1804 - 4100 Filed September 20, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER GENNY E. MCCLELLAN, Claimant, File No. 802020 vs. MIDWEST BISCUIT COMPANY, A P P E A L Employer, D E C I S I 0 N and WAUSAU INSURANCE COMPANY, Insurance Carrier, Defendants. 1804, 4100 Claimant, age 59, who initially showed good motivation to return to her job but who later appeared to have sought work only at the urging of her attorney and just prior to the hearing found not to be odd lot, but nevertheless was found to be permanently and totally disabled where her restrictions of not working more than 4 hours per day and likelihood she would be frequently absent from work due to back pain made her unemployable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GENNY E. McCLELLAN, Claimant, FILE NO. 802020 VS. A R B I T R A T I 0 N MIDWEST BISCUIT COMPANY, D E C I S I O N Employer, and WAUSAU INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Genny E. McClellan, claimant, against Midwest Biscuit Company, employer (hereinafter referred to as Midwest), and Wausau Insurance Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on August 8, 1985. On March 4, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Richard McClellan; Jeannette Mullahy; and, Clark Williams. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On August 8, 1985, claimant received an injury arising out of and in the course of her employment with Midwest; 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $127.83 per week; 3. Claimant is not seeking additional temporary total disability or healing period benefits in this proceeding; 4. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole; and, McCLELLAN V. MIDWEST BISCUIT COMPANY Page 2 5. If permanent partial disability benefits are awarded herein, they shall begin as of February 28, 1985. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; and, II. The extent of claimant's entitlement to weekly benefits for permanent disability. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant was born February 24, 1929 and is presently 59 years of age. Claimant weighs 185 pounds and is five foot two inches tall. Claimant has worked outside the home during much of the marriage. She held positions as a production worker, waitress, and clerk. Each of these jobs required standing, lifting, and bending and paid a minimum wage or slightly higher. Claimant testified that she received no special job skills or training on any one of these jobs. Her formal education is limited to high school. She has no college, vocational training, or post high school academic training. Recent vocational testing done by G. Brian Paprocki, a vocational expert retained by claimant, indicated substantial deficiency in claimant's math skills. Claimant said that she was first employed at Midwest Biscuit of Burlington, Iowa in 1979. She worked on the production line making and packaging cookies and crackers until late 1980 when she moved with her family to Colorado. While in Colorado claimant said that she worked at a production job. In March, 1981, claimant moved back to Burlington and resumed work at Midwest Biscuit in April. Her employment continued at Midwest Biscuit through August 8, 1985, the date of her injury. On August 8, 1985, near the end of her regular eight hour shift, claimant testified that she was bending over to pick up a can of crackers. The can was located close to the floor and weighed between 10 and 20 pounds. She explained that as she lifted the can, she felt pain in her low back or she felt something give way. She said that she looked for the foreman to report the injury but could not locate him. Claimant stated that she did not pursue him at the time because she did not think then that the injury was likely to be serious. Claimant testified McCLELLAN V. MIDWEST BISCUIT COMPANY Page 3 that when she awoke the following day, she was in terrible pain and could not get out of bed. Claimant then reported her injury to her employer and was referred to Gordon Baustian, M.D. She saw Dr. Baustian the first Monday following her injury. Dr. Baustian later referred claimant to Koert Smith, M.D., an orthopedic surgeon. Dr. Smith has been claimant's primary treating physician since that time. Dr. Baustian saw claimant on August 12, 1985. He concluded she suffered "acute back syndrome" due to the injury on August 8, 1985. Dr. Baustian prescribed Indocin, an anti-inflammatory drug, and Tylenol for pain. He also referred claimant to physical therapy at Burlington Medical Center. The physical therapy was discontinued because the therapist feared that he was making the back problem worse. Dr. Baustian's examination on August 12 1985, showed straight leg raising to 30 degrees on the right, 45 degrees on the left. There was some decreased pin prick and vibratory sensation of the right lower extremity. There was noted tenderness in the low lumbosacral junction and along the S-1 joint on the right. Further examination on August 26, 1985, by Dr. Baustian indicated that claimant complained of being worse physically. Dr. Baustian switched her medications and kept her off work until September 19, 1985. Then, on September 4, 1985, Dr. Baustian reported that claimant was somewhat better and that the medication switch helped but her back symptoms remained unchanged. Claimant was unable to straight leg raise more than 45 degrees bilaterally. On September 12, 1985, claimant saw the doctor and insisted she wanted to return to work. Although the doctor has some reservations, he released claimant to work. Claimant then returned to work on September 16, 1985. Upon her return to work, claimant said that she could not handle the work and worked only a short time before her back pain forced her to seek medical help again. She left work the morning of the 17th due to increasing pain in her low back and into the right S-1 joint area. Claimant was then referred to Dr. Koert Smith, an orthopedic surgeon. Dr. Koert Smith examined claimant on September 19, 1985. He found limited range of motion in the lumbar spine. He found tenderness at L-5 and S-1 and marked tenderness over the right sacroiliac joint and proximal gluteal area. Dr. Smith gave claimant an injection of Marcaine and Celestone and ordered her to remain off work. Dr. Smith saw claimant again on September 25, 1985. At that time she reported continued pain in the back but not in the leg. She indicated she had been attempting to take short walks each day. Straight leg raising at 80 degrees on the right side caused pain behind the knee. The doctor observed a slight sensory deficit on the right side. Claimant was again advised to stay McCLELLAN V. MIDWEST BISCUIT COMPANY Page 4 off work. On October 7, 1985, Dr. Smith examined claimant and found considerable tenderness over the S-1 joint on the right side. Claimant reported continuing to take Tylenol No. 3 (pain medication) on an intermittent basis. Dr. Smith ordered Motrin as an anti-inflammatory. Claimant was seen again on October 23, 1985, for pain in the right S-1 joint reaching down into the right leg. There was pain on the right side and straight leg raising at 90 degrees revealed tenderness on the right S-1 joint area. Dr. Smith elected to reinject the S-1 joint with 4cc of Marcaine and 2cc of Celestone. This was the second such injection. Claimant was seen again on November 7, 1985 and reported slow improvement. She indicated she was having continued trouble with any type of heavy housework and was unable to vacuum. She stated that even bed making tended to bother her back. She expressed difficulty with sitting. Physical examination revealed tenderness in the right S-1 joint area. The doctor insisted she remain off work at that time. On November 14, 1985, claimant called Dr. Smith and requested a return to work slip. The doctor authorized the same. Claimant returned to work on November 18, 1985 and worked until November 25, 1985. On November 25, claimant stated that she was only able to work an hour or so when she noted a significant recurrence of pain in her right leg. This pain had been progressing over the week and she was working to the point that she simply could not tolerate the pain and stopped working. Dr. Smith reported on December 5, 1985, upon examination, that claimant continued to have pain in the back, radiating down the leg. Intermittently, he reported that she had sharp pain in the right S-1 joint area as well as down into the hip. Claimant also reported numbness in the lateral aspect of the leg. Upon physical examination on December 5, 1985, Dr. Smith found absent ankle jerks. The doctor noted claimant showed more signs of S-1 and nerve root compression on the right side. At that time, Dr. Smith was considering epidural steroid injection at the L5/S-1 level based on absent ankle jerks. Claimant was seen again December 12, 1965, and ankle jerks were again absent. Straight leg raising at about 50 to 60 degrees caused pain in the back. She informed the doctor she was only able to do very light housework without pain. On December 23, 1985, claimant called the doctor to arrange the epidural steroid injection. The injection was completed on December 24, 1985, at Burlington Medical Center. Dr. Smith next saw claimant on January 3, 1986, approximately 10 days after the steroid injection. Claimant informed the doctor that her leg pain was better for four or five hours after the injection but soon thereafter the symptoms returned and she felt her back was worse after the injection. She indicated difficulty with sleeping and stated she had given up playing bingo since she was not able to sit. She told the McCLELLAN V. MIDWEST BISCUIT COMPANY Page 5 doctor she and her husband had moved because she could not go up and down stairs. She expressed concern that her condition prevented her from going to work. At this time, the doctor diagnosed her as suffering from neurogenic low back pain disc injury with periodic acute episodes with persistent body lists and sciatic pain. In early February claimant had an acute episode of back pain brought on when she bent over to pick up an object and had sudden severe pain in her back. She stayed in bed over the weekend and called the doctor the following day. When she saw the doctor on February 14, 1986, she indicated she was beginning to slowly get better and was continuing to take her Motrin. She told the doctor she was treating her acute episodes with moist heat. She continued to complain of pain in her back, right leg, and calf. Physical examination on February 14, 1986, revealed range of motion limitations. The doctor advised claimant to continue with her treatment of staying down as much as possible, applying moist heat and continuing with Motrin and Tylenol No. 3. Claimant returned for further follow up of her back and right leg pain on February 28, 1986. She stated she was feeling better and had been up a little more. She continued to complain of rather constant pain, sharp pain if she twisted wrong. She continued on Motrin and Tylenol. Physical examination revealed range of motion limitation. The doctor encouraged her to continue with Motrin and to continue to try to slowly be up as much as she could tolerate. When claimant next returned to the doctor on March 20, 1986, she advised that she had experienced an increase in pain. She stated that she was able to stand only about ten minutes at a time doing activities such as washing dishes. She described the pain as being in her back and in the lateral aspect of the right calf. She denied any numbness. Physical examination again revealed absent ankle jerks. Range of motion was limited. A second epidural steroid injection was discussed with claimant but was not prescribed by the doctor at that time. On April 8, 1986, claimant had another acute episode. She was reaching across the table to pick up something and noted the sudden onset of pain in her mid back, a little bit to the right side. She stayed down at home, applied moist heat, took Motrin and Tylenol and on April 22, 1986, when she saw the doctor and reported this to him, she was just getting over that episode. Physical examination revealed once again absent ankle jerks. The doctor noted a subjective sensory deficit on the right calf. The doctor advised her to continue trying to slowly be up more, continue Motrin and Tylenol and return in six weeks. Claimant returned again on June 3, 1986 and indicated she was about the same. She complained of increasing pain in her back due to the car ride made to Muscatine to see Dr. Kessler, the consulting physician for the workers' compensation insurance carrier. Ankle jerks were again absent. The doctor also noted sensory deficit on the right side. McCLELLAN V. MIDWEST BISCUIT COMPANY Page 6 On July 14, 1986, claimant again returned to the doctor. She complained of a worsening of her condition. She complained of pain continuously in her low back with acute intermittent episodes. She complained of an acute episode on June 25th and another on July lst and explained those to the doctor. She also discussed with the doctor her restrictions at home including inability to do anything other than light housework, inability to vacuum, inability to do the laundry, inability to make the bed, inability to do grocery shopping, and inability to walk more than a block at a time. On July 14, 1986, the doctor found limited range of motion and also absent ankle jerks. At that time, the doctor opined that she suffered from right S-1 radiculopathy. He stated claimant could not tolerate working eight hours a day even with minimal lifting. he felt that she simply could not tolerate standing on her feet that long. Dr. Smith also on July 14, 1984, estimated claimant's functional capacities over an eight hour period would permit her to sit for intervals as long as two hours as well as stand for two hours or walk for two hours at a time with some rest in between. She would be able to lift ten pounds occasionally, carry ten pounds occasionally, as well as squat and climb occasionally and she could frequently reach above shoulder level and would have no trouble in simple grasping, pushing, pulling or performing fine manipulations. She could also use her feet for McCLELLAN V. MIDWEST BISCUIT COMPANY Page 7 repetitive movements as in operating foot controls with only mild restrictions in the operation of automotive equipment or being around moving machinery. In Dr. Smith's letter of August 25, 1986, he stated: ... As indicated in the letter, I did last evaluate Mrs. McClellan on July 14, 1986. At that time, although she had intermittent good and bad days with intermittent acute episodes, her condition overall has remained stable since January of 1986. At that time, I indicated that I felt she had a 5% whole man impairment and I feel that rating continues to apply today. As indicated in your letter, she did have a CT scan that was normal, but continues to have some symptoms suggestive of a herniated disc. Occasionally a myelogram can detect a herniated disc that is not apparent on a CT scan, but because of her intermittent and at this time tolerable symptoms, no further studies are planned. ... At this point with the degree of her symptoms and her age, it is her choice to not work as opposed to proceed with additional testing and potential surgery and I certainly can not [sic] disagree with that decision. The doctor then concluded that settlement of the case at this time would be the most appropriate course for all parties. With respect to the duration of claimant's condition, Dr. Smith stated in his report of March 10, 1986: ...I would hope that gradually in the future, that her condition would improve and that she ultimately would be able to certainly return to four hours a day and hopefully back to her regular job.... He also indicated that the x-rays indicated minimal evidence of degenerative disease and degenerative arthritis. The doctor also indicated in his deposition that claimant's obesity causes weakness and loss of tone of the muscles of her back and that extra weight is transmitted through the spine and certainly into the low back and puts additional stress or strain on the low back area. He also conceded that people that are obese are likely to have complaints similar to claimant's, even though sometimes seen in people who are not obese, and even in the absence of trauma. The doctor further concluded in the deposition: A. In July of O86, she did report, between the time I evaluated her in June of O86 and July of O86, two episodes where she had had acute episodes. During those episodes, she indicated she wasn't doing anything particularly heavy; simply twisted wrong and bad the onset of sudden, severe pain. McCLELLAN V. MIDWEST BISCUIT COMPANY Page 8 Claimant testified that she has not returned to Dr. Smith since July of 1986. Claimant states that her back condition is "about the same" since the date of injury and that she has pain all of the time but it becomes severe during periodic episodes and a list of these episodes was submitted into evidence. Despite these problems, she explained that she has not returned to Dr. Smith because she is doing simply what Dr. Smith tells her to do when pain episodes occur. on cross-examination claimant admitted that she became upset with Dr. Smith due to his assessment that she is obese. Claimant denies any prior back problems and only admits to occasional backaches before the work injury in this case. In May, 1986, claimant was evaluated by Patrick Kessler, M.D., another orthopedic surgeon retained by defendants. In his report of June 26, 1986, Dr. Kessler stated: I feel Ms. McClellan is suffering from a chronic, fairly severe low back strain with some chronic degenerative changes, but no evidence of significant radiculopathy or disc disease. She was somewhat difficult to evaluate because of her gross inconsistencies, somewhat in her history but primary in her exam. He further concluded that he felt she would be able to perform the occupation in which she had been engaged and had reached maximum improvement with no more than a 5 percent permanent partial impairment from the chronic pain and decreased motion. In Dr. Kessler's return to work evaluation, there was no restrictions with respect to either sitting or standing for a period of six to eight hours, except for alternating the two positions occasionally. There were no restrictions with respect to repetitive movement and the only weight restriction was over 20 pounds. Claimant testified that she has not been employed since her last day at Midwest Biscuit. She states that she wants to work and does not want to "sit around." However, she does not believe that she can perform any meaningful job and Dr. Smith agrees with this attitude. Claimant states that she is registered with Job Service of Iowa and periodically checks want ads. She has applied for a job at Walgreen's. None of her efforts to date have proven successful. Evidence was submitted from two vocational rehabilitation consultants. Claimant retained G. Brian Paprocki. From a telephone interview and educational testing Paprocki opines that claimant is not employable. His assessment of claimant's industrial disability was excluded at hearing as not within his expertise as a vocational consultant. Paprocki points to claimant's age, lack of educational skills, especially in math and claimant's extensive disability as unsurmountable barriers to employment. He notes that Dr. Smith has indicated that claimant can only work less than four hours per day and then in only certain physical positions. He also felt that period absences from work during claimant's frequent flare-ups of back problems also restricts her employability. McCLELLAN V. MIDWEST BISCUIT COMPANY Page 9 Clark Williams was retained by defendants. Williams stated at hearing that suitable employment is available in the area of claimant's residence with restrictions imposed by physicians. He then lists various jobs in the Dictionary of Occupational Titles contained in Job Services' job listing in the Burlington area. He also described various ads in the local newspapers for certain types of jobs he felt claimant could perform. In arriving at this list, Williams states that he formulated a work capabilities analysis from the restrictive views of Dr. Smith and the more liberal views of Dr. Kessler. Williams did not contact any potential employer to determine claimant's physical ability to perform any of the positions nor did he refer any job leads to claimant. Williams states that placement was not his job. He perceived his job as only providing assistance to persons seeking employment. Claimant's appearance and demeanor at the hearing and that of her husband indicated that they were testifying in a candid and truthful manner. APPLICABLE LAW AND ANALYSIS 1. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. however, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co.,288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion or experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a McCLELLAN V. MIDWEST BISCUIT COMPANY Page 10 significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, the evidence established that claimant has suffered a permanent impairment as a result of the work injury. Claimant's testimony that she had no chronic back problems before August 8, 1985, is uncontroverted and claimant is found to be credible. Both orthopedic surgeons rendering opinions in this case indicate that claimant has at least a five percent permanent partial impairment to the body as a whole. Dr. Smith's causal connection views are uncontroverted as Dr. Kessler did not specifically render a causal connection opinion. To the extent that Dr. Kessler's views are not favorable to claimant the views of Dr. Smith, the primary treating physician, are given greater weight in this proceeding due to his more extensive clinical involvement in claimant's case. Claimant's obesity probably aggravated her back problems, but an employer takes an employee as he is with his or her personal attributes and frailties. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was excellent and she had no functional impairments or ascertainable McCLELLAN V. MIDWEST BISCUIT COMPANY Page 11 disabilities. Claimant's testimony and her extensive work history indicate that claimant was fully able to perform physical tasks involving such things as repetitive lifting, bending, twisting and stooping, and prolonged standing and sitting. Claimant's treating physician, Dr. Smith, has given claimant a permanent impairment rating to the body as a whole. More importantly, however, in an industrial disability case is an assessment of claimant's physical capabilities. Again, Dr. Smith's views are found to be the most credible due to the longer clinical involvement in claimant's case and his views are most consistent with claimant's credible testimony. Dr. Kessler has only seen claimant once for a brief period of time. According to Dr. Smith, claimant cannot work eight hours a day and is able to only work, assuming an optimistic prognosis, four hours a day it there is no heavy lifting, repetitive lifting, bending, twisting and stooping; or, prolonged sitting or standing. Claimant's medical condition and the physician imposed work restrictions prevents claimant from returning to her former work or any other work which requires claimant to violate those restrictions. Claimant's severe work restrictions appear to prohibit most types of work claimant has performed in the past and to any other work for which claimant is best suited given her age, education and work history. Claimant remains unemployed despite a reasonable effort to seek alternative employment with Job Service of Iowa. According to the Supreme Court, such a factual setting gives rise to an application of the so-called McCLELLAN V. MIDWEST BISCUIT COMPANY Page 12 "odd-lot" doctrine. This doctrine is a procedure device designed to shift the burden of going forward with respect to employability to the employer when claimant demonstrates a reasonable but unsuccessful effort to look for work. Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986). A worker becomes an "odd-lot" employee when an injury makes a worker incapable of obtaining employment in any well known branch of the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). An odd-lot worker can only perform services that are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. id. In Guyton, the Supreme Court held that under the odd-lot doctrine, there is no presumption that merely because the worker is physically able to do certain work, such work is available. Where a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence shifts to the employer. If the employer fails to produce such evidence and if the trier of fact finds that the worker does fall into the odd-lot category, the worker is entitled to a finding of total disability. Id. at 106. In the case sub judice, claimant made a reasonable effort to find suitable work and produced expert evidence of her lack of employability in the competitive labor market. However, defendants did go forward with the evidence with the testimony of Clark Williams who opines that claimant does not tall into the odd-lot category. However, a review of all the factors of industrial disability clearly place claimant into the odd-lot category despite defendants' evidence. Regardless of the evidence dealing with the reasons surrounding claimant's leaving Midwest's employment, such evidence is not particularly important because it is clear that, given Dr. Smith's views, claimant is not working at Midwest today because of her disability. Defendants attempted to escape odd-lot liability with the views of Dr. Kessler and Clark Williams, but such evidence was not convincing. Dr. Kessler again did not spend enough time with claimant to be convincing with reference to his views on the authenticity of claimant's objective complaints. The testimony of Williams is likewise shallow. First, his views must be rejected because they are based upon a physical capabilities assessment which he, not any particular physician, developed from a reading of both the reports of Dr. Smith and Dr. Kessler. This deputy feels that the views of Dr. Smith and Dr. Kessler are extremely divergent and do not lend themselves to any sort of blending. Second, the listing of available jobs is not convincing. There was no attempt to actually determine for the jobs listed if claimant is physically or mentally suitable for such jobs and whether such jobs would be regularly available to claimant. There was actually no contact by Williams with any of the potential employers. Williams appears to have a rather restricted view of his role in a workers' compensation proceeding and distinguishes between placing claimant into a job and assisting claimant in finding a job. The claim by Williams that claimant was uncooperative in failing to fill out exhibit 10 consisting of over 30 pages of McCLELLAN V. MIDWEST BISCUIT COMPANY Page 13 questions is equally not convincing. Any person, including the undersigned, would have difficulty in completing the form and more importantly understanding the nature of some of the questions imposed. Many of these questions are personal and could be perceived as harassment rather than an attempt at vocational rehabilitation. The undersigned believes that seeking such information was not harassment, but this does not change the fact that it could be perceived as such. Given claimant's lack of educational abilities which Williams himself found, it is understandable that she may have misconceived his purpose and refused to cooperate. The undersigned was likewise not impressed with the report of Paprocki whose only testing involved math skills and who arrived at his conclusions after a telephone interview. It would appear that both Williams and Paprocki where hired for the purpose of litigation rather than for any true vocational rehabilitation. Consequently, their views are considered accordingly. Regardless of the role of the vocational counselors in this case, the fact remains that claimant remains unemployed today and nothing defendants have done has changed this fact. Claimant is 59 years of age and nearing the end of her working career. However, in Diederich v. Tri-City Railway Co., 219 Iowa 587, 258 N.W. 899 (1935), which also involved a 59 year old person, the court held that advanced age did not prohibit a finding of permanent total disability. In this case, claimant had no plans of retirement before the work injury. Working life does not end at age 59 or 60 years of age. It must be recognized that older persons are in the work force who are beyond the age of 59 years of age. Older persons regularly become employed even after retirement from their lifelong career jobs. Claimant has shown motivation to remain employed and has attempted on more than one occasion to return to her job at Midwest but was unable to do so because of her disability. Although claimant has a high school education, she exhibited below average scholastic aptitudes from testing by vocational counselors. Most of the vocational rehabilitation consultants agree in this case that claimant is not a good prospect for vocational retraining due to her age and disability. After examination of all the factors, it is found as a matter of fact that claimant falls into the "odd-lot" category and is 100 percent permanently and totally disabled in that there is no suitable or stable work available for claimant in the geographical area of her residence. Based upon such a finding, claimant is entitled as a matter of law to permanent total disability benefits under Iowa Code section 85.34(3) during the period of her disability which, in all likelihood, will be the rest of her life. In light of the finding of permanent total disability, the question of credit for benefits paid is moot. FINDINGS OF FACT McCLELLAN V. MIDWEST BISCUIT COMPANY Page 14 1. Claimant and her husband were credible witnesses. 2. The work injury of August 8, 1985, was a cause of a five percent permanent partial impairment to the body as a whole and of permanent restrictions upon claimant's physical activity consisting of standing, sitting and walking but only with periods of rest and not over two hours at any one point in time. Also, claimant can do no lifting or carrying above 10 pounds. Claimant can only occasionally bend or crawl and at no time can she squat. She cannot work in areas of unprotected heights; work in marked temperature changes; work around machinery; or drive an automobile on a prolonged basis. In the future, claimant may be able to work up to four hours per day if she improves as anticipated. 3. The work injury of August 8, 1985, was a cause of a 100 percent loss of earning capacity. Claimant is 59 years of age but had no retirement plans before her work injury. Claimant has not returned to work and has made a reasonable but unsuccessful effort to find suitable work within the geographical area of her residence. Due to her lack of education and her disability, claimant is only able to perform services which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist. Claimant is not employable at any competitive labor market within the geographical area of her residence. Claimant is a high school graduate but due to her age and disability, vocational retraining is not a feasible alternative. CONCLUSIONS OF LAW Claimant has established by @ preponderance of the evidence entitlement to permanent total disability benefits. ORDER 1. Defendants shall pay to claimant permanent total disability benefits for an indefinite period of time in the future during the period of her disability at the rate of one hundred twenty-seven and 83/100 dollars ($127.83) per week from August 8, 1985. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for all weekly benefits previously paid. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to Division of industrial Services Rule 343-4.33. 5. Defendants shall file activity reports on the payment Of this award as requested by this agency pursuant to Division of industrial Services Rule 343-3.1. Signed and filed this 26th day of May, 1988. McCLELLAN V. MIDWEST BISCUIT COMPANY Page 15 LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Schilling Attorney at Law 205 Witte Bldg. Box 1111 Burlington, Iowa 52601 Mr. E. J. Kelly Attorney at Law 2700 Grand Ave. Terrace Center, STE 111 Des Moines, Iowa 50312 4100 Filed May 26, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER GENNY E. McCLELLAN, Claimant, FILE NO. 802020 VS. A R B I T R A T I 0 N MIDWEST BISCUIT COMPANY, D E C I S I 0 N Employer, and WAUSAU INSURANCE COMPANY, Insurance Carrier, Defendants. 4100 Claimant found to be an odd-lot employee. She has remained unemployed since her leaving of her employment and she is unable to return to her past employment because of her disability. Despite a reasonable effort to look for work she has failed to find suitable employment. Defendants' evidence that she was employable in the local labor market was not convincing. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : MARJORIE BALDWIN, : : Claimant, : File No. 802083 : vs. : A P P E A L : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ 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 July 31, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Upon review-reopening, claimant has the burden to show that he has suffered a change in his condition since the original award was made. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). A mere difference of opinion of experts as to the percentage of disability arising from an original injury would not be sufficient to justify a different determination on a petition for review-reopening. Rather, such a finding must be based on a worsening or deterioration of the claimant's condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a condition to improve to the extent originally anticipated may also constitute a change of condition. Meyers v. Holiday Inn of Cedar Falls, Iowa, 179 N.W.2d 24 (Iowa App. 1978). Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law P.O. Box 535 Cherokee, Iowa 51012 9999 Filed December 17, 1991 BYRON K. ORTON MGT before the iowa industrial commissioner ____________________________________________________________ : MARJORIE BALDWIN, : : Claimant, : File No. 802083 : vs. : A P P E A L : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed July 31, 1991, with short additional analysis. 9999 Filed December 17, 1991 BYRON K. ORTON MGT before the iowa industrial commissioner ____________________________________________________________ : MARJORIE BALDWIN, : : Claimant, : File No. 802083 : vs. : A P P E A L : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed July 31, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARJORIE BALDWIN, : : File No. 802083 Claimant, : : R E V I E W - vs. : : R E O P E N I N G WILSON FOODS CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in review-reopening from an agreement for settlement brought by Marjorie Baldwin against Wilson Foods Corporation, her self-insured former employer, based upon an injury that occurred on July 10, 1985. The primary issues to be determined are whether there has been a change of condition which was proximately caused by the original injury which warrants reopening of the disability awarded under the agreement for settlement and, if so, redetermination of the extent of disability which was proximately caused by the July 10, 1985 injury. The case was heard and fully submitted at Storm Lake, Iowa on June 3, 1991. The evidence in the case consists of testimony from Marjorie Baldwin and James Putnum. The record also contains jointly offered exhibits 1 through 32. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Marjorie Baldwin is a 38-year-old lady who lives at Larrabee, Iowa. She is a 1970 graduate of Fonda, Iowa High School. Following high school, she worked as a cook and waitress in a restaurant. She has performed babysitting and walked beans. In approximately 1971, she worked several months in a garment factor sewing jeans, but developed an allergic reaction to chemicals found in the fabrics she sewed. She has worked as a maid at a resort hotel. Marjorie has been a cook and waitress at hamburger and pizza restaurants. She filled orders at a craft material warehouse. She worked briefly in a liquor store. In 1982, she attempted sewing for K-Products, but had to quit due to her allergic condition. After performing odd jobs for a time, she obtained employment at Wilson Foods in August 1983. Marjorie had not experienced any difficulties with her hands or arms prior to Page 2 the time she commenced employment with Wilson. Most of her prior jobs had paid approximately minimum wage. At Wilson, she started at $6.50 per hour and was earning $9.00 per hour when she eventually left the employment in 1989. Wilson Foods was clearly the best paying job she has ever held. Marjorie's first job at Wilson Foods was stacking boxes of meat on pallets. After approximately a month, she obtained a job where she placed hams into casings and screens and then hung them on trees for the smoking and curing process. The approximate weight of a screen loaded with three hams was 60 pounds. After approximately one year, Marjorie began having problems with her right hand going numb and being painful. She treated conservatively under the direction of the company physician, but eventually was referred to an orthopaedic surgeon. On January 9, 1987, orthopaedic surgeon Walter O. Carlson, M.D., performed a Neer decompressive acromioplasty on Marjorie's right shoulder (exhibits 3 and 4). After an appropriate period for recovery, therapy and a functional capacity evaluation, Marjorie resumed work at the Wilson plant (exhibits 9, 17 and 18). On August 17, 1987, Dr. Carlson rated claimant as having a two percent impairment of the whole person based upon the right shoulder. Marjorie returned to work with restrictions and eventually entered into a settlement agreement with the employer which provided her ten weeks of permanent partial disability compensation based upon a two percent permanent partial disability of the body as a whole (exhibit 30). Marjorie's job after she resumed work following her shoulder surgery paid approximately $.20 per hour less than what she earned prior to the injury. She continued to have difficulties with her hands and shoulder (exhibits 22, 23 and 29). She eventually underwent right carpal tunnel release surgery on June 21, 1988 (exhibit 11). On August 5, 1988, she was released to full-time work (exhibit 14). Marjorie did return to work, but was then laid off. Her last actual day of work was January 27, 1989. On June 12, 1989, she resigned. The reason given for her termination was that she did not want to injure her arms any further (exhibit 32). At hearing, she stated that Dr. Wolbrink had advised her to find other employment. In April 1989, Marjorie was evaluated by orthopaedic surgeon A. J. Wolbrink, M.D. Dr. Wolbrink rated her as having a 13 percent impairment of the right upper extremity, an amount which he stated was equivalent to 8 percent of the whole person. The ranges of motion shown in his report are not, however, substantially different from those found by Dr. Carlson when he provided the two percent impairment rating. There is nothing in the report issued by Dr. Wolbrink to indicate that he advised Marjorie that she should not resume work at Wilson Foods as she asserted in her testimony at hearing (exhibit 1). Page 3 According to the record, when viewed as a whole, it is found that the shoulder surgery was relatively successful and that the primary reason Marjorie chose to terminate her employment was the continuing problems with her hands rather than the problems with her shoulder. The problems described by James Putnum are essentially hand problems, more than shoulder problems. Those hand problems are the subject of another case. The record in this case fails to show that there has been any substantial change in the physiological condition of Marjorie's right shoulder since the settlement agreement was entered into in 1987. The record further fails to show that Marjorie has experienced any substantial change in her economic circumstances, which were proximately caused by the shoulder injury, since the settlement was entered into in 1987. conclusions of law In a review-reopening proceeding, the claimant has the burden of establishing that, since the original agreement for settlement, she has suffered an impairment or lessening of her earning capacity as a proximate result of the original injury. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969). The change may result from a change in earning capacity without a corresponding change in physical condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980). A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Blacksmith, 290 N.W.2d at 354. In this case, the greater weight of the evidence tends to indicate that Marjorie resigned her employment due to the condition of her hands and her extended layoffs rather than due to any physical disability related to her shoulder. When exhibit 10, the report showing the original rating from Dr. Carlson in 1987, is compared with exhibit 1, the report from Dr. Wolbrink dated April 21, 1989, it appears as though Marjorie's shoulder has actually improved rather than worsened when the objective range of motion measurements are compared. Her statements that it is as bad now as it was prior to undergoing the surgery and that Dr. Wolbrink advised her to cease working for Wilson's are not corroborated by any other evidence in the record. Her statements are essentially hearsay transmission of expert medical opinion testimony. Without corroboration, her statements are entitled to little weight since reasonable individuals would not be expected to rely upon hearsay statements from individuals who are not medically trained when dealing with important medical issues. Her testimony in that regard is not entitled to sufficient weight in order to permit her to succeed in meeting the burden of proving the change of condition needed in order to permit reconsideration of her permanent partial disability award. It is therefore concluded that the claimant has failed to prove, by a preponderance of the evidence, that there has Page 4 been a substantial change in her condition, which was proximately caused by the original injury, since entering into the original agreement for settlement. She is therefore not entitled to have her permanent partial disability award reconsidered. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that each party shall pay the costs incurred by that party in this proceeding pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 233 Pine Street P.O. Box 535 Cherokee, Iowa 51012 1302.1; 2905 Filed July 31, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MARJORIE BALDWIN, : : File No. 802083 Claimant, : : R E V I E W - vs. : : R E O P E N I N G WILSON FOODS CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1302.1; 2905 Claimant's testimony that her condition had worsened and that a physician had recommended she change employment was not entitled to sufficient weight to permit reopening of the amount of permanent partial disability awarded to her under an agreement for settlement where her statements were not corroborated by other evidence in the record. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDITH C. WHEELER Claimant, vs. SELDIN PROPERTIES d/b/a File No. 802285 HERITAGE INN, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA LIFE AND CASUALTY CO., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Edith C. Wheeler, claimant, against Seldin Properties, d/b/a Heritage Inn, employer, and Aetna Life and Casualty Company, insurance carrier, for benefits as a result of an alleged injury that occurred on July 28, 1985. A hearing was held on July 15, 1987 at Council Bluffs, Iowa and the case was fully submitted at the close of the hearing. The record consists of the testimony of Edith C. Wheeler (claimant), Nellie Harms (head housekeeper), Ann Miller (assistant head housekeeper), Phyllis Rajcevich (employer's manager) and exhibits one through 26. RULINGS ON EXHIBITS Initially, exhibits one through 25 were proposed as joint exhibits. Claimant objected to joint exhibit 22, a medical report of Richard D. Smith, M.D., because he had not deposed the witness. This objection was overruled and exhibit 22 was admitted into evidence. The original exhibit list was initially prepared by claimant and marked as claimant's exhibit list. At the hearing, defendants' counsel agreed that it could be called a joint exhibit list with the understanding that a joint exhibit list was to avoid duplication of exhibits to which neither party had any objection. Later, defendants' counsel learned that the exhibit list and the exhibits contained a personal home calendar prepared by claimant (Exhibit 25). Defendants' counsel objected to exhibit 25 for the reason that he had never seen it before July 14, 1987, the day before the hearing. Defendants' counsel added that claimant had not served the calendar or the exhibit list within 15 days prior to the hearing as required by paragraph six of the hearing assignment order which provides as follows. Witness and Exhibit Lists. A list of all witnesses to be called at the hearing and a list of all proposed exhibits to be offered into the evidence at the hearing along with copies of all written exhibits not previously served shall be served upon opposing parties no later than fifteen (15) days prior to the date of hearing. Only those witnesses listed will be permitted to testify at the hearing unless their testimony is clearly rebuttal or sur-rebuttal. Medical records, practitioners reports and all other written evidence shall not be admitted as exhibits at the hearing unless they have been served upon an opposing party as ordered herein. Defendants' counsel introduced into evidence the envelope and exhibit list used by claimant's attorney to transmit the exhibit list (Ex. 26). The certificate of service on the exhibit list was dated July 7, 1987. The envelope was postmarked July 7, 1987. Furthermore, the envelope was marked return to sender. ClaimantOs counsel admitted that he had sent it to the wrong address and that it was returned to him. Defendants' counsel then stated that he had never seen the exhibit list or exhibit 25 until July 14, 1987, the day before the hearing. He added that he never knew of the existence of exhibit 25 and had never seen it until July 14, 1987. Defendants' counsel then did not sign the joint exhibit list. Defendants' objection to exhibit 25 was sustained. Exhibit 25 was not admitted into evidence and was not considered in the decision of this case. It will remain a part of the record as an offer of proof. STIPULATIONS The parties stipulated to the following matters. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the type of disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is to be January 12, 1987. That the rate of compensation, in the event of an award of weekly benefits, is $68.78 per week. That the fees charged for medical services or supplies rendered are fair and reasonable. That the expenses for medical services or supplies were incurred for reasonable and necessary medical treatment. That the medical expenses were caused by the condition upon which claimant is now basing her claim. That defendants seek no credit under Iowa Code section 85.38(2) for the previous payment of benefits under an employee nonoccupational group plan. That defendants are entitled to a credit for benefits paid to claimant prior to hearing for 30.86 weeks of compensation at the rate of $68.78 per week. That in the event of an award claimant is entitled to costs as shown by claimant's affidavit of taxable costs attached to the WHEELER V. HERITAGE INN Page 3 prehearing report in the total amount of $450.86. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on July 28, 1985 which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of temporary disability during a period of recovery. Whether the alleged injury was the cause of permanent disability. Whether claimant is entitled to temporary disability benefits during a period of recovery, and if so, to what extent. Whether claimant is entitled to permanent disability benefits and if so, to what extent. Whether claimant is entitled to certain medical benefits under Iowa Code section 85.27. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. The first report of injury was prepared on August 23, 1985 by Phyllis A. Rajcevich. She also testified that this was the same day that claimant reported the injury to her. The first report states, and Rajcevich testified, that claimant did not know what date the injury occurred, but believed that it occurred in July of 1985 as noted on the first report of injury. A petition was filed on February 27, 1986, alleging that the injury occurred on June 29, 1985. A hearing was scheduled for October 9, 1986. Claimant moved to dismiss her claim without prejudice on the grounds that her recollection of,the date of the occurrence of the injury differed from the injury date alleged on the petition. This motion was granted and the claim was dismissed without prejudice. A new petition was filed on October 15, 1986 alleging that the injury occurred on July 14, 1985. Then, on February 5, 1987 claimant moved to amend the second petition to change the injury date from July 14, 1985 to July 28, 1985. Claimant testified that she is 55 years old. She has a ninth grade education with no additional education or training. She is married and her husband has received social security since 1981. Claimant testified that she had a cervical fusion using a bone from her hip about 11 or 12 years ago in the mid 1970's. She said this was a work related injury, however, she did not file a workers' compensation claim for it. Claimant denied that she had any lumbar problems prior to this alleged injury. She WHEELER V. HERITAGE INN Page 4 did admit that her hip often aches from where the bone was removed for her cervical fusion. Past employments include motel maid and dairy-ice cream store clerk and manager. Claimant started to work for employer on May 30, 1985, Memorial Day, as a housekeeper cleaning rooms. She obtained this job through her neighbor, Nellie Harms, who also works for this employer. Claimant testified that she was looking for part-time work. She only wanted weekend work, but agreed to work four days a week --- Wednesday, Thursday, Saturday and Sunday --- at the minimum wage to supplement her husband's social security income. Sometimes, disgruntled tenants leave a motel room in disarray. Such rooms are described as "trashed" or "messed" or "tossed". Claimant recalls a trashed room in June of 1985, but the one involved in her injury was in July of 1985. The tenants in room number 209, on the night of July 27, 1985, left the room trashed. There was hairspray on the mirror and spilled liquids. The mattress was turned over and the linens were underneath it. Claimant testified that she got the linens out and looked for help to turn the mattress over. She did not find any help in the hallway and tried to do it herself. She had be enable to do it in the past on other occasions. While endeavoring to turn the mattress over she felt a hit in her low back. She went down on her knees in pain for several minutes. She thought she strained her back. She had never had back problems before. She did not know what it was for sure. She pulled herself up, went into the bathroom, sat on the stool and washed her face. At lunch time, in the linen room, claimant told a group of employees, including her supervisor, Ann Miller, that she hurt her back on a mattress in a trashed room. Claimant contended that Miller asked her why she didn't go and get help. Claimant added that she mentioned this incident two or three times in conversation at that time. Claimant said she had pain in her back and right leg down to her toes but continued to work. In August she told one of her supervisors that she had to take some time off due to the pain in her back. She told Rajcevich the same thing and Rajcevich told her to go to the doctor. Claimant went to see her personal physician, James L. Whalen, M.D. He told her not to work until she got better. Claimant then called Rajcevich and told her she wanted to file a workers' compensation claim but she did not recall what day it happened. Rajcevich told her that they would look at a calendar and try to figure it out. When claimant came to the motel office to make the report, Rajcevich told her that if there were no witnesses, she would not get any money from the insurance company. Nellie Harms testified that she is the head housekeeper. She has worked at this location for nine years. She has been a neighbor of claimant for 17 years. At the time of the injury, Harms was the laundress. She said that she helped claimant get this job. They had been good friends at home and at work, but this case and Harms testimony at this hearing has affected their WHEELER V. HERITAGE INN Page 5 friendship. Harms testified that claimant had complained of a backache for a long time prior to July and August of 1985. Harms added that claimant never reported to her that claimant had injured her back until a long time after August of 1985. Harms admitted that all of the housekeepers complain about backaches because they do a lot of bending and stooping. Claimant denied that she told Harms that she had a backache, but admitted that she did complain about her hip. Ann Miller, a 21 year employee of employer, testified that she is assistant head housekeeper. Injuries are reported to her and she reports them to the manager. Claimant, like all of the housekeepers, complained about her back. Claimant never reported a back injury to her at break time or at any other time that she can recall. Miller believes that if claimant had told her that she injured her back that she would remember it. Miller did not know if claimant had been trained in how to report an injury or accident. Phyllis Rajcevich, a 20 year employee of employer, testified that she had been manager for three years. Claimant started to work again for this employer on May 30, 1985. She had worked there earlier but quit on August 18, 1980. Claimant first reported the injury to her on August 23, 1985. Claimant had not reported it to her prior to that time. Claimant did not know the date of the injury, but did state that it was,in July sometime. Claimant described an incident in a room that was torn up with a mattress off the bed. When this happens, the housekeeper is supposed to tell the head housekeeper. The last time there is a recorded incident of a trashed room, it occurred on June 15, 1985. Claimant had cleaned that room. The witness stated that she strongly believes that if claimant had reported the injury to Miller, then Miller would have reported it to her. Rajcevich said she did not know if claimant was trained in how to report an accident or injury. They did not have a handbook or written instructions at that time. Claimant testified her current situation is that she has a burning and a crawling sensation in her right leg. She stated that she cannot lift anything. She said that she is limited as to how long she can sit. She cannot bend or stoop. She cannot do her old housekeeping job. She has no current income. She has not tried to find work. She does do some housework at home. She knows of nothing other than this injury that could have caused her back problems. Dr. Whalen, summarized claimant's early condition for the insurance carrier in these words on September 16, 1985. This patient came to see me on August 22, 1985 with a back pain which she said occurred as a result of a work related injury on the job several weeks before that time. She does a lot of heavy lifting at work and developed the pain while she was working. She continued to try and work with this for several weeks prior to coming to see me; however, it got to the point where she had to come in because of the persistent nature of the pain. The pain was going down to the right leg to some extent. She was unable to work the WHEELER V. HERITAGE INN Page 6 week of my initial examination. Physical findings revealed paravertebral muscle spasm, decreased range of motion but no neurological deficits. She was treated conservatively with anti-inflammatories, muscle relaxants and physical therapy. X-ray of the lumbar spine did not reveal any abnormalities. The patient was treated conservatively and was followed on a weekly basis. She continued to do poorly and as a result she was finally referred to Dr. B. Rassekh for his evaluation from a neurosurgical point of view. Dr. Rassekh [sic] saw her in consultation after she was admitted to the hospital because of severe and acute exacerbation of the pain and she was admitted to Jenny (sic] Edmundson Hospital. During her stay in the hospital a myelogram was carried out which did not conclude any significant herniated disc enough to warrant surgical procedure. As a result, Dr. Rassekh recommended that she, continue to be treated conservatively with rest, ROM exercises and anti-inflammatories and a TNS unit as an outpatient. She continues with the conservative treatment at this time, I am not certain at this point whether she will have any permanent disability from the injury; however, she is not able to go back to her previous employment and I am not certain about how soon she will be able to do this. We will keep you posted on her progress. I will follow her along with Dr. B. Rassekh. (Ex. 1) Dr. Whalen reported later that Dr. Rassekh did make some objective findings but that there was no nerve root impingement at that time. Dr. Whalen said: The patient was initially sent to Dr. B. Rassekh, who felt that the patient had a possibility of a herniated lumbar disc and admitted the patient to Jenny [sic] Edmundson Hospital and performed a lumbar myelogram. She had bulging of the L-4 lumbar disc with a transitional Sl segment but at the time there was not felt to be any nerve root impingement and as a result, the patient was dismissed from the hospital with a diagnosis of likely musculoskeletal vasuloskeletal lumbar sprain to continue with conservative treatment. Dr. Rassekh at this point referred the patient back to my office again. (Ex. 9) Dr. Whalen said that when claimant failed to make any progress and was not able to work he then referred her to Patrick Bowman, M.D., an orthopedic surgeon. Dr. Bowman reported on November 20, 1985 that claimant's workup and physical exam did not show any sign of active disc disease, however, she did complain of right leg pain. He felt the workers' compensation claim was an influence on her condition and recommended that she settle it. Dr. Bowman concluded as follows on November 20, 1985. "I think she has enough objective findings on physical exam as well as radiographic changes to justify back pain, although quite WHEELER V. HERITAGE INN Page 7 candidly, her level of impairment seems a bit out of proportion to what these would suggest. I hope we can do Edie some good.O (Ex. 3). Claimant was next examined by Richard D. Smith, M.D., at the request of defendants on December 6, 1985. Claimant said that she saw Dr. Smith for five minutes. It took three minutes to tell him why she was there and two minutes to be examined by him. Dr. Smith said that claimant told him that she could not bend, sit or stand. She hurt like the devil and was all around miserable. Dr. Smith stated that he felt that claimant's responses to his examination were voluntarily altered. Dr. Smith concluded as follows in his letter to the insurance carrier. "I really do not feel that Mrs. Wheeler has significant pathology. I think she should receive no further treatment, and if at all possible she should be returned to work so that she might be rehabilitated. I do not feel that Mrs. Wheeler has any permanent disability.O (Ex. 22). Claimant had been receiving workers' compensation benefits. She testified that after she saw Dr. Smith her workers' compensation benefits were terminated. Dr. Bowman reported again on April 2, 1986 that he continued to treat claimant and administered three caudal blocks which seemed to help temporarily but not permanently. He said he could not establish a pinched nerve, but he did feel that she had legitimate back disease. He stated that her complaints were out WHEELER V. HERITAGE INN Page 8 of proportion to what he could find medically. Dr. Bowman thought she could be gainfully employed if she did not lift more than 15 pounds and avoided excessive bending, lifting or stooping. He also suggested that she wear an abdominal binder (Ex. 4). Claimant testified that she was unable to get out of bed on June 22, 1986. She was taken to the emergency room at Jennie Edmundson Hospital and seen by D. P. Moffett, M.D. He concluded his history and physical with the following words. ASSESSMENT: Chronic low back pain with negative [sic] extensive evaluation in the past, unable to cope with it at home. Status post cervical fusions times two in the past; status post appendectomy and vaginal hysterectomy with repair of rectocele and cystocele. Patient has had extensive evaluation in the past including CT scan of the back, EMGS with nerve conduction studies, myelography, numerous radiographic plain films, physical therapy, caudal blocks, TNS, and now admitted to the hospital for control of her pain. At this time, I would recommend MRI and if negative could treat with TNS, moist heat, further physical therapy, and possibly pain schooling. (Ex. 5) Claimant was hospitalized on June 22, 1986 and at that time was examined by R. Schuyler Gooding, M.D., a neurosurgeon. A magnetic resonance imaging (MRI) was subsequently performed on June 24, 1986 (Ex. 20). After his examination on June 25, 1986 he gave the history that claimant was injured while putting a mattress back on the bed at the motel. He said that she had a tendency to stand bending forward and appeared to be in marked distress. Dr. Gooding summarized the history of her radiologic examinations as follows. X-ray of the lumbar spine reveal partial lumbarization of Sl. A lumbar myelogram revealed a mild L4-L5 bulging disk which tended to bulge more as the patient was raised to an erect posture. A CT scan of the lumbar spine was suggestive of a mild L4-L5 disk protrusion. A more recent MRI also confirms the presence of an L4-L5 disk protrusion. (Ex. 6) The MRI demonstrated some herniation of the L-4, L-5 disk space with some nerve root impingement (Ex. 8). Dr. Gooding ended his examination on June 25, 1986 as follows. When I initially evaluated her in February of 1986, I was not impressed that she had a surgical condition, even though she did have an obvious protruding disk at WHEELER V. HERITAGE INN Page 9 the L4-L5 level. She describes herself as not having been able to return to work since the original injury and that her pain is increasingly localizing to the right hip, where as previously it was primarily in her lower back. In view of the overall progressive picture, I would suggest that we surgically remove the offending disk at the L4-L5 level from a right-sided approach. (Ex. 6) On June 27, 1986 Dr. Gooding performed an interlaminal excision of herniated L-4-5, right posterolateral approach with removal of a small free fragment in the right L-5 root foramina (Ex. 7). Dr. Gooding stated on February 20, 1987 that claimant is impaired and that the impairment is a product of the injury to her lower back and subsequent surgery. His final evaluation is as follows. I have released her to progressively return to all activities without restrictions, but I did caution her about using good judgement with regards to bending, lifting, carrying and prolonged sitting. I would place her permanent partial disability with regards to the whole person as the product of the injury to her lower back and the subsequent surgery, at 15%. This is because the lower back has not been returned to a normal anatomical condition by virtue of this surgery, even though she has clinically been significantly helped by this surgery. The permanent alteration of her lower back, does place her at a slightly greater risk with regards to another injury in the future, were she never have had the injury and subsequent surgery in the first place. (Ex. 10) Dr. Whalen in his final report of September 22, 1986 related the entire history from the beginning until after her surgery and he stated that she did sustain a job injury and that she has been totally disabled since the original injury. His exact words are as follows. From my previous experience from dealing with Mrs. Wheeler as well as following the progress of this particular injury through the last year, I have no doubts that she, indeed, suffered a significant injury to her lumbar spine on the job in 1985. It was our feeling all along tht [sic] this patient indeed has a significant component of lumbar disc injury compounded by musculoskeletal ligament sprain and muscle sprain; however, it was only after studying the patient with nuclear magnetic resonance imaging that we were able to prove our diagnosis. This [sic] patient has been WHEELER V. HERITAGE INN Page 10 totally disabled since this original injury and I feel quite confident that the patient has no significant component of malingering. (Ex. 9) Claimant presented the following medical expenses for payment. Midlands Family Medicine (Dr. Whalen) $950.00 Abby Medical (TENS Unit) 80.00 Medical Anesthesia Associates 400.00 American Ambulance Service 195.00 Dr. Gooding 2,655.00 The Pharmacy 11.99 The Pharmacy 16.99 Johnson Pharmacy & Home Health Care 402.28 Jennie Edmundson Memorial Hospital 1,703.10 Jennie Edmundson Memorial Hospital 398.55 Jennie Edmunsdon Memorial Hospital 5,416.80 $12,229.71 The parties stipulated that the fees charged for medical services and supplies are fair and reasonable; that the expenses were incurred for reasonable and necessary medical treatment and that the expenses were caused by the condition upon which claimant is basing her claim. The office notes of Dr. Whalen, who began seeing claimant in 1980 as her personal physician, do not show a history of any treatment for her back prior to this injury on July 28, 1985. On August 17, 1984 Dr. Whalen did record that the patient complains of some low backaches and leg aches as one of many things he discussed on that date. Her main complaints and treatment on that date was actually for sweats, depression, and female problems. He administered no treatment for her back but simply mentioned her back and legs in passing. The next time he saw claimant was on August 22, 1985 for this injury. At that time, this is what he recorded. Patient has an on the job injury to her lumbar spine approximately 3 or 4 weeks ago. She has been trying to work with this and work it out since it occurred. She is now having pain going down to the right leg. She is having constant discomfort and has been unable to work this week. P/E Limping gait, paravertebral muscle spasm of the lumbar spine with decreased flexion an extension of the lumbar spine. Rotation and lateral flexion and extension is normal. RX Physical therapy, x-rays lumbar spine, Motrin 400 4 x a day and Robaxin 500 4 x a day, reck 1 week. IMPRESSION.: Lumbar sprain possibly herniated lumbar disc. (Ex. 23) WHEELER V. HERITAGE INN Page 11 Even though Dr. Smith said that claimant could return to work after he examined her on December 6, 1985, Dr. Whalen said on January 21, 1986 that he would continue with her disability. Dr. Whalen said again on June 23, 1986 that she was unable to work (Ex. 23). Dr. Gooding performed surgery on June 27, 1986 and released claimant to return to all activities without restrictions on January 12, 1987 (Ex. 10). APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on July 28, 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 claimant has the burden of proving by a preponderance of the evidence that the injury of July 28, 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 possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of WHEELER V. HERITAGE INN Page 12 percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Claimant did satisfy the burden of proof by a preponderance of the evidence that she sustained an injury on July 28, 1985, or sometime close to that date, which arose out of and in the course of her employment with the employer. Defendants argue that claimant is a poor historian. This is an understatement, but it is no basis for denying an otherwise compensable claim. Claimant caused many problems for herself, her attorney, defendants' attorney and this agency because she could not determine the exact date of her injury. This may well have defeated her case except for the fact that her personal physician, Dr. Whalen, and her surgeon, Dr. Gooding, gave a clear and unequivocal opinion that her work injury caused her back condition and subsequent surgery. Dr. Whalen traced the entire history of claimant's symptoms and treatment from the date she first saw him on August 22, 1985 until the surgery on June 27, 1986 and even beyond. His last WHEELER V. HERITAGE INN Page 13 office note is dated February 24, 1987. Dr. Whalen is convinced that claimant injured her back at work as she described and that it caused the eventual surgery. He makes out a case that cannot be ignored and is extremely difficult to discount or refute (Ex. 9). Furthermore, Dr. Gooding said the surgery was the product of the injury (Ex. 10). No other physician disputed or challenged the opinions of Dr. Whalen and Dr. Gooding. No physician disputed that claimant had a work injury --- Dr. Rassekh, Dr. Bowman, Dr. Smith, or Dr. Moffett. Dr. Bowman and Dr. Smith thought that claimant's complaints exceeded their objective medical findings. Dr. Smith could not find much if anything wrong with claimant and told her to go back to work. Dr. Whalen said that he felt all along that claimant's complaints were justified and he implied that medical science simply had not determined the medical cause of her complaints until the MRI on June 24, 1986 which described the bulging annulus with what appeared to be a disc protrusion or herniation at L-4, L-5 (Ex. 20). In this case, the written opinions of the treating physician, Dr. Whalen, and the surgeon, Dr. Gooding, are clear, unequivocal and convincing. Also, these two physicians were responsible for the success or failure of claimant's care and their opinions were not disputed by any other physician. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 189, 192 (Iowa 1985). Claimant was not a persuasive witness on her own behalf. Nevertheless, it is understandable that if she did in fact strain her back, and expected it to go away, which is a frequent and common human experience, then she probably did not make a record of the exact date of the injury. The fact that the defendants have a record of only one tossed room in 1985, on June 15, 1985, is not necessarily absolute proof that there were not other tossed rooms on other dates. Claimant's testimony indicated that she had a tossed room in June of 1985. She also testified that there were two tossed room two days in a row at the time of her injury in July 1985. It is doubtful if June 15, 1985 was the only date that the motel had a tossed room in 1985 or that the motel record is perfectly accurate or infallible on this point. Miller and Harms testified that claimant did complain of her back prior to the injury date in 1985. Claimant denied it and said she complained about her hip. Dr. Whalen recorded backaches and leg aches on August 17, 1984. It is entirely possible that a 54 year old motel maid/housekeeper might have back complaints. There was no evidence however, that claimant had ever injured her back or had sought treatment for a back injury prior to this incident. Defendants assert that the length of time between June 15, 1985 or July 28, 1985 and when claimant first sought treatment on August 22, 1985, demonstrates that claimant did not in fact sustain a back injury as she alleges because of the time interval between the alleged injury date and the date that she sought treatment. This is definitely an element to consider in this case. Claimant testified however, that she had increasing back problems from the date of the injury until the time she went to see Dr. Whalen. Dr. Whalen corroborated this testimony by his WHEELER V. HERITAGE INN Page 14 office notes, his medical report and his deposition. Dr. Whalen stated that claimant reported that she sustained the injury three or four weeks ago and had been trying to work with it since it occurred but she then had pain going down her right leg. He felt that she was unable to work. The interval between any of the injury dates which have been suggested (June 15, 1985; June 29, 1985; July 14, 1985; and July 28, 1985) is not in itself sufficient to warrant a decision in favor of defendants in the face of the testimony of Dr. Whalen and Dr. Gooding that the injury and resulting surgery were caused by work and their testimony is not contradicted, rebutted or refuted by any other medical practitioner. Therefore, it is determined that claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury on or about July 28, 1985 which arose out of and in the course of her employment which was the cause of both temporary and permanent disability. Dr. Whalen took claimant off work on June 26,,1985. Dr. Gooding did not return claimant to work until January 12, 1987. Even though Dr. Smith thought claimant could work on December 6, 1985, Dr. Whalen said on January 21, 1986 and June 23, 1986 that claimant should remain off work. After the surgery on June 27, 1986 Dr. Gooding did not release claimant to return to work until January 12, 1987. Therefore, it is determined that claimant is entitled to healing period benefits from June 23, 1985 to January 12, 1987. Claimant is 55 years old and has a 9th grade education. Her past employments are store clerk and motel housekeeper. Claimant testified at the hearing that she is still unable to work. Dr. Whalen did not think that she was able to perform gainful employment on February 24, 1987 (Ex. 23). Nevertheless, Dr. Gooding, the surgeon, did release claimant to return to all activities without restrictions with only the admonition that she be careful because she is more predisposed to a greater risk of injury than if she had not had the surgery. Claimant conceded that she had not tried to work since the injury. When claimant took this job for employer she only wanted part-time work on the weekends only. Claimant's husband is retired. Claimant's work pattern appears as though she might also be partially retired. Age and proximity to retirement affect a claimant's entitlement to industrial disability. Beck v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34, 36 (1979); Walton v. B & H Tank Co., II Iowa Industrial Commissioner Reports 426 (1981). The operative phrase in industrial disability is loss of earning capacity. VerSteegh v. Rolscreen Company, IV Iowa Industrial Commissioner Reports 377 (1984). Since Dr. Gooding placed no formal restrictions or limitations on claimant's activities but returned her to all activities, claimant's industrial disability would not be great. She was working for the minimum wage prior to the injury. If she finds additional employment at the minimum wage it would not constitute a loss of income. Industrial disability need not exceed functional impairment. Birmingham v. Firestone Tire and Rubber Co., II Iowa Industrial Commissioner Report 39 (1981). Industrial disability can be equal to, less than or greater than functional impairment. Lawyer & Higgs, Iowa Workers' Compensation --, Law & Practice, WHEELER V. HERITAGE INN Page 15 section 13-5, page 116 and 1987 supplement page 20. It would appear that claimant could return to work as a motel housekeeper if she does not attempt to lift mattresses. The evidence was that she was not supposed to lifting the mattress by herself in the first place when this injury occurred according to her own testimony. Based upon the foregoing evidence and discussion and all of the factors that go into a determination of industrial disability, it is determined that claimant has sustained a 15 percent industrial disability to the body as a whole. Claimant is entitled to recover $12,229.71 in medical expense as stipulated to by the parties. In addition the parties stipulated that in the event of an award claimant was entitled to costs in the amount of $450.86 as shown in the affidavit of taxable costs presented by claimant's attorney. FINDINGS OF FACT WHEREFORE, based upon the evidence presented the following findings of fact are made. That claimant sustained an injury to her back on or about July 28, 1985 while lifting a mattress while at work for employer as a housekeeper. That the injury caused claimant to be off work from August 23, 1985 to January 12, 1987. That claimant suffered a 15 percent impairment to the body as a whole. That claimant sustained a 15 percent industrial disability to the body as a whole. That claimant incurred $12,229.71 in medical costs. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law the following conclusions of law are made. That claimant sustained an injury on or about July 28, 1985 which arose out of and in the course of her employment with employer. That the injury was the cause of both temporary and permanent disability. That claimant is entitled to 72.429 weeks of healing period benefits from August 23, 1985 to January 12, 1987. That claimant is entitled to 75 weeks of permanent partial disability benefits as industrial disability. WHEELER V. HERITAGE INN Page 16 That claimant is entitled to medical expenses in the amount of $12,229.71. That claimant is entitled to costs in the amount of $450.86 as stipulated. That defendants are entitled to a credit of 30.86 weeks of workers' compensation benefits paid prior to hearing. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant seventy-two point four two nine (72.429) weeks of healing period benefits for the period from August 23, 1985 to January 12, 1987 at the rate of sixty-eight and 78/100 dollars ($68.78) per week in the total amount of four thousand nine hundred eighty-one and 67/100 dollars ($4,981.67). That defendants pay to claimant seventy-five (75) weeks of permanent partial disability benefits as industrial disability at the rate of sixty-eight and 78/100 dollars ($68.78) per week in the total amount of five thousand one hundred fifty-eight and 50/100 dollars ($5,158.50) commencing on January 12, 1987. That defendants are entitled to a credit of thirty point eighty-six (30.86) weeks of workers' compensation benefits at the rate of sixty-eight and 78/100 dollars ($68.78) per week paid to claimant prior to hearing in the total amount of two thousand one hundred twenty-two 55/100 dollars ($2,122.55). That all accrued benefits are to paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of services twelve thousand two hundred twenty-nine and 71/100 dollars ($12,229.71) in medical expenses introduced at the hearing. That defendants pay to claimant four hundred fifty and 86/100 ($450.86) in costs as stipulated to at the time of the hearing and that claimant is entitled to costs pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 17th day of March, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER WHEELER V. HERITAGE INN Page 17 Copies To: Mr. Jacob John Peters Attorney at Law P.O. Box 1078 Council Bluffs, Iowa 51502 Mr. Theodore Stouffer Mr. David Blagg Attorneys at Law 8805 Indian Hills Dr. STE 300 Omaha, Nebraska 68114 Page 1 before the iowa industrial commissioner ____________________________________________________________ : EDITH C. WHEELER, : : File No. 802285 Claimant, : : R E V I E W - vs. : : R E O P E N I N G SELDIN PROPERTIES d/b/a : HERITAGE INN, : D E C I S I O N : Employer, : : and : : AETNA LIFE & CASUALTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening upon the petition of claimant, filed, April 24, 1989. On July 28, 1985, claimant sustained an injury which arose out of and in the course of her employment with defendant-employer. An arbitration decision was filed on March 17, 1988, whereby defendants were ordered to pay healing period benefits, medical benefits and 15 percent permanent partial disability benefits. All of the aforementioned benefits were paid prior to the filing of the review-reopening petition. The hearing on the petition for review-reopening was held in Council Bluffs, Iowa on May 4, 1990. The additional record consists of joint exhibits 1-8. The witnesses who have testified are Alfred J. Marchisio, Jr., Patricia Conway and claimant. issues The issues presented for determination are whether claimant has experienced a change of condition since the prior arbitration hearing and, if so, the extent of her current industrial disability. Page 2 findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant was 58 at the time of her review-reopening hearing. She had completed the ninth grade but had never obtained her GED. After raising her family, claimant returned to the work-force in approximately 1983. Following her work injury of July 28, 1985, claimant attempted to return to work. She obtained employment at a Bonanza Restaurant where she was hired to maintain the salad bar. She held the job for one week. R. Schuyler Gooding, M.D., the treating surgeon, assessed a 15% impairment rating to claimant's condition. In the fall of 1988, claimant commenced employment with Hy-Vee in the bakery. She worked 10-15 hours per week. She voluntarily terminated her employment. Since that period of employment, claimant had not attempted work. Claimant testified that since 1987, her pain had worsened. She described her pain as occurring in her low back and radiating down to her right foot. Claimant stated she is incapable of gainful employment. The evidence establishes that prior to and after February 26, 1987, claimant had sought medical treatment from James Whalen, M.D., a physician in family practice. He testified by deposition that since claimant's surgery, she had been unable to work. Dr. Whalen testified that: A. Based upon my most recent encounters with Mrs. Wheeler, she continues to complain of chronic pain. She continues to periodically take pain medicine and anti-inflammatory type medications. She continues to complain that she's unable to do even housework and vacuuming and sweeping and what would be considered by most people to be everyday, nonstrenuous activities. And she feels that even those activities make her pain worse and as a result, she's unable to do it and doesn't want to do them. And based on those subjective symptoms, I don't feel there's been a change in her status. (Exhibit 5, pages 6-7, lines 16-1) Page 3 Additionally, Dr. Whalen noted that as of June 5, 1989: Patient continues to be symptomatic. Patient will be given a trial of Voltaren 75 mgs twice a day, I don't PT [sic] at this point is going to help her any, her pain is basically chronic and been persistent ever since injury and subsequent surgery. Finally, in his written report of May 24, 1989, Dr. Whalen opined: Thank you for your correspondence of May 4, 1989 regarding Mrs. Edith Wheeler. As you indicated Mrs. Wheeler did injure her back on July 28, 1985. The nature of this injury was that of herniated lumbar disc with nerve entrapment. After extensive attempts at conservative management the patient did undergo surgery in June of 1986. Her postoperative course has been somewhat disappointing in that she continues to have significant pain. She's been unable to return to any kind of gainful employment. Symptomatically she states that the pain is exacerbated by most activities including house cleaning, cooking, she's unable to walk for any significant distance and has been unable to do most activities that she was able to do prior to the injury. I feel that the injury from 1985 is probably the sole cause of her current disability as she has not had any other ongoing medical problems nor did she have any medical problems prior to this particular accident. The limitations that have been placed on this patient at this point are more from the point of view of symptom control. She has been advised doing any activity which requires lifting, bending, or stooping but her general activities are being restricted more by her exacerbated symptoms than anything else as she has not been employed. I do not feel this patient is capable of any gainful employment at this time. As a result of these ongoing symptoms I feel she is totally disabled. On September 21, 1989, claimant had an independent medical exam from Anil K. Agarual, M.D. The orthopedic physician opined in his report of December 11, 1989: Her range of motion of the lumbar spine shows 80% mobility. She has no scoliosis of kyphosis. She has normal knee and ankle reflexes and no gross motor, sensory losses. Straight leg raising shows some tightness at 70 degrees in both sides. Discussion: I believe she has reached her maximum medical improvement. I believe her permanent partial disability rating of 15% is satisfactory. Usually a disability rating after a lumbar Page 4 laminectomy is only 10%. I do not believe she is totally disabled for any gainful employment. I believe she can return to any work that does not require any heavy lifting beyond 20 to 25 pounds. I believe prolonged bending and stooping should be kept to a minimum also. Claimant also participated with two vocational rehabilitation specialists. Alfred J. Marchisio, Jr., of Midlands Rehabilitation Consultants found that claimant did not have the capacity to engage in regular employment. The other specialist, Patricia G. Conway, determined claimant was employable at the same rate of pay she earned in 1988 while she was employed at Hy-Vee. conclusions of law Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). In the Meyers case, supra, the Iowa Court of Appeals held at page 26: It makes little difference from the standpoint of the injured claimant whether a physical condition resulting from an injury progressively worsens beyond what was anticipated or fails to improve to the extent anticipated. Either situation results in the industrial commissioner being unable to fairly evaluate the claimant's condition at the time of the arbitration hearing. In deciding this question it is important to note that the determination to be made is industrial disability not functional physical disability. Where, as in the present case, the evaluation is Page 5 made before the claimant attempts to return to work the extent of industrial disability is not certain. When passage of time and subsequent events show the true extent of industrial disability there should be some vehicle for adjusting a prior award.... At the time this arbitration decision was rendered, it is evident that claimant's condition was anticipated to improve and that claimant would return to full time gainful employment at minimum wage or better. Claimant did, in fact, return to work. She held two different positions for very short periods of time. In one situation, claimant could work only one week. In the other situation, claimant worked for three months but only part-time hours. She was unable to work full time. Eventually, claimant terminated her position at Hy-Vee after she had cut her employment back to six hours per week. Claimant had not sought employment since then. She is incapable of performing household chores. In light of the foregoing, it is the determination of the undersigned that claimant has failed to improve as anticipated and that this failure to improve constitutes a change of condition. Claimant argues she is permanently and totally disabled, or that in the alternative, she is an odd-lot employee under Guyton v. Jensen, 373 N.W.2d 101 (Iowa 1985). The undersigned is in agreement with claimant. She is an odd-lot employee under the rationale of Guyton. Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to Page 6 the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). Claimant had attempted employment on two separate occasions. She was only capable of working one week in one of the positions. In the other job, claimant only worked part-time. Prior to her termination, she was working only six hours per week. This was not meaningful and gainful employment at $4.00 per hour. This was not competitive employment. Claimant is 59 years old. Her age is working against her. She has a ninth grade education. She has no GED or formalized education. She has no special skills. She is not even capable of performing certain household chores, such as vacuuming. It is doubtful she can hold a position as a maid or hotel housekeeper. Claimant is restricted from lifting 20-25 pounds. She can not engage in prolonged stooping and bending. She is limited to sedentary work. Defendants have been unable to produce any well known branch of the labor market for which claimant is capable of obtaining employment. Defendants' expert, Ms. Conway, testified she had never met claimant. At best, she hoped claimant could return to sporadic-occasional work. This is not competitive employment. It is the determination of the undersigned that claimant is totally disabled under Guyton, supra. The only services claimant can perform are so limited in quality, dependability, or quantity that a stable labor market for her is non-existent. order Page 7 THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant weekly benefits for the duration of claimant's period of permanent total disability with said benefits commencing on August 23, 1989 and running continuously at the stipulated rate of sixty-eight and 78/l00 dollars ($68.78) per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report. Signed and filed this ____ day of February, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies To: Mr. Jacob John Peters Attorney at Law 233 Pearl St P O Box 1078 Council Bluffs IA 51502 Mr. Theodore Stouffer Mr. David A. Blagg Attorneys at Law 8805 Indian Hills Dr Suite 300 Omaha NE 68114 1106; 1108.50; 1402.20; 1402.30; 1402.40; 1402.60; 1802; 1803; 2500; 2907 Filed March 17, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDITH C. WHEELER, Claimant, vs. SELDIN PROPERTIES d/b/a File No. 802285 HERITAGE INN, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA LIFE AND CASUALTY CO., Insurance Carrier, Defendants. 1106; 1108.50; 1402.20; 1402.30; 1402.40; 1402.60 Part time motel housekeeper found to have sustained an injury arising out of and in the course of employment by turning over a mattress that caused a back injury that eventuated into a herniated disc based on the strong, clear, firm evidence of her personal physician and the operating neurosurgeon which was not controverted. 1802; 1803 Claimant awarded healing period and permanent partial disability. Permanent function impairment rating was 15 percent by neuosurgeon and claimant was awarded 15 percent industrial disability. Claimant was age 55, worked sporadically and only part time basically on weekends to supplement her husbands social security income. Neurosurgeon returned her to all activities with admonition to be careful. 2500; 2907 Claimant awarded $12,229.71 in medical expenses and costs as stipulated between counsel. 4100 Filed February 20, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : EDITH C. WHEELER, : : File No. 802285 Claimant, : : R E V I E W - vs. : : R E O P E N I N G SELDIN PROPERTIES d/b/a : HERITAGE INN, : D E C I S I O N : Employer, : : and : : AETNA LIFE & CASUALTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 4100 In a review-reopening proceeding, claimant was determined to be an odd-lot employee under Guyton,. Claimant had attempted employment on two separate occasions. She was only capable of working one week in one of the positions. In the other job, claimant only worked part-time. Prior to her termination, she was working only six hours per week. This was not meaningful and gainful employment at $4.00 per hour. This was not competitive employment. Claimant is 59 years old. Her age is working against her. She has a ninth grade education. She has no GED or formalized education. She has no special skills. She is not even capable of performing certain household chores, such as vacuuming. It is doubtful she can hold a position as a maid or hotel housekeeper. Claimant is restricted from lifting 20-25 pounds. She can not engage in prolonged stooping and bending. She is limited to sedentary work. Defendants have been unable to produce any well known branch of the labor market for which claimant is capable of obtaining employment. Defendants' expert, Ms. Conway, testified she had never met claimant. At best, she hoped claimant could return to sporadic-occasional work. This is not competitive employment. It is the determination of the undersigned that claimant is totally disabled under Guyton, supra. The only services claimant can perform are so limited in quality, dependability, or quantity that a stable labor market for her is non-existent. BEFORE THE IOWA INDUSTRIAL COMMISSIONER __________________________________________________________________ LARRY D. OTTEN, Claimant, VS. FILE NO. 802386 LEHIGH PORTLAND CEMENT CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Larry D. Otten, claimant, against Lehigh Portland Cement Company, employer, and Travelers Insurance Company, insurance carrier, for benefits as a result of an alleged injury on August 28, 1985. A hearing was held in Mason City, Iowa on September 4, 1986 and the case was fully submitted at the close of the hearing. The record consists of the testimony of Larry D. Otten (claimant); claimant's exhibit 1 (consisting of 17 pages); and defendants' exhibits 1 through 32 which include also exhibit 13A and exhibit 14A, B, C, and D. STIPULATIONS At the time of the hearing the parties stipulated to the following matters: That an employer/employee relationship existed between the claimant and the employer at the time of the alleged injury. That the rate of compensation in the event of an award is $322.64 per week. That the time off work for which the claimant seeks temporary disability benefits is from August 28, 1985 to November 22, 1985. That in the event of an award the defendants are entitled to a credit under Iowa Code section 85.38(2) for the previous payment of disability income under an employee non-occupational group health plan in the amount of $1,955.40. ISSUES OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 2 The issues presented by the parties for determination at the time of the hearing are as follows: Whether the claimant sustained an injury on August 28, 1985 which arose out of and in the course of his employment with the employer. Whether the alleged injury is the cause of either temporary or permanent disability benefits. Whether the claimant is entitled to either temporary or permanent disability benefits. Whether the claimant is entitled to medical benefits under Iowa Code section 85.27. SUMMARY OF THE EVIDENCE Claimant is 39 years old, married and has two sons ages 16 and 12. He graduated from high school in 1966. The following year in 1967 he completed a one year course at Hawkeye Tech for which he received a diploma. In 1966 and 1968 he did turret lathe work and machine work and some welding. He started to work for the employer on July 23, 1968 and terminated there on August 28, 1985. While working for the employer he also completed a two year course at Northern Iowa Area Community College and received an AA (Associate Arts) Degree in 1971. Claimant performed a number of jobs for the employer. From 1976 to 1985 he was a sheetmetal welder in the maintenance department. Claimant denies any problems with allergies or breathing prior to working for the employer. Claimant's extensive medical records clearly indicate a lot of trouble with allergies, breathing, and nasal congestion and drainage from 1970 until the claimant terminated his employment on August 28, 1985. Numerous allergy tests were taken but nothing ever conclusively established the etiology of the allergies. A number of doctors at the Park Clinic over the years stated that they suspected his breathing problems were associated with cement dust at his place of employment. However, when claimant was tested for a reaction to nickel and chromium, two ingredients related to cement dust, the tests were negative (Claimant's Exhibit 1, page 3). On January 13, 1983, claimant began to see R. L. Cooley, M.D., an allergy and pulmonary medicine specialist at the Park Clinic in Mason City for complaints of nasal congestion, sneezing and drainage. Claimant could only breath out of the right side of his nose. The left side of his nose was completely obstructed due to a deviated septum. Nasal surgery was performed by a Dr. Smith (full name unknown) of the Park Clinic in the early 1970's. However, this surgery did not improve his condition. Dr. Cooley found that claimant suffered from a deviated septum and chronic sinusitis for many years. The doctor also thought his long-term nasal problem was related to cement dust (Cl. Ex. 1, pp. 1-3). Dr. Cooley recorded this statement in his office notes on July 31, 1985: ...In discussing with him in the past, I firmly believe OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 3 that his symptoms are related to the cement dust, whether it is directly due to the irritant affect, which is, I suspect, what's causing it or possibly, to some contact sensitivity. I'm quite convinced that it is the cement dust gases and fumes that are causing difficulty. (Cl. 1, p. 3) Dr. Cooley summarized the claimant's situation in a letter addressed "To Whom It May Concern" on August 15, 1985: This is a 38 year old man who has been followed in this Clinic since 1970. He has been followed for recurrent sinus problems, nasal congestion, and nasal drainage. I first evaluated the man in 1983 when he came because of his nasal symptoms. Studies at that time showed minimal allergic reactions to some house dust antigens with no other significant findings. He's continued to have symptoms, increasing in nature and becoming more severe. He's had recurrent episodes of sinus infection, the most recent occurring in May of 1985. His physical examination is significant in that there is marked pallor of the nasal mucosa, marked swelling of the nasal mucosa and a very significant septal deviation present. He has difficulty getting any air through the right side because of the nasal septal deviation and because of the nasal polyp. X-rays have shown a chronic maxillary sinusitis. In reviewing his history and his physical examination, I believe that his nasal symptoms are due to the chronic exposure to cement dust and gases in his work situation. The symptoms occurred for the first time within three years of his first being employed at the plant. They have progressed in severity and in frequency throughout the years that he has been at the plant. His symptoms tend to improve on weekends, worsen when he returns to the plant in the beginning of the week. He's had at least one extended lay-off period due to a traumatic [sic] injury in late 1983 and early 1984, during which time he states that he cleared completely. I believe that at this time he needs to avoid any further exposure to the cement dust. We have suggested surgery for correcting the nasal septal deviation. We have suggested retraining into some other field of occupation. (Cl. Ex. 1, p. 5) Claimant testified that in August, 1985, he could not breath out of either side of his nose and that it became necessary to breath through his mouth. Dr. Cooley took the claimant off work on August 28, 1985, for a severe respiratory problem associated with exposure to cement dust (Cl. Ex. 1, p. 11). Claimant was referred to R. E. Schurtz, M.D., a surgeon, in OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 4 1983. Dr. Schurtz recommended surgery at that time for claimant's chronic sinus problems and septoplasty for the deviated septum to enable the claimant to breath (Cl. Ex. 1, p. 3). In September, 1985, the claimant decided to have the surgery done and it was performed at St. Joseph's Hospital in Mason City on September 26, 1985 (Cl. Ex. 1, pp. 12-16). On September 26, 1985, Dr. Schurtz found that claimant did not have any nasal passage at all on the left side and on the right side it was a very small inferior passageway (Cl. Ex. 1, p. 12). The presurgical impression and surgical plan of Dr. Schurtz were stated by him as follows: IMPRESSION: Severely deviated nasal septum and nasal obstruction. Nasal polyposis and chronic maxillary sinusitis. PLAN: Septoplasty. Polypectomy. Formation of nasal antral windows. (Cl. Ex. 1, p. 11) Claimant was discharged two days later on September 28, 1985. The discharge summary states claimant received a septoplasty for a nasal obstruction and rhinosinusitis and bilateral anterior meatal windows to correct a septal deviation that has plugged the claimant's nasal airway since birth (Cl. Ex. 1, p. 16). No polyp was found. Claimant, in his testimony, denied that he told Dr. Schurtz that he had this problem since birth. Claimant was returned to work by Dr. Cooley on November 22, 1985 (Cl. Ex. 1, p. 17). Neither Dr. Cooley nor Dr. Schurtz stated that the claimant was permanently impaired nor did either doctor assign any permanent impairment rating. Claimant testified that as a result of the surgery he can now breath out of both sides of his nose and that he can smell again. His tongue, which had become sore when he had to breath through his mouth, has cleared up also. There was no polyp, but Dr. Schurtz reconstructed the structure of his nose. Even though his breathing problems had been corrected, claimant felt that he did not believe he could work at the plant again. He was off work at the time of the hearing due to another work related injury for which a claim was pending. Due to the period of time he was off work claimant had lost his employee benefits. Claimant testified that he was exploring a new occupation. He had talked to vocational rehabilitation people and was considering going to college to learn teaching or banking. Claimant did not apply for a disability pension from the employer, but he did draw temporary disability benefits. Claimant conceded that his deviated septum might be a congenital problem or that he might have broken his nose at sometime earlier. He did not say how or when he first noticed it or when it occurred. Claimant testified that he personally paid $275.00 of OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 5 medical expenses to Dr. Cooley, Dr. Schurtz and J. H. Brinkman, M.D. Claimant testified that he had the cancelled checks at home, but that he failed to bring them to the hearing. The cancelled checks were not included in the exhibits. Claimant did not know how much he paid to each doctor. These expenses in the amount of $275.00 were like a deductible amount that he was forced to pay before the group medical insurance would pay. Other than this $275.00 all of his bills have been paid. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 28, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman V.Central Telephone Co., 261 Iowa 352, 154 N.W.2d l28 (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 5 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." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971), Musselman, 261 Iowa 352, 154 N.W.2d 128. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury.... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even OTTEN V. LEHIGH PORTLAND CEMENT CO. age 6 though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of August 28, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 7 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). An employer takes an employee subject to any active or dormant health impairments, and a work-connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. When an aggravation occurs in the performance of an employer's .work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, 595. Claimant established by a preponderance of the evidence that he sustained an injury on August 28, 1985. There was no evidence that this was an occupational disease. An injury to health may be a personal injury. The effect of cement dust on a claimant's nasal problems due to a deviated septum, sinusitis and rhinitis. comes about not through the natural building up or tearing down of the human body, but rather is something that acts extraneous to the natural processes of nature. Although it was not proven that cement dust caused the deviated septum, sinusitis or rhinitis, there was evidence that it aggravated the nasal problems which the claimant was suffering from these otherwise preexisting conditions. Dr. Cooley stated that he was convinced that cement dust gases and the fumes were causing breathing difficulties (Cl. Ex. 1, p. 3). Again, he stated in his letter of August 15, 1985, that the nasal symptoms are due to chronic exposure to cement dust and gases in his work situation (Cl. Ex. 1, p. 5). Dr. Cooley's medical opinion is weakened by the fact that he OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 8 gives no cause and effect relationship between cement dust and gases and the claimant's nasal problems. Dr. Cooley cites nothing from medical literature and he does not base his opinion on his own experience as a medical practitioner with,any other similar cases. on the contrary, his own laboratory tests showed that the claimant had no adverse reaction to nickel or chromium which are related to cement dust (Cl. Ex. 1, p. 3). The factual basis for his opinion, to wit: (1) that his symptoms first appeared within three years after being employed at the plant; and (2) that his symptoms were worse at the plant and less when he was away from the plant are not different from the opinion that any layman could give with the same information. Dr. Cooley gives no medical facts in support of his opinion and he gives no medical reasoning to support his opinion as to how or why cement dust or gases impaired or aggravated the claimant's condition. However, it is the opinion of a medical doctor. Also, it is the opinion of a medical doctor who specializes in allergy and pulmonary medicine. Therefore, it may be based upon medical knowledge and experience not expressed in his written notes or in his letter. In addition, it is the only evidence from a medical practitioner that directly addresses the issue of causal connection. It stands alone as the only medical evidence directly on this point. Dr. Cooley's opinion is not rebutted, controverted or contradicted by any other opposing medical evaluator. Dr. Schurtz did not purport to comment on the claimant's overall nasal complaints and their relationship to cement dust or gases. Dr. Schurtz simply describes the deviated symptom and the corrective measures he took to reconstruct the claimant's nose to eliminate his breathing problems which he thought the claimant had since birth. A number of doctors over the years at the Park Clinic in Mason City where Dr. Cooley is situated stated in their office notes that they suspected cement dust was a source of the claimant's nasal problems. Dr. Cooley had access to these historic comments. Also, Dr. Cooley's opinion is a very honest. and sincere opinion. Otherwise, he would not have recommended that a 38 year old man with a wife and two dependent growing children give up a good paying job and try to find another one away from cement dust and gases. This appears to be a cumulative injury that occurred over a period of time and therefore, it is correct to state that the injury date is the date the claimant was first forced to leave his employment which was August 28, 1985. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In conclusion, the claimant has established by a preponderance of the evidence that he did sustain an.injury on August 28, 1985 due to the aggravation of his nasal problems which were probably primarily caused by a deviated septum and other faulty structures in the claimant's nose that blocked his nasal air passage on the left completely and severely restricted the nasal air passage on the right side. The evidence of temporary disability is quite clear. Dr. Cooley ordered claimant to be off work due to severe respiratory OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 9 problems associated with exposure to cement dust on August 28, 1985 (Cl. Ex. 1, p. 11). He also ordered him to return to his regular duties on November 22, 1985 (Cl. Ex. 1, p. 17). This evidence is not rebutted, controverted or contradicted by any other medical evidence or any opposing physician. Therefore, claimant is entitled to temporary total disability from August 28, 1985 to November 22, 1985. It should be noted that defendants' exhibit 18 is a return to work slip signed by Dr. Cooley returning the claimant to regular duties on November 4, 1985 without any restrictions. However, at the hearing both parties seemed to be in agreement that the proper return to work date was November 22, 1985. Neither Dr. Cooley nor Dr. Schurtz made a finding of any permanent impairment or gave any impairment rating. There is no other evidence of permanent impairment in the record. Claimant testified that he has not tried to find any other employment since he left work on August 28, 1985 up until the time of the hearing on September 4, 1986. Therefore, of necessity, it must be determined that claimant has not sustained any permanent disability for this injury. Claimant, by his testimony which was not rebutted, established that he paid $275.00 in medical expenses from his personal funds in order to satisfy the deductible requirement of his group medical insurance policy. However, since he did not present written evidence or testimonial evidence of how much he paid to what doctors for what treatment, it is not possible for this decision to make a definite finding of his entitlement to medical expenses. However, it is found that he is entitled to recover any amount that he paid to Dr. Cooley for treatment on July 31, 1985 and August 14, 1985 for the aggravation of his breathing problems and defendants are ordered to pay him the reasonable costs of these two office visits. The claimant's payments to Dr. Schurtz are not recoverable because Dr. Schurtz treated him for the deviated symptom which was not proven to be caused by his employment with the employer. Claimant testified that he drove his own personal automobile to see Dr. Cooley from the plant and returned, a distance of four miles round trip, on July 31, 1985 and again on August 14, 1985. His entitlement then for his mileage expense is $1.92 (8 miles x $.24). The trips to Dr. Schurtz are not allowable as treatment for a work related injury. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant was employed by the employer from duly 23, 1968 until August 28, 1985. That since approximately 1970, claimant suffered nasal problems due to a deviated septum of unknown origin. He also suffered sinusitis and rhinitis since approximately 1970. OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 10 That a number of doctors at Park Clinic over the years who treated the claimant suspected that the breathing and nasal problems were associated with cement dust at the plant. That Dr. Cooley stated that his nasal congestion and drainage problems were due to chronic exposure to cement dust and gases and fumes encountered in his employment. That Dr. Cooley took him off work for the aggravation of his nasal condition on August 28, 1985 and returned him to work on November 22, 1985. That claimant had his deviated septum repaired and other nose reconstructive surgery on September 26, 1985. That this surgery corrected the claimant's breathing problems in both nostrils. That cement dust, gases and fumes at work did aggravate the claimant's preexisting condition of nasal problems due to a deviated septum, sinusitis and rhinitis. That there was no evidence from Dr. Cooley, Dr. Schurtz or any other medical practitioner that claimant suffered any permanent impairment nor was he given an impairment rating by any physician. That the claimant saw Dr. Cooley for the aggravation of his nasal condition on July 31, 1985 and August 14, 1985. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously stated, the following conclusions of law are made: That the claimant sustained an injury on August 28, 1985 due to an aggravation of his preexisting nasal problems due to a deviated septum, sinusitis and rhinitis. That the injury was the cause of temporary total disability from August 28, 1985 to November 22, 1985. That the claimant is entitled to 12 3/7 weeks of temporary total disability benefits from August 28, 1985 to November 22, 1985. That the claimant did not prove by a preponderance of the evidence that the injury was the cause of any permanent disability. That the claimant is not entitled to any permanent disability benefits. That the claimant is entitled to be reimbursed for the reasonable cost of his treatment by Dr. Cooley on July 31, 1985 and August 14, 1985. That the claimant is entitled to $1.92 in mileage expenses OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 11 to see Dr. Cooley on the above two dates. ORDER THEREFORE, IT IS ORDERED: That the defendants pay to the claimant twelve point four-two-nine (12.429) weeks of temporary total disability benefits for the period from August 28, 1985 to November 22, 1985 at the rate of three hundred twenty-two and 64/100 dollars ($322.64) per week for a total amount of four thousand ten and 09/100 dollars ($4,010.09). That the defendants are entitled to a credit in the amount of one thousand nine hundred fifty-five and 40/00 dollars ($1,955.40) under Iowa Code section 85.38(2) for disability benefits paid to the claimant under an employee non-occupational income disability group plan. That the defendants pay to the claimant the reasonable amount for the charges of Dr. Cooley on July 31, 1985 and August 14, 1985. That the defendants pay to claimant one and 92/100 dollars ($1.92) for his round trip mileage to see Dr. Cooley on the above dates. That the defendants pay these amounts in a lump sum. OTTEN V. LEHIGH PORTLAND CEMENT CO. Page 12 That interest shall accrue under Iowa Code section 85.30 on the temporary total disability amount. That the defendants will pay the costs of this action in accordance with Division of Industrial Services Rule 343-4.33, formerly Iowa Industrial Commissioner Rule 500-4.33. That the defendants file claim activity reports as required by Division of Industrial Services Rule 343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1. Signed and filed this 30th day of December, 1986. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Avenue Des Moines, Iowa 50309-3320 Mr. Jon Stuart Scoles Attorney at Law 30 Fourth St., N.W. P. 0. Box 1953 Mason City, Iowa 50401 1801; 1808.30; 1402.20 1402.30; 1402.40 Filed December 30, 1986 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LARRY D. OTTEN, Claimant, VS. FILE NO. 802386 LEHIGH PORTLAND CEMENT CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ 1801; 1808.30; 1402.20; 1402.30; 1402.40 Claimant with a deviated septum, sinusitis and rhinitis was found to have an aggravation of these preexisting conditions in the way of nasal congestion, drainage and sneezing by long-term exposure to cement dust, gases and fumes. Treating physician said it was causally connected. He was the only physician who expressed an opinion. Physician's opinion did not have a strong medical basis and appeared to be based on facts from which a layman could arrive at the same opinion, but it was the only opinion on causal connection. Claimant allowed 12.429 weeks of temporary total disability. No doctor said he was permanently impaired or gave a permanent impairment rating. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK E. INGERSOLL, Claimant VS. File No. 802399 SUNSHINE BISCUIT COMPANY, A P P E A L Employer, R U L I N G and TRAVELERS INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE The Veterans Administration (hereinafter VA) appeals from a proposed ruling denying the VA's claim for medical services provided to Frank E. Ingersoll. The deputy ruled that under Iowa Code section 85.26(4), the VA lacked standing to maintain a claim for medical services. The deputy also ruled that no statutory hospital lien in workers' compensation matters exists in Iowa law. Both parties filed briefs on appeal. ISSUE The VA states the following issue on appeal: "Did the Deputy Industrial Commissioner err in holding that SS85.26(4) precludes a direct action by the VA to recover for the value of medical services provided?" REVIEW OF THE EVIDENCE The VA has submitted a copy of a bill for medical treatment provided to Frank E. Ingersoll from March 18, 1985 to May 13, 1985. The total amount of this bill is $7,890.00. APPLICABLE LAW "No claim or proceedings for benefits shall be maintained by any person other than the injured employee, his or her dependent or his or her legal representative if entitled to benefits." Iowa Code section 85.26(4), 1983. The industrial commissioner has interpreted section INGERSOLL V. SUNSHINE BISCUIT COMPANY Page 2 85.26(4) in Poindexter v. Grant's Carpet Service and Milbank Insurance Co., Appeal Ruling, filed August 10, 1984. Appellant is a professional corporation seeking payment of medical costs incurred by Brian Poindexter, the injured worker. Appellant contends that Mr. Poindexter has executed a valid assignment of his workers' compensation medical benefits to the corporation, and it thus has an economic interest that renders it an indispensable party to the claim. The dispute arises from a petition and accompanying application for determination filed by the employer and insurance carrier which questioned the reasonableness of medical fees which were submitted in conjunction with a work injury. A previously filed memorandum of agreement has established an employment relationship between Poindexter and Grant's Carpet Service, and that the injury arose out of and in the course of employment. The employer's final report indicates that healing period and permanent partial disability benefits have been paid. It is established law that the claimant has the burden of proving his claim for benefits. By the filing of a memorandum of agreement, the injured worker is relieved of a showing that the injury was work related, but his burden of proving medical costs remains. If the injured employee seeks payment of medical benefits and the costs are in dispute, it is his responsibility, by statute, to initiate a proceeding which gives him the opportunity to prove his claim against the employer. He must show that the medical costs are causally related to the work injury and that they are reasonable and necessary. No party can make this showing for him, and the employer is under no obligation to render payment until the worker has sustained his burden. In the instant case, no claim for medical payment has been filed by Brian Poindexter. Review of the applicable statutory provisions reveals no statutory authority which gives P.S.I. standing to proceed under compensation law directly against the employer. The Iowa Supreme Court in Brauer v. J. C. White Concrete Co., 253 Iowa 1304, 115 N.W.2d 702 (1962) ruled that a party who rendered medical or hospital services could assert a claim therefor before the industrial commissioner. The legislature acted with utmost celerity to overturn the holding of the Iowa Supreme Court in the Brauer decision in the session of the general assembly immediately after the filing of the decision. They enacted: "No claim or proceedings for benefits shall be maintained by any person other than the injured employee his dependent or his legal representative, if entitled to benefits." Acts of the Regular Session 60 GA (1963), Chapter 87, SS3. This provision remains in the law today in the same form (although with gender reference corrected) as Code of Iowa section 85.26(4). INGERSOLL V. SUNSHINE BISCUIT COMPANY Page 3 Although appellant, like any creditor, has a financial interest in expediting a determination of payment due, such interest does not confer standing to participate in an action that has not properly been initiated or to attempt to relieve a potential claimant of his rightful burden of proof by initiating a discovery proceeding against the employer and the insurer. The deputy was correct in finding that P.S.I. is not a party to this action and has no standing to sue in claimant's name. See also Veteran's Administration v. Chase Manufacturing, Appeal Decision tiled September 9, 1987. ANALYSIS As indicated, the Poindexter rationale continues to be this agency's interpretation of section 85.26(4). The deputy was correct in ruling that the VA lacks standing to maintain their claim before this agency. This agency has no jurisdiction to interpret whether federal law preempts 85.26(4). WHEREFORE, the decision of the deputy is affirmed. THEREFORE, it is ordered that the Veterans Administration's petition for hospital lien is dismissed. Signed and filed this 29th day of October, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Steven L. Udelhofen Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 Mr. William D. Scherle Attorney at Law 803 Fleming Bldg. Des Moines, Iowa 50309 Mr. Ronald A. Bowerman Attorney at Law INGERSOLL V. SUNSHINE BISCUIT COMPANY Page 4 Veterans Administration 210 Walnut St. Des Moines, Iowa 50309 1402.60 - 2700 Filed October 29, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK E. INGERSOLL, Claimant, VS. File No. 802399 SUNSHINE BISCUIT COMPANY, A P P E A L Employer, R U L I N G and TRAVELERS INSURANCE, Insurance Carrier, Defendants. 1402.60 - 2700 Veterans Administration brought this proceeding to recover payment for medical services provided to Frank Ingersoll. Section 85.26(4) limits claims for benefits to injured employees. See Poindexter v. Grant's Carpet Service and Milbank Insurance Co., Appeal Ruling, filed August 10, 1984. See also Veterans Administration v. Chase Manufacturing Co., Appeal Ruling 1987. This agency does not have jurisdiction to determine whether federal law preempts 85.26(4). Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENNIS ANGERMAN, : : Claimant, : File No. 802436 : vs. : A R B I T R A T I O N : K-MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by claimant Dennis Angerman against defendant employer K-Mart Corporation to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on August 19, 1985. This matter came on for hearing before the undersigned in Sioux City, Iowa, on April 4, 1989. The matter was considered fully submitted at the close of evidence. The record in this proceeding consists of claimant's exhibits 1 through 13 and defendant's exhibits 1 through 11, both inclusive (an objection to defendant's exhibit 12 was sustained) and the testimony of the following witnesses: claimant, Dorothy Angerman, Debbie Angerman and Patricia Thomas. Defendant also filed a Motion to Strike claimant's response to request for admissions on the basis that the response was untimely served. Defendant's exhibit 11 shows that ten requests for admission were served on claimant's counsel on September 24, 1987. Claimant's answers to those requests are in the record as claimant's exhibit 4 and reflect service on March 31, 1989. Pursuant to Iowa Rule of Civil Procedure 127 each matter of which an admission is requested is admitted unless, within thirty days after service of the request the party to whom the request is directed serves a written answer or objection. Under I.R.C.P. 128 any matter so admitted is conclusively established in the pending action unless the agency on motion permits withdrawal or amendment of the admission. Claimant's answers to the request for admissions are clearly untimely. Claimant has not sought enlargement of the time to respond, nor has he sought permission to withdraw or amend answers. Therefore, defendant's Motion to Strike claimant's response is moot because the requests for admissions are deemed admitted by operation of law under I.R.C.P. 128. Mere service of untimely answers does not Page 2 operate as a withdrawal of the admissions. issues Pursuant to the prehearing report submitted by the parties and approved at hearing, the following issues have been stipulated: that an employment relationship existed between claimant and employer at the time of the injury; that claimant sustained an injury on August 19, 1985, arising out of and in the course of that employment; that the injury caused both temporary and permanent disability; that claimant's entitlement to compensation for healing period is from August 19, 1985 to November 26, 1985 and from November 17, 1987 to September 1, 1988; that the appropriate rate of compensation is $103.23; that all requested medical benefits have been or will be paid by defendant, except Edward N. Wiltgen, D.P.M., ($119.00) and Stone Avenue Medical Clinic ($185.00); that defendant paid healing period benefits to claimant per his stipulated entitlement at the stipulated rate prior to hearing. Issues presented for resolution include: the nature and extent of claimant's entitlement to compensation for permanent disability and the commencement date thereof; whether the two unpaid medical bills were incurred for reasonable and necessary treatment, were authorized, or are causally connected to the work injury. review of the evidence Claimant testified that his injury occurred approximately 4:00 p.m. while he was pushing a customer's motor vehicle that had stalled on a local highway. Claimant was attempting to steer the vehicle while two other individuals pushed; claimant slipped and fell and the car ran up on his left leg. Claimant had his leg cast and eventually underwent fusion surgery involving a bone graft from the hip. Claimant complains that he still has pain in the foot "like pins," and that his limitations include an inability to move the ankle to the right or left, extend the foot or pivot on the toe. Claimant stated that he also has problems with his hip when he stretches and that it is painful at the seam of his trousers. He indicated that the pain in his hip prevents him from undertaking some activities, but was not specific as to which. He also indicated that the hip and foot together cause him to limp. Among other physicians, claimant visited a podiatrist, Edward N. Wiltgen, D.P.M. Dr. Wiltgen's unpaid bill indicates that claimant was seen on September 12, September 18, December 26, 1986 and January 27, 1987. Total charges were $119.00. Claimant testified that he called defendant for authorization at the home office in Troy, Michigan before seeing Dr. Wiltgen and that the visit was authorized at that time. In addition, the individual to whom claimant spoke wanted to know if John J. Dougherty, M.D., (the primary treating physician) wanted claimant to visit the University of Iowa Hospitals and Clinics. Page 3 Claimant also testified by deposition taken March 22, 1989. His deposition testimony as to this authorization was as follows: Q. Did you clear that with K-Mart before you went to see Wiltgen or did you ask if he was an authorized doctor? A. From -- Yes. Yeah. I called Detroit, Michigan, I believe it was and asked at that time I think it was -- it wasn't Kathy View it was another lady. Maybe it was Kathy View at that time. I think it was. They got a Kathy DuPrie now. Q. That's the same girl now. She's married. A. Okay. Q. And before Kathy I think it was Jean somebody? A. Jeannie Ellof, E-L-L-O-F something like that. Q. What did Jean or Kathy tell you about going to see Wiltgen? A. They just said it was fine, and that was it. Q. Did they say fine, they would pay for his services then? A. Well, they said that they would have to find out, you know, if it was -- I more or less called to tell them I was going to have it done, to have it looked at because I was still having problems after going to Dr. Dougherty. (Dennis Angerman deposition, page 52, line 6 through page 53, line 5) When asked in his deposition if he had sought authorization before seeing Dr. Cunningham (Stone Avenue Medical Clinic, P.C.) claimant responded that he could not remember. Claimant testified to a number of misdemeanor convictions, none of which apparently involved a lack of honesty. Dorothy Angerman testified to being claimant's mother and a nurse for some 23 years. She indicated that claimant favors his left side, does not walk straight and complains of pain in his hip. She further indicated that claimant's iliac crest feels bumpy to her. Debbie Angerman testified to being claimant's wife since 1978. She indicated that claimant still complains of pain to the hip and foot, although the foot is much better and the ankle swells much less since fusion surgery. Page 4 Patricia Thomas testified to being defendant's personnel manager. She indicated that defendant had voluntarily paid two percent permanent partial disability of the foot prior to hearing. Claimant had conceded in his testimony having been paid benefits equivalent to two percent of the foot. Records of the University of Iowa Hospitals and Clinics reflect that claimant was first seen in October, 1987. Clinical notes of October 6, 1987 show that claimant was still complaining of pain and swelling and was extremely tender to palpation. X-ray revealed a questionable area in the joint space between the talus navicular and calcaneous which appeared to be sclerotic. Tomograms revealed what appeared to be a fracture through the anterior process of the calcaneous that had subsequently gone on to a vascular necrosis. Following unsuccessful and more conservative treatment, claimant underwent a subtalar arthrodesis on February 22, 1988. James Nepola, M.D., an assistant professor or orthopaedic surgery, noted a significant gap in the subtalar joint region and elected to take a bone graft from the left iliac crest. A 4 centimeter incision was created and carried down to expose the iliac crest. Dr. Nepola wrote claimant's attorney on February 14, 1989. He opined that claimant had sustained a permanent partial impairment of 15 percent of the lower extremity translated into 6 percent of the body as a whole. He noted that one who has a fused subtalar joint loses some of the flexibility in the foot impairing the ability to easily negotiate uneven terrain. One has difficulty going from side to side, especially when not standing straight up. While noting that this will pass with time, claimant would still notice slight difficulty over uneven ground. The impairment rating was prepared pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, Second Edition, and "takes into account both the fused subtalar joint and the hip discomfort that he has." applicable law and analysis The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment and that the injury is causally related to both temporary and permanent disability. Further, the parties have stipulated to the extent of claimant's temporary impairment, or healing period. To determine the extent of claimant's permanent disability, it is first necessary to determine whether claimant is to be compensated for a scheduled member disability or on an industrial basis for an injury to the body as a whole. If claimant's injury only impairs a scheduled member, he is limited to disability benefits based upon the schedule only, regardless of what industrial disability he may have Page 5 sustained. Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Claimant's initial injury was to the lower extremity. To be compensated industrially, claimant must establish either that the injury or its sequelae have caused him impairment to the body as a whole, or that the surgical intrusion to the iliac crest for a bone graft so extends the injury. Claimant complains of pain to the hip. Dr. Nepola based his impairment rating in (undisclosed) part on impairment to the hip, but did so only on the basis of "discomfort." However, absent objective findings, pain is not equivalent to impairment. Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner Report 419 (1981). While the hip is not a scheduled member but is part of the body as a whole, Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986), there must be a finding of impairment to the hip beyond merely pain in order to find that claimant's impairment extends to the body as a whole. For example, pain in the forearm arising from carpal tunnel syndrome has been found not to extend the injury into the arm from the hand absent evidence of impairment to the arm. Streeter v. Iowa Meat Processing Co., file number 730461 (App. Decn. March 31, 1989). It has been held that a skin graft from the hip to the hand did not, in the absence of earning capacity, convert a scheduled member injury to a body as a whole injury. Lauden v. Walker Mfg. Co., I Iowa Industrial Commissioner Report 202 (1981). Similarly, a bone graft from the wrist Dr. Nepola rated claimant in part on hip "discomfort." Claimant continues to complain of hip discomfort. However, as has been seen, complaints of pain alone are not indicative of impairment in the absence of objective findings. In this case, there are no such objective findings. Claimant has failed to establish that his injury extends to the body as a whole. Both the foot and leg are scheduled members. See Iowa Code section 85.34(2)(n) and (o). The subtalar area is in the ankle between the talus and calcaneous. As the wrist is considered part of the hand as opposed to the arm, Elam v. Midland Mfg., II Iowa Industrial Commissioner Report 141 (1981), extending to the distal end of the radius and ulna, it must also be held that the ankle, at least distal to the fibula and tibia, is part of the foot rather than the leg. The only physician of record to have rated claimant's impairment is Dr. Nepola. He found that claimant had sustained an impairment of 15 percent of the lower extremity (leg). Unfortunately, Dr. Nepola did not separate out the portion of that impairment rating attributable to the subtalar fusion as opposed to "hip impairment," even though he specified that both factors were taken into account. Dr. Nepola did cite the American Medical Association Guides to the Evaluation of Permanent Impairment in forming his Page 6 opinion. Under the guides, a 15 percent impairment of the lower extremity is equivalent to a 21 or 22 percent impairment of the foot. Given that some unspecified portion of Dr. Nepola's impairment rating was based on hip discomfort, but on the further assumption that mere discomfort without quantifiable loss of range of motion was a minor factor, it is held that claimant has established a 20 percent impairment of his left foot by reason of this work injury. Compensation is payable during 150 weeks for the loss of a foot under Iowa Code section 85.34(2)(n). Therefore, claimant shall be awarded 30 weeks of permanent partial disability benefits. Also to be determined is whether claimant's medical expenses with Dr. Wiltgen and Stone Avenue Medical Clinic are payable under Iowa Code section 85.27. Under that section, the employer has the right to choose the care. Claimant has not applied for alternate care and it has not been shown that the care was provided in an emergency. Therefore, these expenses are compensable only if authorized by defendant, although unauthorized treatment which improves an employee's condition and ultimately may mitigate the employer's liability may subsequently be found reasonable and necessary for treatment of an injury. Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (1983). Defendant disputes that authorization was granted with respect to either of these bills. Neither course of treatment has been shown to have improved claimant's condition. With respect to Stone Avenue Medical Clinic, claimant admitted in his deposition that he could not recall whether he had sought authorization. With respect to Dr. Wiltgen, claimant testified at hearing that he had obtained such authorization by telephone, but this is inconsistent with his deposition testimony, where he indicated that he "more or less called them to tell them I was going to have it done" and defendant's representative indicated "that they would have to find out, you know, if it was." This implies to any reasonable person that authorization had not been granted, but would only be considered. Claimant's deposition was taken on March 22, 1989, shortly before his testimony at hearing. The inconsistency remains unexplained. Some of claimant's other testimony was inconsistent with his deposition (for example, whether he finished tenth grade or not). Claimant's testimony at hearing indicated that he has a poor memory. On this basis, his credibility is suspect. However, the undersigned has not considered claimant's criminal record as undermining his credibility, since none of his convictions appeared to reflect adversely on his personal honesty. Nonetheless, given his credibility problems by reason of poor memory, it is held that claimant has failed to meet his burden of proof in establishing that Dr. Wiltgen's medical treatment was authorized by defendant. Therefore, claimant's claim for benefits under Iowa Code section 85.27 fails. As indicated in the Statement of the Case above, claimant has been held to have admitted certain facts by Page 7 reason of his untimely response to a request for admissions. However, all of those admissions relate to claimant's potential industrial disability, and are not relevant to this decision because industrial disability has not been awarded, since claimant has shown only that he sustained a scheduled member injury. findings of fact THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant sustained an injury arising out of and in the course of his employment with defendant on August 19, 1985. 2. As stipulated, claimant's injury caused a healing period from August 19, 1985 to November 26, 1985 and from November 17, 1987 through September 1, 1988, for which claimant has previously been compensated. 3. Claimant's injury was an injury to the left foot to the extent of 20 percent of that scheduled member. 4. As stipulated, claimant's appropriate rate of weekly compensation is $103.23. 5. Defendant has not been shown to have authorized claimant's alternate medical care with Dr. Wiltgen and Stone Avenue Medical Clinic. 6. Defendant has compensated claimant prior to hearing for his healing period benefits and to the extent of two percent of the foot, or three weeks. conclusions of law WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Claimant has met his burden of proof in establishing a permanent partial disability to his left foot of 20 percent by reason of his stipulated work injury of August 19, 1985. 2. Claimant has failed to establish his entitlement to medical benefits under Iowa Code section 85.27. order THEREFORE, IT IS ORDERED: Defendant shall pay to claimant thirty (30) weeks of permanent partial disability at the stipulated rate of one hundred three and 23/100 dollars ($103.23) per week commencing September 2, 1988. Defendant shall be entitled to credit of three (3) weeks of permanent partial disability benefits paid voluntarily prior to hearing. Page 8 As all benefits have accrued they shall be paid in a lump sum together with statutory interest. Costs of this action shall be assessed to defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert L. Sikma Attorney at Law 402 Benson Building Page 9 Sioux City, Iowa 51102 Mr. Joel T. S. Greer Attorney at Law 112 West Church Street Marshalltown, Iowa 50158 1803, 1803.1, 2906 Filed February 20, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : DENNIS ANGERMAN, : : Claimant, : File No. 802436 : vs. : A R B I T R A T I O N : K-MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 2906 Untimely response to request for admissions did not operate to withdraw the admissions, which were deemed imposed by operation of law under Iowa Rule of Civil Procedure 127 and 128. Motion to Strike the untimely response was therefore moot. 1803.1 Bone graft taken from hip, causing pain but no impairment, did not convert ankle injury to body as a whole. 1803 Ankle held part of the foot, not leg.