 1986 and left work again in December 1985 because she believed she could not handle the lifting and bending involved. Claimant saw Dr. Riggins December 17, 1986. Dr. Riggins diagnosed a degenerative disc condition. Dr. Misol examined claimant on June 6, 1986 and found only minimal signs of degenerative disc problems. Claimant's degenerative disc disease is not a condition resulting from her injury. Claimant's coccyx condition cannot be surgically treated as it involves ligament and tissue damage near the sacral plexus. Ligament damage does not heal unless surgically repaired. Claimant's coccyx condition remains substantially as it was on May 13, 1985. Claimant is 39 years old. Claimant is a high school graduate. BELLER V. IOWA STATE PENITENTIARY Page 19 Claimant has prior work experience as a correctional officer, a factory worker, and a cosmotologist. Claimant is licensed as a cosmotologist in Kentucky, but not in Iowa. Claimant was motivated to return to work as a correctional officer, but not to seek other employment or retraining. Claimant's employer's labor management agreement precludes bumping senior employees from positions in order to get the position for a physically handicapped employee. Claimant has restrictions on sitting, standing, walking, and lifting related to her coccyx condition. Claimant has more stringent physical restrictions related to her nonwork-related back conditions. Claimant's inability to return to work in March 1987 related to the back conditions and to Dr. Riggins' restrictions for that condition. Claimant has a minimal functional impairment. Claimant is creative and artistic. Claimant performed satisfactorily on VALPAR samples involving extensive sitting. Claimant could perform work with appropriate accommodations of her coccyx condition. Claimant has a loss of earning capacity of 25 percent. Claimant received long-term disability benefits following her injury. Claimant received Blue Cross/Blue Shield health care benefits for medical care following her injury. Claimant would not have received such benefits if care had been provided for an injury which arose out of and in the course of her employment. It is not determinable whether claimant's employer contributed wholly or partially to either the long-term disability or the Blue Cross/Blue Shield benefit plan. Dr. Whitley provided claimant medical care related to her coccyx condition. Dr. Rice provided claimant care related to her coccyx condition on or before October 2, 1985. Fort Madison Hospital costs on or before May 21, 1985 related to claimant's coccyx condition. CONCLUSIONS OF LAW BELLER V. IOWA STATE PENITENTIARY Page 20 THEREFORE, IT IS CONCLUDED: Claimant has established an injury on January 10, 1985 which arose out of and in the course of her employment. Claimant has established a causal relationship between the January 10, 1985 injury and her wrist and coccyx condition, but not between the injury and her degenerative disc disease. Claimant is entitled to permanent partial disability resulting from her injury of January 10, 1985 of 25 percent (25%). Claimant is entitled to payment of her actual costs for medical care with Dr. Whitley and with Dr. Rice on or before October 2, 1985 and with the Fort Madison Hospital on or before May 21, 1985. Defendants have not established an entitlement to a credit under section 85.38(2) under this record. The parties are encouraged to resolve the section 85.38(2) issue without further intervention of the agency. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for one hundred twenty-five (125) weeks at a rate of two hundred fifteen and 23/100 dollars ($215.23) with those benefits to commence on July 5, 1985. Defendants pay claimant's actual medical costs as outlined in the above conclusions of law. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30. Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendants file claim activity reports as required by the agency. Signed and filed this 27th day of May, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James P. Hoffman Attorney at Law BELLER V. IOWA STATE PENITENTIARY Page 21 P.O. Box 1066 Middle Road Keokuk, Iowa 52632-1066 Mr. Charles S. Lavorato Assistant Attorney General Hoover Building LOCAL 1100; 1802; 1803; 2500 Filed 5-27-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAURETTA BELLER, Claimant, File No. 799401 VS. IOWA STATE PENITENTIARY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1100; 1802; 1803; 2500 Claimant's tailbone injury found to have arisen out of and in the course of her employment. Functional impairment was minimal, but claimant's restrictions on sitting and standing were found to result in loss of earning capacity of 25 percent. No healing period benefits awarded where claimant's condition had not improved significantly since original injury and was only likely to minimally improve at best. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAURETTA BELLER, File No. 799401 Claimant, R E V I E W - vs. R E O P E N I N G IOWA STATE PENITENTIARY, D E C I S I O N Employer, F I L E D STATE OF IOWA, JAN 23 1990 Insurance Carrier, Defendants. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in review-reopening brought by the Iowa State Penitentiary and its insurer the state of Iowa against Lauretta Beller. The case was heard and fully submitted at Burlington, Iowa on July 11, 1989. The record in the proceeding consists of testimony from Lauretta Beller, claimant's exhibits 3, 4 and 5, and defendants' exhibits 1 and 2. ISSUES The only issue presented by the parties for determination is whether the credit allowed to the employer under the provisions of Iowa Code section 85.38(2) for the group long-term disability benefits is to be based upon the total number of dollars paid in long-term disability benefits or whether the amount of the credit is to be based upon the net amount received by the claimant after payment of income taxes chargeable to the benefits. SUMMARY OF EVIDENCE In an arbitration decision filed May 27, 1987, the claimant was awarded 125 weeks of permanent partial disability compensation payable at the rate of $215.23 per week commencing July 5, 1985. The issue of defendants' entitlement to credit under Code section 85.38(2) was identified as an issue to be determined by that hearing. The review-reopening decision, however, stated, "Defendants have not established an entitlement to a credit under section 85.38(2) under this record." It went on, however, to encourage the parties to resolve the issue without further intervention of the agency. Claimant has stipulated that credit is due. No defense in the nature of preclusion or res judicata was urged based upon the fact that the entitlement had been raised as an issue at the time the case was heard on March 17, 1987 and that the arbitration decision entered May 27, 1987 specifically found that the employer had not shown an entitlement to the credit. According to exhibit 2, claimant was paid long-term disability benefits from November 9, 1985 through May 14, 1987 at the rate of $881.92 per month, but that the monthly amount was reduced for wages which claimant had earned from part-time work subsequent to October 3, 1986. The record of the case does not contain a week-by-week or month-by-month showing of how much was paid at any particular time. The total paid was $14,836.76. Exhibit 4 shows that claimant was paid $10,404.40 in 1986. Exhibit 5 shows that she was paid $4,432.36 in 1987. Exhibits 4 and 5 show that claimant's husband earned more than $20,200 in each of years 1986 and 1987. Federal income tax was withheld from claimant's long-term disability payments in the amount of $266.00 for 1986 and $270.00 for 1987. Claimant's evidence shows that if the disability income payments had been treated as nontaxable workers' compensation, her federal income tax liability for calendar years 1986 and 1987 would have been reduced by $2,914.00 and that her state income tax liability for those years would have been reduced by $677.00 (exhibit 3). APPLICABLE LAW AND ANALYSIS Claimant contends that since workers' compensation weekly benefits are not taxed by either the federal or state government, the credit should be limited to the after-tax dollars which claimant actually receives, rather than the pre-tax dollar amount. Claimant contends that where the state takes part of the benefits in state income taxes, the situation is particularly aggravated. The employer contends that the statute, section 85.38(2), provides a direct dollar-for-dollar credit and that if some type of tax offset was intended, it would have been provided in the statute. Reference was made to Chapter 668 of The Code of Iowa. Chapter 668 is not applicable to this matter because it deals with tort liability and comparative fault. It deals only with causes of action based upon "fault." Section 668.14 provides for consideration of some collateral source payments when damages are awarded, but that section also allows consideration of the cost of procuring those collateral source payments. The Iowa Supreme Court has ruled that the principle of allowing damages is to provide compensation. The ultimate purpose is to place the injured party in as favorable a position as though no wrong had been committed. Dealers Hobby, Inc. v. Marie Ann Linn Realty Co., 255 N.W.2d 131 (Iowa 1977); Adams v. Deur, 173 N.W.2d 100 (Iowa 1969). There are a number of rules of construction which must be applied. The ultimate goal is to determine and effectuate the intent of the legislature. Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 532 (Iowa 1981); American Home Prods. Corp. v. Iowa State Board of Tax Review, 302 N.W.2d 140, 142 (Iowa 1981). One must look to the object to be accomplished, the mischief to be remedied, or the purpose to be served, and place on the statute a reasonable or liberal construction which will best effect, rather than defeat, the legislature's purpose. City of Mason City v. Public Employment Relations Board, 316 N.W.2d 851, 854 (Iowa 1982); Peffers v. City of Des Moines, 299 N.W.2d 675, 678 (Iowa 1980). Strained, impractical or absurd results are to be avoided in favor of a sensible, logical construction. Ida County Courier and The Reminder v. Attorney General, 316 N.W.2d 846, 851 (Iowa 1982); Iowa Beef Processors Inc., 312 N.W.2d at 532. All parts of the statute are to be considered together, without attributing undue importance to any single or isolated portion. Iowa Beef Processors, Inc., supra; Peffers, supra. The spirit of the statute must be considered along with its words, Hansen v. State, 298 N.W.2d 263, 265 (Iowa 1980), and the manifest intent of the legislature will prevail over the literal import of the words used. Iowa Beef Processors, Inc., supra. Legislation should be given a rational, workable meaning. Iowa Dep't of Transp. v. Nebraska-Iowa Supply Co., 272 N.W.2d 61 11 (Iowa 1978). The legislature is presumed to not intend to overturn long established principles of law unless its intention to do so is clearly expressed, necessarily implied or no other construction can be reasonably made. Wilson v. Iowa City, 165 N.W.2d 813 (Iowa 1969). The policy is to liberally construe workers' compensation statutes in favor of the worker. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980). Its beneficent purpose is not to be defeated by reading something into it that is not there. Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979). Nevertheless, the requirements of the statute are controlling. Halstead v. Johnson's Texaco, 264 N.W.2d 757, 759 (Iowa 1978). It is generally presumed that statutory words are used in their ordinary and usual sense with the meaning commonly attributed to them. American Home Prods. Corp., supra. There are no jokers in workers' compensation law. Comingore v. Shenandoah Art. Ice, Etc. Co., 208 Iowa 430, 226 N.W. 124 (1929). Code section 85.38 does not contain any express reference to the impact of taxes. It is also noted, however, that section 85.37 provides in part, ". . . The weekly benefit amount payable to any employee for any one week shall be upon the basis of eighty percent of the employee's weekly spendable earnings. . . ." Sections 85.61(10), (11) and (12) clearly show that the intend of the legislature was to provide the injured worker with a weekly amount of money which is 80 percent of what the employee would be receiving if the employee were working. The weekly benefit rate is determined on the basis of after-tax income. It is general knowledge that workers' compensation benefits are not subjected to state or federal income taxation. If it were expected that the employee were to pay income taxes on workers' compensation benefits, it would be expected that the statutory formula for determining the weekly benefit amount would not contain a reduction for income taxes. It would be quite illogical to have a system where weekly earnings were reduced for income taxes in order to provide a weekly benefit amount which is itself then reduced again for income taxes. It would in effect tax the same wages, or wage replacement, twice. It is therefore determined by the undersigned that the effect of income taxes was within the contemplation of the legislature when the statutes which fix the weekly compensation rate were enacted. If the legislature intended to provide weekly benefits as a means of support for injured workers and fixed that level of support at 80 percent of the customary spendable earnings, it would be inconsistent with that intent to provide a lesser amount when credit is granted under Iowa Code section 85.38(2) to satisfy all or part of the weekly compensation payment obligation. A strict, literal reading of section 85.38(2) would provide that a credit is allowed only when the benefits are paid to the employee, rather than to any other payee. The subsection reads in part, "In the event the disabled employee shall receive any benefits, including medical, surgical or hospital benefits, under any group plan . . . then such amounts so paid to said employee from any such group plan shall be credited . . . ." [Emphasis added.] If interpreted literally, there would be no credit for medical expenses paid directly to the medical service provider by a group plan. There would be no credit for any amounts that were withheld for income tax purposes and paid to the taxing body, even if the employee elected to have the entire amount withheld. The undersigned does not, however, construe the statute in that manner. The statute should be construed in such a manner as to provide the injured employee with what the employee would have received if the employer had complied with the workers, compensation law. If the employer had complied, the claimant would have received weekly compensation at the rate of $215.23 per week. She would have had all of that weekly amount available to spend in order to support herself since workers' compensation benefits are not subject to federal or state taxation. If a full, dollar-for-dollar for credit is authorized, then the employee receives less than the statutorily provided $215.23 per week because the long-term disability benefits are subject to federal and state taxation. It should be noted that the tax treatment of workers' compensation benefits and group long-term disability income benefits is well known. This case does not involve novel or complicated tax law issues. claimant's spouse's income is sufficient to eliminate any disability income exclusion for state income taxes. The question which must then be determined is whether any adverse economic impact which results from the employer's decision to pay group benefits, rather than workers' compensation, should be borne by the employer who made the mistake or by the employee who was powerless to prevent the employer from mishandling the case. The undersigned is unable to justify any construction of the statute which would in effect penalize the employee for the employer's mistake. It is therefore determined that when credit is provided for disability income payments made under the provisions of Iowa Code section 85.38(2), the amount of that credit to which the employer is entitled is the net amount which the employee receives after payment of all applicable taxes. In this case, exhibits 4 and 5 show that the employer reported the payments made to the claimant as wages, tips or other compensation in the form of third party disability [sic] payments as shown on the W-2 forms. The employer has not issued corrected or amended W-2 statements in order to permit the employee to treat the payments as nontaxable workers' compensation benefits. If the employer were to issue such amended tax documents within the amount of time that the claimant would be permitted to amend her original income tax returns, then there would be no adverse impact to be suffered by either the employer or the employee. Both the employer and employee would be restored to the same position as each would hold if the employer had not made a mistake when it decided to deny the payment of workers' compensation benefits. The employer, presumably, has known of its mistake since the arbitration decision was entered on May 27, 1987, but it has apparently not taken action to amend the W-2 forms issued to claimant and the employment tax returns filed with the federal government and also with the Iowa Department of Revenue. As before, the injured employee should not be placed in a less favorable position as a result of an employer's failure to fully comply with the workers' compensation laws. If a party must be disadvantaged by the employer's error, it should be the employer, not the employee. The matter of determining the amount of credit to be allowed in this case is not easily achieved. Since this is the disability income program which exists in accordance with Iowa Code section 79.20, the undersigned presumes that the disability program is fully consistent with the provisions of Iowa Code section 79.20, rather than being in violation of the law. The Code provides that the monthly disability benefits are to be reduced by workers' compensation when applicable, but subsection 3 also provides for a minimum benefit of $50 per month. That provision can be construed to provide for payment of not less than $50 per month regardless of any workers' compensation weekly benefit payments. The monthly long-term disability benefit of $881.92 is equivalent to a weekly payment of $203.52, an amount which is less than the workers' compensation entitlement. When income taxes are considered as shown in exhibit 3, the net amount which the claimant actually received from the long-term disability benefits (after taxes) was $7,710.00. For 1987, the amount received was $3,535.00. Therefore, of the total $14,836.76 which was paid in long-term disability benefits, the employer is entitled to a credit in the amount of $11,245.00. It is determined that where it is necessary to make a determination of the amount of the credit, such must be done on an individual case-by-case basis in which the actual tax effect is specifically computed. That computation is a proper subject of expert testimony in the nature of exhibit 3 which was received into evidence in this case. An attempt was made to arrive at a credit computation using the workers' compensation benefit schedule. The result, however, deviated greatly from the actual amounts computed by certified public accountant John Russell. There are two major reasons why the benefit schedule could not be used as a basis for computing the correct amount of credit. First, the benefit schedule includes a deduction for FICA taxes. Long-term disability income payments are not subject to FICA taxes since they are not considered to be earned income. Second, the weekly rate of compensation determined under the benefit schedule is based upon the employee's actual earnings. It is not affected by income from other sources or income from a spouse. The marginal income tax rate in a case such as this where both spouses are gainfully employed is probably considerably higher than the effective marginal income tax rate that is used when determining the rate of compensation under the benefit schedule. it is therefore determined that actual computation provides a much better method of determining the proper amount of credit rather than to establish a standing rule or formula to be applied in connection with the benefit schedule. The closest standard formula which the undersigned has been able to develop would be to use the benefit schedule to apply the long-term disability benefit to the benefit schedule as if it were wages and obtain a weekly compensation benefit amount. Since the schedule provides for only 80 percent of the spendable earnings, the resulting figure should then be multiplied by a factor of 1.25 in order to restore it to 100 percent of spendable earnings which were provided by the long-term disability income payments. In this case, the file indicates that claimant is apparently married with five exemptions and gross weekly wages of $326.00 based upon her weekly compensation rate of $215.23. If the weekly equivalent of the monthly long-term disability benefits, namely $203.52, is treated as gross weekly wages and applied to the schedule, the result is $142.60 per week. Multiplying that result by the factor of 1.25 provides for a credit amount of $178.25 per week. If the total amount of the long-term disability payments is converted into a weekly equivalent, it provides 72.9 weeks. Seventy-two point nine weeks at $178.25 per week would provide a credit in the amount of $12,994.42, an amount which is nearly $1,750.00 higher than the credit which is allowable if a precise computation is made. A reading of Code section 79.20 could be interpreted to provide a minimum long-term disability benefit of $50 per month under section 79.20(3). That $50 benefit would, of course, be subject to taxation if it is paid in addition to workers' compensation. The statute does not appear to offset, credit or prohibit payment of that $50 amount due to workers' compensation benefits. Neither of the parties, however, raised any issue with regard to that $50 minimum. The issue as presented by the parties to the undersigned was simply to determine whether the credit is based upon the full amount of the long-term disability payments or the net amount remaining after taxes. The undersigned has concluded that it is based upon the net amount remaining after taxes and has further determined that the amount of credit to which the employer is entitled in this case is the sum of $11,245.00. FINDINGS OF FACT 1. During calendar years 1986 and 1987, Lauretta Beller was paid $14,836.76 in disability income payments which were paid by the Principal Financial Group, formerly known as Bankers Life Insurance, under a group benefit program maintained by the state of Iowa as authorized by Iowa Code section 79.20. 2. The long-term disability benefits were subject to federal and state income taxes which resulted in claimant receiving a net amount of only $11,245.00 after payment of the taxes chargeable to those benefits which totalled $3,591.00. 3. The computations made by John Russell, certified public accountant, are correct and accurate. 4. The decision to pay group disability benefits rather than workers' compensation benefits was made by the employer and the claimant had no control over what decision the employer made. 5. The employer's decision to pay long-term disability benefits rather than workers' compensation was erroneous as established by the arbitration decision filed May 27, 1987. 6. The employer did not issue amended W-2 form wage and tax statements for calendar years 1986 and 1987, after the arbitration decision entered May 27, 1987 established that the employer owed claimant workers' compensation benefits rather than group long-term disability benefits, in order to change the tax status of the payments from taxable long-term group disability benefits to nontaxable workers' compensation benefits. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The credit provided by Code section 85.38(2) for group disability income payments is to be determined in a manner which provides the injured employee with the same amount of actual spendable benefits as the employee would have received if workers' compensation weekly benefits had been paid in the proper amount at the proper time. The employee should not be adversely affected economically as a result of an employer's incorrect decision to pay a taxable disability income payment rather than workers' compensation weekly benefits. 3. When it is necessary to make a computation of the amount of credit to be allowed, that computation is to be made on a case-by-case basis. 4. Expert testimony is appropriate to make computations to determine the amounts which will place the employee in the same position as the employee would have occupied if nontaxable workers' compensation payments had been paid rather than taxable group disability income payments. 5. In this case, the employer is entitled to a credit in the amount of $11,245.00 under the provisions of Iowa Code section 85.38(2) as a result of the disability income payments which were paid in the amount of $14,836.76. ORDER IT IS THEREFORE ORDERED that on account of the disability income payments paid during calendar years 1986 and 1987, the employer, Iowa State Penitentiary and state of Iowa, is entitled to a credit in the amount of eleven thousand two hundred forty-five and 00/100 dollars ($11,245.00) against the award of one hundred twenty-five (125) weeks of permanent partial disability compensation which was made in the arbitration decision filed herein on May 27, 1987. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that this file be retained in an active status to be scheduled for prehearing conference in accordance with the prehearing order (B) filed November 16, 1989. Signed and filed this 23rd day of January, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. Charles S. Lavorato Assistant Attorney General Tort Claim's Division Hoover State Office Building Des Moines, Iowa 50319 1701, 3700 Filed January 23, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAURETTA BELLER, Claimant, File No. 799401 vs. R E V I E W - IOWA STATE PENITENTIARY, R E 0 P E N I N G Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1701 It was held that the amount of credit allowed to an employer for disability income payments made under a group plan is the net amount which the employee realizes after any income taxes attributable to the group disability income payments are deducted from the total amount of payments actually paid. The amount of taxes is determined by computing the amount by which the employee's income taxes were increased due to receipt of the group disability income payments in comparison to what the total income tax liability would be if the payments had been paid in the form of nontaxable workers' compensation benefits. 3700 The amount of taxes attributable to group disability income payments is a proper subject of expert testimony from a certified public accountant, attorney or other income tax preparer who demonstrates what portion of the total disability income payments are consumed by the income taxes which are attributed to those payments.