BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY MILLIGAN, Claimant, VS. File No. 804023 BLACK HAWK COUNTY, IOWA, A R B I T R A T I O N Employer, D E C I S I O N and U.S. FIDELITY & GUARANTY CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Betty Milligan, claimant, against Black Hawk County, employer, and U S F & G, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury of September 4, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner on February 6, 1989 and was con- sidered fully submitted upon the close of the record. The record in this case consists of the testimony of claimant, Sheila Wilcox, her daughter, Sharon Little, and Tom Pounds; and Joint Exhibits 1 through 4, inclusive, except for the report of John Walker, M.D., dated January 19, 1989 and the statement of Orthopaedic Specialists dated January 4, 1988, as those were offered beyond the deadline for exchanging exhibits as set by the hearing assignment order. ISSUES Pursuant to the prehearing report and order submitted and approved February 6, 1989, the following issues are presented for resolution: 1. Whether the injury of September 4, 1985 is causally connected to the disability on which claimant now bases her claim; MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 2 2. The extent of claimant's entitlement to weekly benefits including temporary total disability/healing period and permanent partial disability benefits; 3. The nature of claimant's permanent partial disability, if any; 4. Claimant's entitlement to certain medical benefits as provided by Iowa Code section 85.27; and 5. The applicability of the odd-lot doctrine. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of her employment on September 4, 1985, when, while attending to an 18 year old resident, she fell onto a dresser and heard her back "pop." Claimant testified she felt "real bad" pain in her lower back and down her left leg. Claimant recalled she finished her shift that evening and then went to Urgent Care where she was advised to remain off work for one week. Claimant stated that she was not getting any better staying home and that she did return to work approximately one week later, but that her back kept getting progressively worse through December of 1985. Claimant submitted her resignation to defendant employer effective December 13, 1985 because she "was not feeling good," her "back hurt," and her doctor wanted her to quit "approximately 20 years ago." Claimant's notice of resignation states she left her employment because "Dr. Roth advised due to my present health status I am unable to work." Claimant acknowledged she has had a diabetic condition for about 17 years which is "pretty well" under control and has had failing eyesight since 1985 but that neither condition has stopped her from doing her work. Claimant testified that since she quit she has gotten worse with regard to her back, that she cannot dress herself from the waist down, cannot "walk far," cannot stand long enough to do dishes, and is able to do "very little" around the house. Claimant asserted that if her back was better she could return to work. On cross-examination, claimant revealed that she has had problems with her legs and feet as a result of poor circulation but that that condition is not now "any worse than it ever was" and that walking became difficult for her "quite a long while ago." Claimant admitted her vision problems began in 1985, that she has had laser treatments therefor and that "beginning a couple of years ago" she can read just the bold type in the newspaper. Claimant acknowledged she has not followed her diabetic diet strictly through the years and that she has been "rapidly going down." Claimant testified she saw a health care MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 3 provider specifically for her back on only two occasions (at the Urgent Care center immediately after the injury and again at the Urgent Care center to get a release to return to work) and has not requested any authorization from defendant to seek additional medical care. Claimant was asked about injuring her back at home on September 9, 1985 while doing laundry but could not recall any such incident although she did not deny it may have happened as she supposed she "may have done laundry" while off work with her back injury. Claimant acknowledged that when she was released to return to work it was to full duty, without restriction or limitation, and that she was able to do her job without missing any work due to her back up until the time she resigned her employment. Sheila Wilcox, who identified herself as claimant's daughter, testified that she lives with her mother and was aware claimant injured her back on September 4, 1985. Ms. Wilcox stated claimant's back has gotten worse, that she cannot do "really anything," has to sit on a folding chair in the shower, and that claimant did not, when she came home from work, feel like doing much because her back hurt. Ms. Wilcox stated claimant had no back complaints prior to the injury of September 4, 1985 and that although claimant was complaining that her eyes were getting worse, she was not complaining of a loss of feeling in her legs and feet. Sharon Little, who identified herself as a registered nurse and claimant's supervisor for three years (although she is not currently employed), testified that claimant was an average to below average employee who experienced difficulty doing her job in that her diabetic condition and circulatory problems made walking difficult and her vision did not allow her to see labels. Ms. Little stated that claimant's health problems were always present and were worse toward the end of her employment. Ms. Little testified that claimant did not complain about her back hurting, did not ask to see a doctor for her back, and did not ask for a change in her duties because of her back. Ms. Little expressed her understanding that claimant resigned her employment due to diabetes, her eyes, and poor circulation and that she did not feel claimant's back was any problem. Tom Pounds, who identified himself as the personnel and affirmative action director for defendant employer, testified that subsequent to the Urgent Care given claimant in September of 1985 claimant made no other requests for treatment or for lighter or restricted duty. Mr. Pounds testified to his understanding that claimant left her employment due to diabetes and not her back. MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 4 Claimant sought social security disability benefits describing her disabling condition as "diabetes - complicated by oncoming blindness and numbness of extremities." Although originally denied these benefits, by decision of the administrative law judge on October 1, 1986, claimant was found entitled to a period of disability commencing September 14, 1985 on the basis that "the claimant would be unable to perform more than a limited range of light work and that because of her visual acuity, there would not be a significant number of jobs in existence in the economy which she could perform." (Joint Exhibit 1, page 54) Claimant's regular physician, Ronald R. Roth, M.D., summarized her medical condition in a letter dated June 26, 1986 as: Mrs. Milligan suffers from exogenous obesity. She has attempted to diet but has not been successful. The exogenous obesity limits her ability to bend, lift and to have prolonged standing. It also aggravates or ac- centuates her diagnosis of essential hypertension and diabetes. She is working hard on the problem and is being followed in Iowa City for this as well. Mrs. Milligan also suffers from essential hyperten- sion. Her blood pressures [sic] are controlled at this time in the range of 138/86. The patient suffers from diabetes mellitus, type I, or insulin dependent diabetes. She has had the compli- cations of diabetes to include eye problems, as noted in the records from Iowa City. These eye problems make it difficult for her to see well. I feel she is limited in driving as she states that she cannot see well enough to drive, and based on her reports from Iowa City this seems entirely realistic. She feels the eye problem are becoming worse. The patient is presently being actively followed in the Iowa City Diabolic Clinic, because of the difficul- ties in control and the difficulties with her complica- tions. Complications also include diabetic neuropathy. This is manifested by numbness of her ankles. This makes it difficult for her to walk as she is uncertain as to ground contact. These problems occasionally improve with improved diabetic control or other medica- tions, but very often do not. The patient is not, at this point, improved. The patient also suffers from peripheral vascular disease which I believe is associated with her diabetes. I have not been able to find good MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 5 circulatory pulses in her feet. The patient reports that Iowa City was also unable to find pulses. She continues on a variable dose of insulin trying to achieve as good a control as possible, and her medications continue to be adjusted by Iowa City. The patient also suffers from a chronic low back pain manifested by pain in the sacroiliac joints, going down her leg on the left side. Iowa City has found no evidence of a disc, and I feel this is mechanical low back pain. Mechanical low back pain occurs because of her posture, obesity and degenerative changes associ- ated with age. The patient should not do any bending, which she is unable to do, because of her obesity and the chronic low back pain. I do not expect this to improve. The patient does not suffer from back or injured toes at this time, but I feel this is because she is not working, does not expose them to damage and is able to rest. The patient should avoid prolonged standing or any type of activity that would cause damage to her feet, as with her diabetic neuropathy she cannot feel the feet well, and with her poor pulses she would tend to heal very-slowly and with great difficulty. (Jt. Ex. 3A, p. 9-10) On September 12, 1986, Dr. Roth advised claimant's counsel: Mrs. Milligan has been seen in my office for back pain. The back pain has occurred since last April when she was injured at work. She was lifting up a patient, leaning forward, and developed back pain. The patient was a retarded patient who was not cooperative and made a rapid body motion, ie: flipped herself over as Mrs. Milligan was attempting to move her. She continues to have pain located in the low back on the left side, moving up the lateral aspect of her back on the left, and into her hip. She had returned to work because she had expected and hoped the pain would simply go away. The pain has not. She was seen in my office in April of 1985, ini- tially having been seen at an Urgent Care Center. We sent her to Mr. Bedard for physical therapy. I felt MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 6 that she had a probable disc of sacroiliac.strain, im- proving, and she returned to work in May of 1985. (Jt. Ex. 3A, p. 11) Dr. Roth's office note of November 7, 1985 reports that: States that Social Security told her that if she is on disability she could work and earn up to 299.99 a month and still [sic] receive her disability check she cannot live on the disability check alone and she would like to work part time, I see nothing wrong with this, although I do feel that she is disabled secondary to her diabetes, hypertension, obesity and now bleeds in the eye, she also has had diabetic neuropathy and peripheral vascular disease. (Jt. Ex. 3A, p. 5) John R. Walker, M.D., of Orthopaedic Specialists, in Waterloo, Iowa, saw claimant for a "final examination" on November 4, 1987 and reported: As a recapitulation we might state that on or about September 4, 1985 she was working at the Black Hawk County Health Center which is now Pinecrest, helping an 18 year old girl who was mentally retarded. Actually she was diapering her. At that moment, while she had one side of the diapering finished the patient then dug her heels into the bed mattress and flipped over and then flipped Betty Milligan as well. In this process, she severely twisted her low back which, of course, has given her trouble in this left sacroiliac region since this time. Examination today reveals that the patient is still quite overweight and she still has her diabetic problem, of course. She is areflexic in the lower extremity including the patellar, ankle and plantar reflexes. She has no atrophy of either calf and she has lost a good deal of sensation below the knees of both legs. The patient states, however, that this has been going on for some time.and is.a result of her diabetes. .... AP & lateral, right, left, oblique views and spot views of the lumbar spine reveal no significant change since her original x-rays. They appear to be MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 7 essentially within normal limits for a l day [sic] of this age. OPINION: The diagnosis here, of course, is still a severe and chronic, painful left sacroiliac joint with telalgic radiation to the left, lower extremity. The patient obviously has some added disability and I do not know anything more to do for her at this time. From an orthopedic standpoint I would state that her permanent, partial impairment and/or disability amounts to approximately 12% of the body as a whole. This, of course, must be added to her diabetic problems and other general health problems. (Jt. Ex. 3F, pp. 5-6) 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). The parties do not dispute that on September 4, 1985 claimant sustained an injury which arose out of and in the course of her employment. The essential question presented for resolution is whether claimant has shown a causal connection between this injury and the disability on which she now bases her claim. The claimant has the burden of proving by a preponderance of the evidence that the injury of September 4, 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). 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 MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 8 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). As the question of causal connection is essentially within the domain of expert testimony, attention is first turned to the medical opinions of Drs. Roth and Walker. Dr. Roth found claimant to be suffering from mechanical low back pain which "occurs because of her posture, obesity and degenerative changes associated with age." When Dr. Roth rendered this opinion in June 1986, he did not associate claimant's problems with her employment in any way. In September of 1986, Dr. Roth makes note of an incident "last April when she (claimant) was injured at work." It is unclear to what Dr. Roth refers since claimant was not employed by defendant in April of 1986 (having last worked in December 1985) and claimant seeks benefits herein as a result of an injury in September 1985 rather than April. Initially, it may be thought that Dr. Roth merely mixed up dates; however, his office notes of April 25, 1985 indicate that claimant was "Seen with pain low back on the right, goes down the back of her leg, worse when she bends over to pick-up children at work." (Jt. Ex. 3A, p. 4) It must therefore be concluded that Dr. Roth's opinions cannot support claimant on the question of causal connection as Dr. Roth does not associate any disability which claimant may have to any work injury of September 4, 1985. A review of the opinions of Dr. Walker also does not lend credence to claimant's position on causal connection. Dr. Walker's initial consultation report dated January 22, 1987 shows that claimant was complaining of "severe radiculitis of the left upper extremity and a lot of neck pain" and Dr. Walker commented: My exam today reveals her neck motion is rather markedly limited. All flexion and extension is more or less cogwheel and she complains of pain going down the upper arm not well localized on the left side, however.... Basically, I would treat her symptomatically until you can get her over this severe pain. We should order a MRI of the cervical spine next Wednesday. (Jt. Ex. 3F, p. 2) Dr. Walker diagnosed "cervical disc herniation with left upper extremity radiculitis" and it was not until April 13, 1987 MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 9 that Dr. Walker refers to any back pain. He reported at that time: Now she has a very bad low back ache, left sacroiliac and lumbosacral as well and this is really a problem for her. She is a diabetic and we can't really do too much about it medically but we can give her some Motrin and certainly we can give her a back support. (Emphasis added) (Jt. Ex. 3F, p. 1) In July 1987, Dr. Walker advised claimant's counsel that: "You will see in my latter examinations that the patient had sacroiliac pain radiating in to the left buttock again but I have not made any real determination concerning this patients alleged workmen's [sic] compensation injury. (Jt. Ex. 3F, p. 3) Dr. Walker saw claimant in August and still had not indicated his opinion on causal connection. It was not until after the "final examination" of November 4, 1987 that Dr. Walker refers to the injury and September 4, 1985 and the fact that claimant's low back had given her trouble in the left sacroiliac region since that time. Dr. Walker's comments in his letter of November 4, 1987 are inconsistent with earlier comments; his records reflect an indecision in July of 1987 concerning a causal connection and yet a finding thereof in November 1987 is made without any apparent explanation for his conclusion. Therefore, the undersigned cannot conclude that Dr. Walker's opinion lends credence to claimant's assertions on the question of causal connection. A review of the other medical records submitted also do not support claimant's position. Accordingly, as the expert testimony does not support claimant's contention, attention is given to other evidence in the record. What this record establishes is that claimant was injured on September 4, 1985, was seen at Urgent Care on that date, and returned to work on September 12, 1985 having secured a release from Urgent Care without restriction or limitation. The record establishes that claimant continued to work in her regular job as a nurse's aide until her resignation effective December 13, 1985; that claimant did not miss any work on account of this injury after she returned to work on September 12, 1985; that claimant did not request any change in her duties or make any specific complaint to supervision about her back or any back pain; and that claimant did complain about her other physical impairments. Claimant also reported to her employer on September 10, 1985 that she "couldn't come into work tonite 9-9-85 11-7 as she hurt her back again doing some laundry - stated she would see Dr. again." (Jt. Ex. 2, p. 10) Claimant did not deny this occurred and the MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 10 medical evidence does not refer to any such intervening incident thereby causing a question as to whether the physicians had a complete and accurate history. It is therefore questionable whether claimant's problems are causally connected to what occurred at work, what occurred at home or are simply attributable to the fact that claimant is generally in poor health. Claimant has been diabetic for approximately 17 years and candidly acknowledged that she has not always taken proper care of herself. Claimant suffers from serious visual acuity problems as well as circulatory problems in her legs which result in numbness in the extremities and swelling of her feet. Sharon Little, who was claimant's supervisor, had the opportunity to observe claimant's progress throughout claimant's period of employment and testified to claimant's rapid deterioration in the months just prior to claimant's separation from employment. Dr. Roth also makes note of claimant's deterioration during late 1985. Claimant repeatedly identified her diabetic condition (and the ramifications thereof) as the cause of her disability and not any work injury of September 4, 1985. Yet, at the same time, claimant asserts that if her back is better she could return to work. Claimant appears to change her reasons for her disability with each change in benefits tribunal. Claimant's inconsistencies simply do not instill credibility. The greater weight of evidence therefore fails to show that the injury of September 4, 1985 is causally connected to the disability on which claimant now bases her claim. Accordingly, except for an entitlement to a period of temporary total disability, claimant has failed to establish the requisite causal connection and shall take nothing from these proceedings. Iowa Code section 85.33 provide, in part, that an employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits until the employee returns to work or is medically capable of returning to substantially similar employment. Iowa Code section 85.32 dictates that compensation shall begin on the fourth day of disability after the injury. There is no dispute that claimant was injured in an incident arising out of and in the course of her employment on September 4, 1985 or that the dispute caused a period of temporary disability. As previously noted, claimant was injured on September 4, 1985 and returned to work without limitation or restriction on September 12, 1985. Claimant has failed to show entitlement to any other temporary or permanent disability benefits. In accordance with the above referenced section of the Iowa Code, claimant would be entitled to temporary total disability benefits for the five days of September 7, 8, 9, 10 and 11. MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 11 The Form 2a filed by defendants with the industrial commissioner on October 15, 1985 shows claimant was paid temporary total disability benefits for this period of time. Therefore, claimant is not entitled to anything further as a result of these proceedings. The final issue for resolution is the extent, if any, of claimant's entitlement to benefits under Iowa Code section 85.27. That section of the law provides, in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses in- curred for such services. The record establishes defendants have paid for the medical expenses incurred with Urgent Care and with Dr. Roth for the treatment of claimant's back condition. Claimant specifically requests payment of Dr. Walker's bill in the amount of $741. The employer, having accepted this injury as compensable, has the right to direct the medical care. Claimant did not request authorization from defendants to seek treatment with Dr. Walker. Indeed, subsequent to her care at Urgent Care, claimant made no request for any further treatment for her back. Claimant has failed to show, therefore, that Dr. Walker's care was authorized. Claimant has failed to show such care was causally connected to her injury and further has failed to show that Dr. Walker's care improved her condition. Accordingly, defendants are exonerated from the payment of Dr. Walker's bill. In light of the above, no other issue presented for resolution need be addressed. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made. 1. Claimant sustained an injury which arose out of and in the course of her employment on September 4, 1985, when, while attending to an 18 year old resident, she fell onto a dresser and injured her back. 2. Following her shift, claimant was seen at Urgent Care and advised not to return to work for one week. 3. Claimant remained off work until she returned on September 12, 1985 without limitation or restriction. MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 12 4. While off work as a result of this injury, claimant advised defendant employer that she had injured her back at home while doing laundry. 5. After claimant returned to work, she continued to work in her regular job as a nurse's aide until her resignation on December 13, 1985. 6. Claimant did not miss any work on account of her injury after her return of September 12, 1985. 7. Claimant did not request any change in her duties or make any specific complaint to supervision about her back or any back pain. 8. Claimant did make complaints concerning her other physical impairment. 9. Claimant has been diabetic for approximately 17 year and has not always taken proper care of herself. 10. Claimant suffers from serious visual acuity problems as well as circulatory problems in her legs which result in numbness in the extremities and swelling of her feet. 11. Claimant was diagnosed by her regular family physician as having mechanical low back pain which he attributed to posture, obesity and degenerative changes associated with age. 12. Medical evidence submitted fails to show claimant's disability is causally connected to the injury of September 4, 1985. 13. Claimant has shown an entitlement to temporary total disability benefits for five days from September 7 through September 11, inclusive. 14. Claimant has failed to show that the injury of September 4, 1985 resulted in any permanent disability. 15. The employer, having accepted claimant's injury of September 4, 1985 as compensable, has the right to control and direct the medical care. 16. Claimant failed to show Dr. Walker's care, whose bill she seeks payment, was authorized, that it was causally connected to her injury, or that Dr. Walker's care improved her condition. MILLIGAN V. BLACK HAWK COUNTY, IOWA Page 13 CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made. 1. Claimant has failed to show that the injury of September 4, 1985 is the cause of the disability on which she now bases her claim. 2. Except for a five day period of temporary total disability, for which claimant has already been compensated, claimant has failed to show an entitlement to any further benefits either weekly or medical. ORDER THEREFORE, it is ordered: As the record has shown claimant has already received all that to which she is entitled, claimant shall take nothing further as a result of these proceeding. Costs are assessed against defendants, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 19th day of January, 1990. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr John S Pieters Attorney at Law 2315 Falls Ave Ste 3 Waterloo IA 50701 Mr David R Mason Attorney at Law 315 Clay St P 0 Box 627 Cedar Falls IA 50613 1108; 1803 Filed January 19, 1990 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY MILLIGAN, Claimant, VS. File No. 804023 BLACK HAWK COUNTY, IOWA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and U.S. FIDELITY & GUARANTY CO., Insurance Carrier, Defendants. 1108; 1803 Claimant denied benefits over and above temporary total disability already paid as she failed to establish a causal connection between injury and disability. Claimant has been diabetic for 17 years, has not taken very good care of herself, and suffers from serious visual acuity problems, as well as circulatory problems in her legs which result in numbness in the extremities and swelling in her feet. Following the work injury, claimant was released to return to work without restriction or limitation, never missed any work due to her back, never made any complaint about back problems and had an incident at home involving back strain. Claimant failed to establish requisite causal connection to alleged disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY L. FERRISS, Claimant File Nos. 804053 825705 vs. 840448 DAHL'S FOODS, INC., A R B I T R A T I O N Employer, D E C I S I 0 N and F I L E D MARYLAND CASUALTY COMPANY, JUN 28 1989 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in arbitration brought by Jerry L. Ferriss, claimant, against Dahl's Foods, Inc., employer, and Maryland Casualty Company, insurance carrier, defendants, for benefits as the result of three separately reported lower back injuries: (1) August 23, 1985 (file number 804053); (2) May 20, 1986 (file number 825705); and (3) June 16, 1986 (file number 840448). A hearing was held in Des Moines, Iowa, on May 18, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Jerry L. Ferriss, claimant, David Johnson, store manager, William Nordstrom, vocational rehabilitation specialist and Kenneth C. Stroud, executive vice president, and joint exhibits 1 through 8. Claimant was represented by Jim R. Lawyer. Defendants were represented by Richard G. Book. Both parties ordered a transcript of the hearing and a copy was supplied for the industrial commissioner's file. Claimant presented a statement of position and trial brief at the time of the hearing and also a posthearing brief. Defendants submitted a posthearing brief. All of these documents by both attorneys were comprehensive, informative, succinct and helpful. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of all three injuries. That claimant sustained injuries on August 23, 1985, May 20, 1986, and June 16, 1986, which arose out of and in the course of employment with employer. That no claim is made temporary disability benefits for the injuries which occurred on August 23, 1985 and May 20, 1986, even though claimant lost a few days from work due to these injuries. That the injury of June 16, 1986 was the cause of temporary disability. That claimant was off work from June 17, 1986 to February 23, 1987 and that this is the only period for which claimant seeks either temporary total disability or healing period benefits. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That claimant's need for back surgery and the resulting impairment of 7 percent to the body as a whole is the result of claimant's injury which occurred in June 16, 1986 for the purpose of determining industrial disability and there is no need to allocate the impairment over all three injuries. That the commencement date for permanent disability benefits and the so-called conversion date from temporary to permanent disability benefits is to be based on the injury of June 16, 1986. That the rate of compensation is to be based upon the earnings of claimant at the time of the injury of June 16, 1986. That claimant is married and is entitled to five exemptions. That the provider of medical services and supplies would testify that the fees charges are reasonable and defendants are not offering contrary evidence. That the provider of medical services would testify that the treatment was for reasonable and necessary medical treatment for the work injury. That defendants make no claim for credit under Iowa Code section 85.38(2) for employee nonoccupational group health plan benefits paid prior to hearing. That defendants paid claimant 58 1/7 weeks of workers' compensation benefits at the rate of $278.44 per week prior to hearing and that defendants are entitled to a credit for these benefits which.were paid prior to hearing. That there are no bifurcated claims. That employer will pay the mileage claims made by claimant, which are attached to the prehearing report, in the amount of $101.10 and that this is no longer a disputed issue in this case (exhibit 2, pages 1 & 2). ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant is entitled to temporary disability benefits for the period from June 17, 1986 to February 23, 1987. Whether the injury of June 16, 1986 was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which he is entitled. What is the proper rate of compensation. Whether claimant is entitled to certain medical expenses. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13. Whether claimant's attorney should be sanctioned under Iowa Rules of Civil Procedure 80 for asserting a claim for Iowa Code section 86.13 penalty benefits on the original notice and petition on January 7, 1987 when workers' compensation benefits were being paid at that time. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant is 28 years old, married and has three dependent minor children. Claimant completed the eleventh grade of high school, quit school, got married and started to work for employer on February 20, 1978. He has no additional formal education or training. This employment has been his only full-time employment during his entire adult working lifetime of approximately 11 years. Foods, Inc., where that term is used, means the Dahl's grocery store chain in Des Moines, Iowa. Claimant has always worked at the Merle Hay store. Claimant's job was described variously as: (1) night stock; (2) night stock person; and (3) night stock clerk. This job was described as: (1) unloading pallets of groceries in boxes from a semi truck with a hydraulic floor jack; (2) removing the boxes of groceries by hand from the pallets and stacking them on the floor according to which aisle they are to be taken to; (3) delivering the stacked boxes of groceries by a two wheel cart and spotting them in front of the shelves where they are to be stocked; and (4) stocking the shelves. The night stock person also crushes the boxes, and performs night cleanup which involves sweeping, dusting, mopping, stripping and waxing the floors and cleaning the restrooms. The average box of groceries weighs approximately 40 pounds. Some boxes weigh as much as 80 pounds. Claimant has always worked on the night shift from 10 p.m. to 6:30 a.m. (ex. 8, pp. 2-14; transcript pp. 31-36). Claimant injured his back on August 23, 1985 while removing boxes from the pallet and stacking them on the floor in front of the meat counter. He bent over to pick up a box and felt a sudden sharp pain in his lower back on the right hand side. He reported this injury to his boss and saw J.W. Hatchitt, D.O., on August 26, 1985. Claimant was off work from August 27, 1985 to August 29, 1985 (ex. 1-5, pp. 40, 44, & 46-48). This injury was diagnosed as acute lumbar strain. Claimant was released to return to work without restrictions (ex. 8, pp. 14-18). X-rays showed no fracture or pathological involvement (ex. 1-6, P. 51). On May 20, 1986, claimant was pulling cases off of the pallet again, he bent over, picked up a case, got it half way up and felt a sharp pain in the same area of his lower back. He reported the injury to his supervisors and saw Harold E. Eklund, M.D., at Mercy Medical Clinic. Again he was treated with medications and bed rest and returned to work two or three days later without any restrictions or problems (ex. 8, pp. 18-23; ex. 1-6, p. 48). The third back injury occurred on June 16, 1986. Again claimant was breaking down the boxes from the pallets into stacks, he bent over to pick up a case, and felt a sharp pain in his lower back on the right hand side which went into his right hip area. Claimant said this injury was more severe. He felt numbness in his right leg. Claimant reported the injury to his supervisors and was sent home early at approximately 4 a.m. or 4:30 a.m. Claimant again saw Dr. Eklund (ex. 8, pp. 23-26; ex. 1-6, p. 49; tr. pp. 40-42). Dr. Eklund referred claimant to Scott Neff, D.O., an orthopedic surgeon. On July 14, 1986 a CT scan disclosed a large herniated disc and herniated nucleus pulposus to the central left side of L5, S1 (ex. 1-7, pp. 53, 58 & 60). On July 16, 1986 Dr. Neff predicted that there was a 50-50 chance claimant could return to work to his old employment unloading freight from semi trailers after surgery (ex. 1-1, p. 4). Claimant was hospitalized on July 22, 1986. The admitting history and physical examination described claimant as a slim 26 year old who had worked at Dahl's for nine years and injured his back while lifting (ex. 1-7, p. 60). Dr. Neff performed a bilateral laminectomy and disc excision at L5, S1 and also an S1 nerve loop foraminotomy for right sided nerve root entrapment and mild left sided nerve root entrapment on July 22, 1986 (ex. 1-6, pp. 58 & 68; ex. 8, pp. 26 & 27; tr. pp. 42 & 43). Following surgery claimant attended back school as recommended by Dr. Neff to learn proper lifting techniques in September of 1986 (ex. 8, pp. 28 & 29; ex. 1-1, pp. 32 & 33; tr. p. 43). On November 5, 1986, Dr. Neff ordered a functional capacity evaluation (ex. 1-1, p. 7). Also on November 5, 1986, Dr. Neff said that he wanted to see claimant following the functional capacity examination and review further recommendations for work hardening (ex. 1-1, p. 15). On November 26, 1986, Dr. Neff and Thomas W. Bower, L.P.T., jointly signed a letter to the insurance carrier enclosing the functional capacity evaluation and specifically recommended that claimant perform the work hardening program. Mr. Ferriss was seen in our office on your referral for a Functional Capacity Evaluation. Enclosed you will find the complete evaluation that was performed on this date. We would encourage you to review the entire exam but specifically the recommendations of a work hardening program generally utilized in aiding and developing the upper extremities, since this appears to be where the majority of the patient's problems are. Also, we would concentrate on an endurance activity program as opposed to a true strengthening program. Also, we have been asked to arrive at an impairment rating for this gentleman. Based on his motion loss which is incorporated into this report, this patient has incurred a 2 percent impairment and adding it with the residuals from the disc which is an additional 5 percent, this would total to a 7 percent impairment to the body as a whole. (ex. 1-1, p. 19) On December 4, 1986, Dr. Neff wrote to the insurance carrier as follows: Jerry Ferriss is seen today in follow up, [sic] I have reviewed the functional capacity evaluation. He works at the Dahl's warehouse, and has to unload by hand cases of food from pallets, and this is a significantly strenuous job. I am not certain whether he will ever be able to return to that job, but I would recommend that we try and increase his work capacity with a work hardening type program. Certainly it is not fair to have him recovering from a surgical situation, and then simply return him back to work without preparing him for the work place. I understand there is some difficulty with the insurance company, and they have felt that that is not an acceptable recommendation. Apparently he has now retained counsel, and I will forward copies of my recommendations and the functional capacity to that individual. Hopefully this situation can be straightened out so that he can be improved and returned to the work place in some capacity. (ex. 1-1, p. 8) Claimant testified that Dr. Neff recommended a work hardening program, but the insurance company refused to pay for it. A functional capacity examination was scheduled. Claimant testified that after he completed the functional capacity evaluation Dr. Neff again recommended a work hardening program but the insurance carrier refused to authorize it (tr. pp. 43-45). Claimant testified as follows: Q. When was that that that happened? A. Doctor--I seen Dr. Neff in the mid part (sic] of November, and he recommended the work-hardening [sic] program. Q. Okay. Was that approved by the insurance company at that time? A. Well, I went down to Tom Bower's office and set it up, and they called me later that day and said that the insurance company wanted me to run a functional capability test; that they would not pay for a work-hardening program (sic]. (tr. p. 43) Claimant then added: Q. (BY MR. LAWYER) Jerry, did you go through that functional capacity test? A. Yes, sir. Q. What was the next medical care or course of action that was taken? A. I was to have a reappointment to see Dr. Neff on December 4th, but before that period, I believe it was, I received a letter from Maryland Casualty saying that they had switched me over to permanent impairment ratings as of November 26th, and that the temporary healing benefits had stopped as of that day. Q. Had you received any release from the doctor to return to work or anything of that nature at that point? A. No, sir. (tr. pp. 44 & 45) Dr. Neff issued a return to work slip on December 11, 1986 that contained restrictions of no lifting and no bending over (ex. 1-7, p. 17). Dr. Neff then wrote a letter to the insurance carrier of December 15, 1986 as follows: I believe that Mr. Ferris has reached his maximum benefit and medical improvement from his surgery. The 7% rating that he has been given is to his body as a whole, and is the result of his work injury. Please find enclosed a copy of a functional capacity evaluation as performed by Mr. Tom Bower and reviewed by our office. I would recommend that he be involved in a work hardening program, so that his strength can be increased in his tolerance for work activity. (ex. 1-1, p. 1) Claimant's account of,what happened is as follows: Q. When you saw Dr. Neff the first part of December, what happened at that exam? A. I explained to him that the functional capability test had been ran, and he once again emphasized that there was a need for a work-hardening (sic] program, and once again sent me down to set it up, and said that he would call the insurance company personally and recommend the program to them. Q. Okay. Were you released to return to work at that time? A. No, sir. Q. When did you next have contact with the medical care providers? A. The next time I heard from any of the doctors was, Mr. Bower's office called me once again and cancelled the appointment for the work-hardening [sic) program, so I put a call in to Dr. Neff and told him the situation, and the next thing I know, I received a release in the mail. Q. From Dr. Neff? A. From Dr. Neff. Q. Was it a full release? A. No, sir. Q. Was it an unrestricted release? A. No, sir. There were restrictions on it. THE DEPUTY COMMISSIONER: What kind of release was this? THE WITNESS: No lifting, no bending over. THE DEPUTY COMMISSIONER: As a release to return to work, that kind of release? THE WITNESS: Yes, sir. Q. (BY MR. LAWYER) Exhibit 1, page 17, Jerry, is a release dated December 11, 1986. It says, "Patient is released back to work with restrictions of no lifting and no bending over." Is that the release that was sent to you in the mail? A. Yes, sir. Q. What did you do at that time? A. I took the work release out to Foods, Incorporated. Q. Who did you talk to? A. I gave the work release to Dave Johnson, the store manager, and he said that he would have to go upstairs and have a conference with Mr. Stroud, and that he would be back down shortly; to wait for him. Q. When he came back down, what did he tell you? A. He told me that Mr. Stroud had said that, due to the restrictions of the release, they had no other choice but to terminate me. (tr. pp. 45-47) Claimant was terminated on December 15, 1986 (tr. pp 78 & 79). When claimant was terminated he received the money in the company's retirement plan which is called Dahl's Employee Stock Ownership Plan and Trust (E.S.O.P) (tr. p. 47; ex. 8, pp. 37 & 39). Claimant testified that he tried to find employment at several different places, but that he was unsuccessful due to Dr. Neff's restrictions (tr. p. 47). He said that the jobs which were available for him to apply for paid between $3.50 and $4 per hour (tr. p. 48). Defendants then hired Bill Nordstrom, M.S., a vocational rehabilitation consultant at Resource Opportunities, Inc., to assist claimant find work. Nordstrom saw claimant on December 18, 1986. He interviewed and tested claimant (ex. 3-1, pp. 1-24). On January 2, 1987, Nordstrom thought that claimant's strong motivation to work eliminated the necessity of a work hardening program (ex. 1-3, p. 25), but Nordstrom changed his mind on January 19, 1987, when he decided to work out an arrangement for claimant to return to work for employer (ex. 1-3, p. 27). Nordstrom then reported as follows: PROGRESS REPORT: On January 20, 1987 the consultant visited with Mr. Kenny Stroud, Supervisor, at Dahl's Foods. Mr. Stroud stated that he would rehire Mr. Ferriss if he could successfully complete a work hardening program and be released to full-duty. On February 2, 1987 the client began work hardening at Physical Therapy Consultants.... (ex. 3-2, p. 3) Claimant then testified that Nordstrom had obtained permission from the insurance company for him to take the work hardening program and had also obtained an agreement from Dahl's to rehire him if he successfully completed the work hardening program and received a 100 percent unrestricted release (tr. p. 49). Claimant described what Nordstrom told him as follows: Q. What did he tell you? A. He come to me, I believe it was, at the end of January of '87, and said that he had been out to Mr. Strouds' and had a work-hardening [sic] program approved for February of that same year, and that if I went through that work-hardening [sic] program and ascertained a 100 percent unrestricted release, then Mr. Stroud would take me back to work. (ex. 8, p. 31) At his deposition, claimant added these remarks: Q. Now, you were later contacted by Mr. Nordstrom, and it's my understanding from your testimony that he told you that he would like to put you through a work-hardening [sic] program, and if it was successful, you would get back on at Dahl's (sic), is that correct? A. The work-hardening (sic] program was recommended several times by Dr. Neff, and it was turned down every time by Dahl's (sic) or Maryland Casualty--I do not know which one--and Mr. Nordstrom somehow seemed to get it approved after they had terminated me. (ex. 8, p. 39) Nordstrom obtained a job description signed by Stroud on January 20, 1987 and a written agreement "employer is willing to rehire following work hardening program with unrestricted release." The paper showed an hourly wage of $10.95 per hour and that claimant could start to work as soon as possible (ex. 3-2, pp. 35-37). The work hardening program consisted of procedures at the YMCA and at Bower's office. The general outline of the program was: (1) one hour of exercise at the physical therapy office; (2) a walk on the track at the YMCA for an hour; (3) approximately one hour in the weight room; and (4) an hour in the swimming pool (tr. p. 52). When claimant had completed the work hardening program, a new functional capacity evaluation was performed and Dr. William Boulden, Dr. Neff's partner, gave claimant an unrestricted release dated February 23, 1987 (tr. p. 54). Claimant testified that he successfully completed the work hardening program and received an unrestricted release from Dr. Bolden. When claimant completed the work hardening program, Bower wrote the following report dated February 23, 1987: Enclosed you will find the return to work assessment and poundages that this gentleman lifted on February 20, 1987, for a final exam. He has made extremely good progress through the entire work hardening program. Also, we have enclosed a hand written [sic] achievement record that was detailed during the work hardening program over the two and one-half week period. As you can see, this gentleman has increased his upper body strength by 35 percent and his overall lower body strength by 27 1/2 percent. This is an extremely good result and he should do well back in the work place. It is my understanding that he has received a return to work slip for today, February 23, 1987, and will be returning this evening. (ex. 1-3, p. 28) Dr. Boulden issued a release to return to work on February 23, 1987, without any restrictions of any kind (ex. 1-1, p. 18). Nordstrom's final progress report read as follows: PROGRESS REPORT: On February 20, 1987, the client was released to full duty by Dr. Boulden. The consultant then contacted Kenny Stroud, Supervisor, at Dahl's Foods. On February 23, 1987 the consultant met with Kenny Stroud and the client at the Dahl's corporate offices. Mr. Stroud stated that he would rehire Mr. Ferriss beginning March 2, 1987. Mr. Ferriss was to be reassigned to the Merle Hay Dahl's store and work the same night shift that he worked in the past. On March 10, 1987 the consultant contacted the client at his home. The client stated that he felt the return to work was going well and that he was happy to be back at work. On March 26, 1987 the consultant contacted Kenny Stroud. Mr. Stroud said that he felt that Mr. Ferriss' return to work was going very well and that he was pleased with Mr. Ferriss' work. (ex. 3-2, p. 34) Nordstrom then wrote to claimant on March 2, 1987 as follows: I would like to congratulate you for the outstanding way for which you have conducted yourself during the work hardening program and also during your re-hiring [sic] interviews with Dahl's [sic]. I feel that your determination is admirable and I would like to commend you for that. I know how anxious you are to get back to work, and I wish you well in your re-employment [sic] with Dahl's [sic]. In the next thirty days I will call you periodically to determine how your re-hire [sic] is going. It has been my pleasure to work with you. I admire your drive and determination. You are an exceptional client and I wish you the best of everything now and in the future. (ex. 3-2, p. 33) Claimant said that when he gave the 100 percent release to Stroud on February 23, 1987, Stroud seemed to be "in the gray" about the hourly rate, but Nordstrom had told claimant he would be rehired at $10.95 per hour. The agreement that Stroud signed for Nordstrom specified $10.95 per hour. Claimant testified that Stroud told him on February 23, 1987, at the time of his rehire, that he would have to find out whether claimant came under the two tier pay system. Claimant did not immediately receive an answer from Stroud, but was actually paid $10.95 per hour during the first six weeks that he was back to work and so claimant presumed that it was decided to pay him $10.95 per hour. Under the two tier system, employees hired before a certain date (January 1, 1985) retained the salaries that they were earning on that date, but new employees hired after that date were hired at a lower wage scale (ex. 8, pp. 41, 42 & 49). On February 27, 1987, claimant testified that Stroud told him that he would start to work at the Merle Hay store on March 2, 1987 at 10 p.m. Claimant was to work a 20-hour week from 10 p.m. until 2 a.m. for the first two weeks. Claimant was then to work a 30-hour week from 10 p.m. to 4 a.m. for one week. If claimant had no problems, he would return to a 40-hour week from 10 p.m. to 6:30 a.m. Claimant also testified that Stroud told him that if he reinjured himself, he would have to fire him (ex. 8, pp. 44 .& 45). Claimant testified that Stroud did not say what the hourly rate would be at his meeting with him on February 27, 1987 because it was still undecided (ex. 8,.pp. 44 & 45; tr. pp. 55 & 56). Claimant testified that he met again with Stroud in March of 1987 for an evaluation before he began working 40-hour weeks. Claimant averred that Stroud reminded him that if he reinjured himself that he would have to fire claimant because of his own stupidity (ex. 8, p. 48; tr. pp. 61 & 77). Claimant further alleged that on the night of August 5, 1987, Stroud came to the store at 12:30 a.m. and asked claimant who told him that he would be fired if he had any problems. Claimant testified that he told Stroud that it was Stroud who told him that (ex. 8, p. 50), to which Stroud made no reply (ex. 8, p. 52). Claimant related that he was told on April 15, 1987, by Johnson, the store manager, that there had been a clerical mistake. The wrong information had been fed into the computer. He told claimant that his new pay rate would be $9 per hour (tr. p. 51). Claimant testified that he is capable of performing his job and has been performing his job 100 percent since he returned to work on March 2, 1987. Claimant said that he works 40 hours a week plus eight hours of overtime for a total of approximately 48 hours per week (ex. 8, p. 39, 40, 47 & 48). Claimant admitted that he experienced a temporary aggravation of his right hip and leg numbness in June of 1987. He went back to see Dr. Neff in July of 1987. A magnetic resonance imaging (MRI) was eventually performed after a dispute with the insurance company about who was going to pay for it (tr. p. 60). Claimant said his aggravation occurred while stacking the boxes of groceries. He lost no time from work. His boss and coworkers took him off stacking and he got better. He is still working under a full release. Usually only two people stack. The two persons who are most physically able to do it usually perform the stacking. The women do not stack. Claimant said that in the past he was the regular stacker. Claimant maintained that he can stack now, but it does agitate his pain. Claimant repeated that he had lost no time from work since his return to work on March 2, 1987 until his deposition on December 1, 1987 (ex. 8, pp. 58-65). At the time of this hearing, claimant was stacking again and doing all of the jobs of the night stock clerk (tr. pp. 74-80). Claimant conceded that there have been times when temporarily he could not do the unloading or stacking and was accommodated by other employees on these occasions (tr. pp. 82 & 84). Claimant testified that he does suffer some residual pain and numbness in his right leg. Claimant testified that he is awakened almost every night while sleeping with tightness in his right hip. He finds it necessary to get up, stretch it and limber it up (tr. pp. 61 & 62). Claimant testified that since this injury, he has not been able to bowl or play pool due to his back injury. He does mow the yard and run the vacuum (ex. 8, pp. 65, 66 & 69; tr. pp. 54, 62, 63 & 69). Claimant said that he is learning to live with it (tr. p. 81). Claimant testified that the prescriptions shown at exhibit 2-2, pp. 3 & 4, five prescriptions at $3 each for a total of $15, were prescribed by Dr. Neff for this injury, but that he has not been paid for them (tr. p. 66). Claimant testified that Dr. Neff recommended that he buy a recliner following his back surgery for ease in standing up and sitting down. Claimant testified that he paid for the recliner and he used it and it was helpful during his recovery, but that he has not used it since (tr. pp. 68 & 69). Claimant also testified that he purchased an ultra firm water mattress on the recommendation of the physical therapist and other patients in the physical therapy program. Claimant testified that he paid for it himself and has found it helpful (tr. pp. 69 & 70). Claimant said that he believed that he could never be increased from $9 per hour back to $10.95 per hour under the two tier new hire policy even though he had nine years of prior service (tr. pp. 38, 70 & 71). Stroud agreed that $9 was the top pay in that category for a night stock clerk. Stroud added that no matter how high claimant might be advanced in the company, he would still only be entitled to second tier wages (ex. 7, pp. 20 & 21). Stroud averred that claimant had a good job at $9 per hour and could not earn anymore than that any place else in the city of Des Moines (ex. 7, p. 31). Stroud admitted that he had the power to interpret the policy under which he took claimant back to work and that the decision was made to reinstate claimant as a new hire (ex. 7, pp. 34 & 34). Stroud said employer intends to continue the two tier system. It is necessary to compete with the box stores which are cut rate grocery stores (ex. 7, pp. 39 & 40; tr. p. 138). Stroud concluded his deposition as follows: The two tier system was a system we put in effect in 1983 as a management tool and it was not a penalty for anybody. It was still better than anybody else was paying, and he was just a victim. I'm sorry that Jerry got hurt, but, you know, we can't help that either. Maybe he was careless. Maybe he was stupid. We don't know that, you know. I like Jerry. We don't know. (ex. 7, pp. 40 & 41) Claimant repeated that he got the letter from the insurance company at the end of November 1986 which stated that they were converting his benefits from temporary to permanent (tr. p.-80). David Johnson testified that he is the store manager at the Merle Hay store. He understood that claimant quit by mutual agreement because claimant knew that he could not perform the night stock job if he could not bend or lift. Johnson maintained he believed that claimant quit by mutual agreement even though claimant was a married man with three minor children and it was only 10 days before Christmas; and even though claimant had been in the store just a few days earlier requesting that the job be modified to allow claimant to perform a former night porter job cleaning the restrooms and floors. This job had been eliminated in recent years and was now being performed by the whole night crew. Johnson further testified that since claimant had returned to work he had performed all of his duties as a night stock clerk 100 percent (tr. pp. 91-96). The termination of employment sheet prepared by Johnson at the time of the termination supported his testimony at the hearing (ex. 5-3, pp. 18 & 19). William Nordstrom, a vocational consultant, employed by Resource Opportunities Incorporated, was hired by the insurance carrier in late 1986 to do an initial assessment of claimant's return to work potential. As part of his routine procedure, Nordstrom contacted employer to see if he could be reemployed there if claimant completed a work hardening program and was released to full duty even though the work hardening program had previously been denied. Nordstrom testified that Stroud said that if claimant completed the program he would consider a rehire. Nordstrom then wrote out the job description of night stock clerk with Stroud (ex. 3-2, p. 37). Nordstrom said he then asked Stroud how much claimant was earning at the time of his release from his duties. Nordstrom said Stroud told him $10.95 per hour. Nordstrom stated that he then wrote that amount on the sheet which he requested Stroud to sign. Nordstrom arranged for the work hardening and the insurance company paid for it. Nordstrom said that when he asked claimant about the work hardening that claimant replied as follows: Q. What did he advise you? A. He told me it was very strenuous, he hurt an awful lot, it was very, very difficult, and yet he willingly cooperated and completed the program, knowing that it would mean reemployment. (tr. p. 104) Nordstrom testified that claimant's work hardening program was successful because of claimant's desire to return to employment as well as claimant's stick-to-itiveness with the program (tr. p. 104). Nordstrom said that claimant completed the work hardening program, obtained a full release from Dr. Boulden and returned to his former job as night stock clerk (tr. p. 109). Nordstrom added that Stroud was unwilling to modify the job to accommodate claimant (tr. p. 114).. Nordstrom related that he was not aware of employer's two tier wage system when he talked to Stroud about the work hardening program (tr. p. 106). Nordstrom testified that he believed that he did tell claimant that he would return to work at $10.95 per hour after completion of the work hardening program. Nevertheless, after claimant was rehired he was told: (1) that he would be paid $9 per hour instead of $10.95 per hour; (2) that he would lose vacation benefits; (3) that he would have to pay for his family health insurance in its entirety for the first six months of reemployment as a new hire; and (4) that he would have to requalify for the E.S.O.P. (tr. pp. 107 & 108). At the hearing, Stroud testified that he is a 25-year employee of employer. He has been executive vice president for one year having risen through the ranks in various management jobs over the years. He related that injured employees must bring in evidence that they can perform their job when they return to work after an injury or illness. Stroud testified that he formally performed the night stock clerk job himself for one and one-half years. He said that claimant could not perform this job with restrictions of no lifting and no bending. There were no other jobs at the store that Stroud knew of that claimant could perform. Stroud admitted that claimant was terminated. Stroud confirmed that he agreed to and did take claimant back to work when the restrictions were removed (tr. pp. 115-123). Stroud told that the two tier system became effective January 1, 1985 for all new hires. This new pay system was necessary to compete with competitors in the market place. He said that when claimant was terminated in 1986 he was no longer an employee of employer. Stroud verified that all employees who have been rehired after January 1, 1985 are treated as new hires. He denied that it had anything to do with the fact that claimant was injured and received workers' compensation benefits. Stroud said that claimant did not lose any vesting in the E.S.O.P due to internal revenue service rules. Stroud admitted that claimant will have less going into the E.S.O.P. now because he is making less money since being rehired (tr. pp. 132 & 133). Stroud confirmed that claimant is at the top of his wage scale at $9 per hour and can never make more than that unless he would be promoted to some other job (tr. p. 123-126). Stroud conceded that if claimant had not been injured he would still be earning $10.95 per hour, he would still have nine years of seniority for days off, he would still have three weeks of vacation and claimant would not have had to pay the first six months of initial health insurance premiums a second time as a rehire (tr. pp. 126-131). Stroud admitted that the persons in authority, including himself, had determined that claimant had to return to work as a rehire even though claimant's termination came about due to an injury while working for Dahl's (tr. P. 132). Stroud said that claimant was not currently being considered for promotion. He also denied that claimant had been considered for termination. Stroud acknowledged that it would not have created a financial hardship for Dahl's to.return claimant to work at his former wage of $10.95 per hour after his injury on the job (tr. pp. 134-136). Stroud claimed that hiring the claimant back at the rehire rate was a matter of how the company treats all employees and not just one individual (tr. p. 137). Claimant testified that he only received four and one-half days of vacation in 1987 and that he would receive six days of vacation in 1988 and thereafter. Claimant estimated that he would have to work 10 years to get back to three weeks of vacation per year (ex. 8, pp. 57 & 58). Stroud estimated it would take claimant approximately six years before he would earn three weeks of vacation again (ex. 7, p. 23). Claimant testified that the full cost of the medical premiums that he was required to pay during the first six months of his rehire amount to approximately $700 (ex. 8,.p. 54, 58 & 59). Claimant testified that loss of seniority means that you will loose the choice of the type of job that you will be given to do. The bummer jobs are unloading the trucks and crushing the boxes (ex. 8, pp. 53 & 56). Loss of seniority also means the last choice of days off on holidays. Claimant said he is now lowest in seniority in a crew of eight people. Previously his seniority was only exceeded by the crew chief and second man (ex. 8, p. 59). Facts relative to the computation of the proper rate of compensation are as follows. This data is taken from exhibit 1-4, page 2. DATE REGULAR HOURS OVERTIME HOURS TOTAL HOURS 6-14-86 39 8 47 6-07-86 43.5 8 51.5 5-31-86 42 0 42 5-24-86 14.75 8 22.75 5-17-86 40 8 48 5-10-86 40 8 48 5-03-86 40 8 48 4-26-86 40 8 48 4-19-86 40 8 48 4-12-86 40 0 40 4-05-86 0 0 0 3-29-86 40 8 48 3-22-86 40 8 48 3-15-86 40 0 40 3-08-86 8.25 8.25 16.5 3-01-86 40 8 48 The irregular weeks are as follows: (1) March 8, 1986, when claimant was on vacation; (2) April 5, 1986, when claimant was on vacation; (3) May 24, 1986, when claimant was off work for the injury of May 26, 1986. When these three irregular weeks are eliminated from the calculation, the total hours worked for the remaining weeks are 604.5 hours. When 604.5 hours are multiplied by $10.95 per hour the total gross earnings are $6,619.275. When these gross earnings are divided by 13, the gross weekly earnings amount to $509.18 per week. The workers' compensation payment for these gross weekly earnings for a married person with five exemptions, in the workers' compensation benefit schedule for July 1, 1985, amount to a weekly workers' compensation rate of $316.87. APPLICABLE LAW AND ANALYSIS The parties stipulated and the evidence amply supports the stipulation that claimant sustained back injuries on August 23, 1985, May 20, 1986 and June 16, 1986, all of which arose out of and in the course of employment with employer as a night stock person. On each of these occasions, claimant was attempting to lift a box when he experienced severe pain that required medical treatment on each of these occasions. Claimant sustained the burden of proof by a preponderance of the evidence that the injury of June 16, 1986 was the cause of healing period disability from the date after the injury of June 17, 1986 until February 23, 1987, when he completed the work hardening program and was released to return to work without any restrictions. Claimant is entitled to healing period benefit's until: (1) he has returned to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) he is medically capable of returning to employment substantially similar to the employment at the time of the injury, whichever occurs first. [Iowa Code section 85.34(1)]. Dr. Neff stated on December 15, 1986 that claimant had reached his maximum benefit and medical improvement from the surgery; however, this is not the same as reaching maximum medical improvement from the injury in all of its aspects. Furthermore, it is not true that claimant had reached his maximum medical improvement on December 15, 1986, because when claimant was given the opportunity to receive the work hardening program, which Dr. Neff had recommended several times and the insurance company refused to authorize several times, claimant did achieve his true maximum medical improvement and was given a return to work release without any restrictions. Therefore, the statement in the letter of December 15, 1986, that claimant reached his maximum medical benefits and medical improvement is proven incorrect by the actual facts that occurred in this case. Claimant is entitled to healing period benefits for the entire course of the treatment, including work hardening, which was recommended by Dr. Neff and ended on February 23, 1987, when claimant was released to return to work without any restrictions. The right of the employer to choose the care as provided in Iowa Code section 85.27 gives the employer and its insurance carrier the right to select a treating physician, but it does not give them the right to invade the province of the medical professionals to determine what diagnostic tests and methods of treatment are reasonable from a medical point of view. Pote vs. Mickow Corporation (Harret Corp.), file number 694639 (review-reopening decision filed June 17, 1986); Martin vs. Armour-Dial, Inc., Vol. II No. I State of Iowa Industrial Commissioner Decisions 253, 258 (1985). Iowa Code section 85.27 requires the defendants to furnish reasonable care and medical treatment. The work hardening program was reasonable care and defendants were required to furnish it. Without work hardening claimant could not return to his old job. With work hardening, claimant was returned to his old job. Defendants violated their duty to provide reasonable care by rejecting the professional recommendations of the treating physician, who was their own personal choice of physician to treat the injury, to provide claimant with a work hardening program in order to restore him to full duty. Dr. Neff explained fully why work hardening was needed on two occasions in writing. Defendant, insurance carrier, did not give a reasonable explanation, or any explanation for that matter, either by the introduction of evidence or through the argument of counsel, as to why they refused the work hardening program. If defendants had a reasonable explanation they should have asserted it. In absence of any explanation of any kind, then there is no good reason or any reason in the record to justify the refusal to provide the care which was recommended by the treating physician. Consequently, claimant is entitled to healing period benefits from June 17, 1986 to February 23, 1987. The parties stipulated that claimant was off work during this period of time and it is now determined that the injury of June 16, 1986 was the cause of this time off work. Claimant was not able to work after the injury on June 16, 1986. He was not released to returned to work without restrictions until February 23, 1987. The claimant has the burden of proving by a preponderance of the evidence that the injuries of August 23, 1985, May 20, 1986 and June 16, 1986, are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W. d 128 (1967). The injury of June 16, 1986 was the cause of permanent disability. Dr. Neff said claimant's impairment was a result of his work injury on this date (ex. 1-1, p. 1). Claimant is entitled to substantial permanent partial disability benefits. First of all, claimant sustained a physical impairment, a loss of total body function, of 7 percent of the body as whole. This rating was not reduced after claimant had finished the work hardening program and claimant could work without restrictions. Therefore, this rating of Dr. Neff, stands as the only rating in this case. If a lower rating was in order, defendants should have obtained it and placed it in evidence. In addition to the permanent physical impairment, claimant has sustained extensive actual wage losses as the direct and immediate result of the injury and the manner in which it was treated by the insurance company and the employer in addition to claimant's loss of earning capacity. As a 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 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). In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W. 2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. The Supreme Court of Iowa held that where employer refused to give any work to claimant after he suffered a work injury, this may be taken into consideration as a factor in determining defendants' liability [McSpadden, 288 N.W.2d 181 (Iowa 1980)]. The supreme court has also held that an increase in industrial disability may occur without a change in physical condition where claimant was transferred to a lower paying job after a work injury. [McSpadden, 288 N.W.2d 181 (Iowa 1980)]. In this case, claimant was earning $10.95 per hour at the time of the injury. The defendant insurance carrier refused to authorize work hardening in violation of the recommendation of the treating physician in order to restore claimant's ability to perform his job as a night stock clerk. The defendant employer then terminated claimant because the treating physician imposed restrictions of no lifting and no bending over. The defendant, insurance carrier, then authorized work hardening, claimant's restrictions were removed, and claimant was rehired by defendant employer at the second tier new hire rate of $9 per hour to perform the same job that paid him $10.95 per hour at the time of the injury. Through no fault of his own, claimant has sustained an actual wage loss of $1.95 per hour, not only for the period for which workers' compensation benefits can be awarded in this case, but for the rest of his working career with this employer. It should be noted that claimant is in fact a career employee of Dahl's. There is no evidence that claimant was careless or did anything stupid. The actual wage loss amounts to approximately 18 percent ($1.95 divided by 10.95 = 17.8%). This must be added to claimant's permanent physical loss of function in the amount of 7 percent of the body as whole. Furthermore, claimant has other actual losses and claimant has also lost earning capacity. Claimant lost nine years of seniority and started over over with zero years of seniority on March 2, 1987. His paid vacation has been reduced from three weeks per year to six days per year. Claimant estimated that it would take ten years before he would regain three weeks of paid vacation. Stroud estimated that it would be six years before claimant would regain three weeks of paid vacation per year. Employers contribution to the E.S.O.P. on behalf of claimant will be less due to the 18 percent loss of actual wages since the rehire. This loss will continue on for the balance of claimant's working career with employer which could be 30 years or more before normal retirement. Claimant is locked into the second tier wage scale no matter what job claimant might eventually perform for Dahl's. Claimant was forced to pay the first six months of the initial premium for health insurance a second time after his rehire which he testified amounted to approximately $700. This was not controverted. Addressing earning capacity, claimant's employability market is reduced because he is a a back injury which required surgery compensation benefits. Claimant's without a G.E.D. reduces his employability market. Claimant continues to suffer right leg. His sleep is interrupted practically every night. It is more difficult for him to perform a strenuous job than it is for an employee who does not have pain and numbness in his right leg. Claimant had a flare-up in June of 1987 which caused him to see Dr. Neff again in July of 1987. Credit must be given to defendant insurance carrier for providing claimant with a very ,effective vocational rehabilitation specialist who actually restored claimant to his former job. Consideration must be given to the insurance carrier for providing claimant with work hardening when it was recommended by the vocational rehabilitation specialist. Consideration must be given to the fact that defendant employer cooperated with the vocational rehabilitation consultant and gave claimant the opportunity to return to his old job. Wherefore, based upon the foregoing considerations and all of the factors used to determine industrial disability and applying agency expertise [Iowa Administrative Procedure 17A.14(5)], it is determined that claimant has sustained a 35 percent industrial disability to the body as whole. This award still may be far less than claimant's projected actual wage and E.S.O.P. contribution losses over the balance of his working career. Turning to the proper rate of compensation, paragraph two of the hearing assignment order stated that the parties will attempt to stipulate to the rate. However, a stipulation was not reached by the parties. Defendants objected to the rate being an issue in this case for the reason that claimant first notified them of the rate issue on the day before the hearing. It is determined that this was sufficient time for defendants to defend on the rate issue. If claimant had the wage figures for the 13 weeks prior to hearing, then defendants should have had access to them also. Furthermore, the original notice and petition alleged that rate was an issue. With respect to the rate, Iowa Code section 85.36, Basis of computation, provides as follows: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of.the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Claimant contends that irregular weeks of pay should be eliminated from the rate calculation and defendants contend that the irregular weeks should be included in the rate calculation. The case of Lewis vs. Aalfs Manufacturing Co., I Iowa Industrial Commissioner Report 206 (Appeal Decision December 30, 1980) provides as follow: ...Claimant did not work 13 consecutive weeks between May 6, 1978 and the date of the injury in September 1978. However, it is clear that the requirement of 13 consecutive weeks must be interpreted in light of the first unnumbered paragraph of section 85.36 which mandates that,one determine the weekly earnings "at the time of the injury," and that said earnings are those to which the employee "would have been entitled had he worked the customary hours for the full pay period in which he was injured,..." Here, as in many other cases, claimant had vacations and layoffs which broke the string.of weeks. The requisite action, then, is to determine what claimant was earning when she was hurt; subsection 6 qualifies this requirement by stating a method of computation. Reading the first unnumbered paragraph and subsection 6 together, the best method of calculation would be to determine the last 13 completed consecutive weeks.... In addition Lawyer and Higgs, Iowa Workers'.Compensation--Law and Practice, section 12-4, at pages 97 & 98 provides as follows: Iowa Code section 85.36(6) sets out the basis for determining the weekly earnings at the time of the injury when the employee is paid by the hour, by day, or by output. To compute the gross weekly earnings in these situations, the earnings from the employer for the "last [thirteen] completed consecutive weeks" prior to the injury are added together and divided by thirteen. Premium pay is not included in this calculation. Overtime hours are included at the straight time pay scale. It is not uncommon in determining the rate under section 85.36(6) for a non-salaried [sic] employee to find that here are weeks within the thirteen consecutive weeks prior to the injury that contain absences due to illness, vacation or other causes. Since the worker often does not get paid unless he works, these weeks are not representative of his earnings. The agency has consistently ruled that these weeks are not included in the thirteen weeks for determining the rate under Iowa Code section 85.36(6). Instead, the "short" weeks are skipped and additional weeks are included until thirteen completed consecutive weeks are accumulated for the calculation. The rationale for this method of determining the weekly earnings is based on the mandate of the first unnumbered paragraph of Iowa Code section 85.36 which requires a determination of earnings to which an employee "would have been entitled had he worked the customary hours for the full pay period in which he was injured..." (footnotes omitted) The weight of authority on this issue favors claimant. Therefore, eliminating the week of March 8, 1986, when claimant was on vacation, the week of April 5, 1986, when claimant was on vacation and the week of May 24, 1986, when claimant lost time for the injury of May 20, 1986. The total hours worked in the 13 representative consecutive weeks total 604.5 hours. This number times $10.95 per hour amounts to gross wages of $6,619.275 earned during the 13 representative weeks. The gross amount earned divided by 13 produces a gross weekly earnings of $509.18 per week which results in a workers' compensation benefit for a married person with five exemptions in the amount of $316.87 based on the workers' compensation benefits schedule for July 1, 1985. Claimant is not entitled to penalty benefits under the fourth unnumbered paragraph of Iowa Code section 86.13 which reads as follows: If a delay in commencement or termination of benefits occurs. without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Since the insurance carrier had an impairment rating signed by Dr. Neff as of November 26, 1986, a return to work slip signed by Dr. Neff on December 11, 1986 and a letter signed by Dr. Neff on December 15, 1986 stating that claimant had attained maximum medical improvement and defendants continued to pay benefits from shortly after the injury until July of 1987, then there is some evidence that there was no delay in the commencement or premature denial of benefits. Under these circumstances it is not possible to say that benefits were unreasonably delayed or denied without reasonable or probable cause or excuse. Paying an incorrect rate lower than claimant's entitlement can be the basis for a penalty under Iowa Code section 86.13 if it is proven by the proponent of the issue that it was a delay or denial without reasonable or probable cause or excuse. Claimant did not sustain that burden of proof in this case. Defendants contended that they paid claimant on the basis of 40 hours per week at his hourly wage of $10.95 per hour. This was not the correct rate and claimant was grossly underpaid. Defendant insurance carrier should have calculated the rate based upon the actual hours that claimant worked and wages received in the 13 customary weeks prior to injury rather than use an arbitrary calculation of 40 hours times claimant's hourly rate of pay. But since there is some basis in fact for the insurance carrier's calculation it cannot be said that it was without reasonable or probable cause or excuse. Claimant did not prove that the calculation was without reasonable or probable cause or excuse. Penalty benefits are not imposed where there is a legitimate dispute. Just vs. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Report 190 (Appeal Decision January 31, 1984). Since defendants paid at least the amount of the impairment rating it is difficult to say that benefits were unreasonably delayed or denied without reasonable or probable cause or excuse. Wherefore, no penalty benefits under Iowa Code section 86.13 are awarded to claimant on any of the alleged grounds asserted by claimant for them. A determination as to whether penalties should be imposed upon claimant under Division of Industrial Services Rule 343-4.35 and Iowa Rules of Civil Procedure 80 for asserting a claim for Iowa Code section 86.13 benefits on the original notice and petition dated January 7, 1987 when claimant was in fact being paid workers' compensation benefits at that time was not asserted as a hearing issue at the prehearing conference and was not designated a hearing issue on the hearing assignment order. Hearing deputies normally determine only issues raised at the prehearing conference and designated as hearing issues on the hearing assignment order. Presswood vs. Iowa Beef Processors, Inc., file no. 735442 (Appeal Decision November 14, 1986). Furthermore, the hearing deputy in this case declines to impose a penalty on his own initiative pursuant to Rule 80. In this case, the individual action of defendant insurance carrier and defendant employer combined to place claimant in a double bind. Defendant employer refused to take claimant back to work because of Dr. Neff's restrictions. Defendant insurance carrier refused to allow claimant to perform the work hardening program in order to remove Dr. Neff's restrictions. Under these circumstances, claimant might well have suspected that discovery would develop the grounds for a penalty under Iowa Code section 86.13 when the original notice and petition was filed on January 7, 1987. Claimant is not entitled to payment for the recliner in the amount of $440.97 or the ultra firm water mattress in the amount of $139.99 because there was no medical evidence that these items were prescribed, recommended or suggested by Dr. Neff who was the treating physician. Claimant is entitled to payment of the five prescriptions at $3 each in the total amount of $15 which were prescribed by Dr. Neff for claimant's back injury. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant was an employee of employer on August 23, 1985, May 20, 1986 and June 16, 1986 as stipulated by the parties. That claimant sustained an injury to his back on these three dates as stipulated by the parties. That the injury of June 16, 1986.was the cause of claimant's time off work for the healing period from June 17, 1986 to February 23, 1987. That back surgery was performed on claimant on July 22, 1986 and claimant has also sustained a loss of motion in his back. That claimant: (1) continued to have pain and numbness in his leg; (2) suffers sleep disturbance and leg stiffness; (3) suffers occasional flare-ups; and (4) finds that stacking boxes agitates his condition, even though he has been able to perform his job since returning to work. That claimant sustained a physical injury or loss of body function in the amount of 7 percent of the body as a whole as a result of the injury of June 16, 1986. That claimant is approximately 30 years old,.has an eleventh grade education and has not obtained a G.E.D. That claimant, a career employee of employer, sustained an approximate 18 percent loss of actual earnings as long as he continues his career at Dahl's. This period could extend well beyond the period of the award in this case and deprive claimant of substantial earnings between now and claimant's normal retirement. That if claimant should be promoted or change jobs within the company, he would still receive tier two wages rather than tier one wages because defendant employer treated him as a rehire when he returned to work from this injury. That employer's contribution to claimant's E.S.O.P. will be less over the period of his entire employment with employer because of the 18 percent reduction in his wages and his permanent status as a tier two employee. That claimant sustained a reduction in paid vacation from three weeks per year to six days per year. That claimant was forced to pay approximately $700 in the initial health insurance premiums as new employee when he was treated as a rehire in the two tier employment system of employer. That claimant's seniority was reduced from nine years to zero years when he returned to work as a rehire on March 2, 1987. That claimant sustained a 35 percent industrial disability to the body as a whole. That the proper rate of compensation is $316.87 per week. That defendants prematurely converted claimant to permanent partial disability benefits, but that defendants action in doing so was not without reasonable or probable cause or excuse. That defendants grossly erred in the calculation of the proper rate of compensation, but defendants' error was not without reasonable or probable cause or excuse. That defendants payment of only 7 percent permanent partial disability benefits was a gross under payment of the proper amount of permanent partial disability to which claimant was entitled, but defendants action is not without reasonable or probable cause or excuse. That the allegation of entitlement to Iowa Code section 86.13 penalty benefits was premature, but it was not without reasonable or probable suspicion that subsequent discovery might support the allegation. That no factual basis exists for sanctioning claimant for alleging section 86.13 penalty benefits while defendants were making payments of workers' compensation benefits, because it could be determined that if defendants prematurely converted temporary benefits to permanent benefits then claimant was also prematurely denied permanent benefits. That claimant provided no medical evidence to support his claim for a recliner in the amount of $440.97 or an ultra firm water mattress in the amount of $139.99. That claimant did incur $15 in prescription drug expense for medications prescribed by Dr. Neff for his back condition. 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 back injuries on August 23, 1985, May 20, 1986, and June 16, 1986 which arose out of and in the course of employment with employer. That claimant is entitled to 36 weeks of healing period benefits for the period from June 17, 1986 to February 23, 1987. That claimant's injury of June 16, 1986 was the cause of permanent disability. That claimant is entitled to 175 weeks of permanent partial disability benefits based upon a 35 percent industrial disability to the body as a whole. That the proper rate of compensation is $316.87 per week. That claimant is not entitled to penalty benefits under Iowa Code section 86.13. That defendants are not entitled to the imposition of sanctions under Iowa Rule of Civil Procedure 80. That claimant is entitled to $15 in medical benefits for prescription drugs. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty-six (36) weeks of healing period benefits at the rate of three hundred sixteen and 87/100 dollars ($316.87) per week in the total amount of eleven thousand four hundred seven and 32/100 dollars ($11,407.32) for the period June 17, 1986 to February 23, 1987. That defendants pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of three hundred sixteen and 87/100 dollars ($316.87) per week in the total amount of fifty-five thousand four hundred fifty-two and 25/100 dollars ($55,452.25) commencing on March 23, 1987. That defendants are entitled to a credit for fifty-eight and one-sevenths (58 1/7) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of two hundred seventy-eight and 44/100 dollars ($278.44) per week. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant fifteen dollars ($15) in medical expenses for prescription drugs. That the costs of this action are charged to defendants 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 28th day of June, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jim R. Lawyer Attorney at Law. West Towers Office 1200 35th St. STE 500 West Des Moines, IA 50265 Mr. Richard Book Attorney at Law 500 Liberty Bldg Des Moines, IA 50309 1401, 1402.40, 1402.60, 18021 1803, 2501, 2505, 2700, 30011 3002, 3003, 4000, Filed June 28, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY L. FERRISS, Claimant, File Nos. 804053 825705 vs. 840448 DAHL'S FOODS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and MARYLAND CASUALTY COMPANY, Insurance Carrier, Defendants. 1401, 1402.40, 1402.60, 1802, 1803 Claimant awarded healing period and permanent partial disability for a back injury that resulted in a laminectomy. 2501, 2505, 2700 Defendants violated the right of choosing the care by refusing a work hardening program recommended by the treating physician. The right to choose the care is not the right to invade the province of the medical professionals and dictate what constitutes reasonable medical care for treatment of claimant's injury. 3001, 3002, 3003 Irregular weeks are eliminated to calculate the rate of an hourly employee. 4000 Claimant did not prove that: (1) premature conversion of temporary disability benefits to permanent disability benefits; (2) gross error in calculation of the rate of compensation; and (3) gross under payment of permanent disability was without reasonable or probable cause or excuse and claimant was not awarded Iowa Code section 86.13 penalty benefits. 4000 Defendants were not entitled to an imposition of Iowa Rule of Civil Procedure 80, penalties on claimant attorney, for alleging Iowa Code section 86.13 penalty benefits on the petition while claimant was receiving workers' compensation benefits. 1803 Insurance carrier would not authorize work hardening as urged strenuously by treating physician who was defendant insurance carrier's own choice of physician. Physician then imposed restrictions of no lifting and no bending over. Defendant employer would not rehire claimant with restrictions of any kind or modify the job, but instead terminated claimant. Rehabilitation specialist then persuaded insurance company to authorize work hardening and employer to take claimant back to work after all restrictions were removed. However, claimant was rehired as a new employee with an 18 percent loss of income and reduced contributions to his retirement plan for the rest of his career. His vacation was reduced from three weeks to six days. Claimant had to pay the first six months of medical insurance premiums out of his own pocket again as a new employee. Claimant lost nine years of seniority for employee privileges. Claimant sustained a 7 percent permanent physical impairment. Even though claimant could perform his old job 100 percent he was awarded 35 percent industrial disability. His actual losses were wage and pension plan losses of (18%) indefinitely, his physical impairment (7%), his vacation, health insurance premiums and seniority losses. His earnings capacity losses were: (1) continued pain and numbness in his leg; (2) sleep disturbance and leg stiffness; (3) occasional flare-ups; (4) aspects of work agitate his condition; (5) eleventh grade education without G.E.D.; and (6) claimant is a manual labor type of employee with a back injury that required surgery and had a workers' compensation claim as a future competitor in the competitive labor market. 5-1800 Filed August 15, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : STEPHEN V. GREENHORN, : : Claimant, : : vs. : : File No. 804084 SAVE-U-MORE FOOD STORE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Claimant fell from ladder and the eventual diagnosis was aggravation of spondylolithesis. Claimant awarded 10 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANIEL J. CAMPBELL, Claimant, VS. FILE NO. 804104 UMTHUN TRUCKING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and INTERCONTINENTAL INSURANCE, MGRS., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Daniel J. Campbell against Umthun Trucking Company, his former employer, and Intercontinental Insurance Managers. The case was heard at Burlington, Iowa on November 3, 1986 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from Daniel J. Campbell and Kenneth A. Scott. The record also includes exhibits 1 & 2, 4 through 25, and 29 & 30. Claimant's objection to exhibit 3 is sustained. The offense of fraudulent practice in the third degree is an aggravated misdemeanor under Code section 714.11, not a felony. In view of the nature of the proceeding the matters obtained in exhibit 3 are likewise not shown to be relevant as character evidence. ISSUES Claimant seeks benefits as the result of an alleged injury of August 8, 1985. The case carries a full slate of issues including whether or not claimant received an injury which arose out of and in the course of employment; whether a causal relationship exists between the alleged injury and any disability; determination of entitlements to compensation for temporary total disability or healing period; and determination of liability for section 85.27 benefits. Defendants urge that claimant made a false representation on his application for employment which relieves the employer from liability. The employer's position is supported by an excellent brief filed by defense counsel. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. CAMPBELL V. UMTHUN TRUCKING CO. Page 2 All evidence received at the hearing was considered when deciding this case. Daniel J. Campbell is a 43 year old married truck driver. Campbell testified that on a date of which he was uncertain, while at a town in Missouri of which he was uncertain, he fell from his truck when an "O" ring broke while he was tightening a tarp. Campbell stated that he fell against the tractor and then to the ground. He stated that it happened so fast that he could not be certain of how he actually fell. He testified that he was taken by a colored man to a clinic where an examination found nothing abnormal but he was provided with a sling. Campbell stated that he experienced and made complaints of stiffness and numbness in his right arm. Campbell testified that he notified the employer of the incident and then drove the truck home where he entered into a course of medical care administered by a number of employer authorized physicians including Donald MacKenzie, M.D., Jerry M. Jochims, M.D., Koert Smith, M.D., G. W. Howe, M.D., and James V. Worrell, M.D. Claimant testified that the care has not relieved his complaints and that he continues to experience headaches and numbness in his arm. Drs. Howe, Smith, MacKenzie and Worrell have diagnosed claimant as having herniated cervical discs at the C5-6 and C6-7 levels (Exhibits 18 & 24, Exhibit 25, page 6 and Exhibit 30, pages 17 & 18). At one point in time Dr. Jochims declined to provide further care to claimant because he perceived claimant to be misrepresenting things to him. In exhibit 9, a report from Dr. Jochims dated January 7, 1985, he indicates that he had treated claimant for an alleged work injury with J. I. Case Company in 1977 and was later called as an expert witness in the case. When claimant saw Dr. Jochims for the currently litigated injury he denied ever having seen Dr. Jochims previously and further denied ever having been employed by J. I. Case (Ex. 9). Drs. MacKenzie, Howe and Worrell are all of the opinion that claimant's condition is such that surgery is indicated (Ex. 23,. 24 & 25, p. 7). Dr. Worrell felt that there was a causal connection between the condition he found in claimant's cervical spine and the alleged injury of August 8, 1985, but he was unaware that claimant had seen Dr. MacKenzie for neck pain in 1984 (Ex. 25, pp. 8-10). Dr. Worrell felt that the spurring that he observed in diagnostic tests concerning claimant's cervical spine had existed prior to August 8, 1985, but that the cause of disc herniation could be anything (Ex. 25, p. 6). Dr. MacKenzie felt that the spurring and degeneration observed in claimant's cervical spine was a progressive condition that had occurred subsequent to a traumatic injury and that would have occurred at least nine to 12 months before November 7, 1985. X-rays from January, 1985, did not show spurring (Ex. 30, pp. 24-26). Dr. MacKenzie stated that the accident of August, 1985, may have excerbated and accelerated the need for surgery but that he was certain that by the time the August, 1985, alleged injury occurred that disc degeneration was well underway (Ex. 30, p. 28). CAMPBELL V. UMTHUN TRUCKING CO. Page 3 When claimant applied for employment with Umthun,Trucking Company, he made several misrepresentations of fact on his employment application. He denied ever having been injured on the job yet his testimony has revealed at least three claims for workers' compensation benefits, some of which resulted in payments to him. He also denied ever receiving workers' compensation on the application form. Claimant misrepresented his prior employment history by indicating approximately 10 years of continuous employment with Earl Lumsden Trucking, a business which he admitted had never existed. At hearing claimant admitted that he had been employed by several employers. On the application claimant indicated that he had received his last physical examination by a Dr. Seitz on May 16, 1984, when in fact he had been examined by Dr. MacKenzie on January 29, 1985, only two days prior to the date he filled out the application. Exhibit 7 shows claimant to have made complaints on January 29, 1985, which are similar to those he urges arose from the alleged injury of August, 1985. When claimant took his preemployment physical for Umthun he failed to disclose the previous problems he had been having with his back and neck. Claimant's misrepresentations made to Dr. Jochims have already been referred to. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 8, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant's petition sets forth an alleged injury date of July 8, 1985. The first report of injury on file indicates an injury date of August 8, 1985. There is reference in the record in the first report of injury and in some medical reports that indicates that claimant was seen and x-rayed at a clinic in Murphy, Missouri. No records, however, from that institution are in evidence. The condition of which claimant complains is one which is not obvious from simple observation. Whether the alleged incident on which he bases his claim occurred on August 8 or July 8, 1985 is not of particular importance when the evidence from the medical practitioners indicates that the cervical spine spurring was a condition which would have preexisted either date. Exhibit 6 clearly shows that claimant complained of an injury arising from falling off a truck on November 28, 1984 and then made complaints of pain involving his neck and numbness in his right hand on January 29, 1985 (Ex. 7). From the objective evidence in the record, it would appear that the condition of claimant's cervical spine is as likely related to the November, 1984, incident as to any alleged incident from July or August of 1985. It is only by claimant's subjective complaints that a determination can be made regarding the source or sources of the problem in his cervical spine. Claimant appeared at hearing where his appearance and demeanor were observed. The record is replete with instances of where he has made misrepresentations in order to get whatever it may have been that he wanted. At CAMPBELL V. UMTHUN TRUCKING CO. Page 4 hearing he stated that his memory is unreliable. It is found that claimant has failed to establish his credibility as a witness. Accordingly, his testimony cannot be relied upon. The complaints of which Campbell testified at hearing are not greatly different from those which appear in the progress notes of Dr. MacKenzie for January 29, 1985 found in exhibit 7. Claimant has been employed as a truck driver subsequent to July and August of 1985 and the fact that he was employed with Umthun for approximately five months is not a particularly persuasive indication that his condition has in any way worsened beyond the normal progressive nature of the degenerative condition as indicated by Dr. MacKenzie. The alleged injury of July or August, 1985, appears quite similar to the injury alleged to have occurred in November, 1984, as both appear to deal with falling from a truck. The alleged injury was unwitnessed and is not corroborated by any evidence confirming that claimant fell from the truck. When all of the evidence as a whole is considered and given the weight which it deserves, it is found that claimant has failed to prove by a preponderance of the evidence that he fell from a truck in July or August of 1985. He has failed to prove by a preponderance of the evidence that he sustained an injury that arose out of and in the course of his employment in July or August of 1985. He has failed to prove that the complaints which he voiced at hearing and for which he has received medical treatment are related in any way to any injury that occurred while he was employed by Umthun Trucking Company. The fact that the employer and its insurance carrier have paid benefits to claimant does not constitute an admission of liability. Code sections 85.26 and 86.13. FINDINGS OF FACT 1. Daniel J. Campbell is a resident of the State of Iowa who was employed by Umthun Trucking Company as a truck driver from February, 1985 through August, 1985. 2. Daniel J. Campbell misrepresented facts dealing with his medical history and employment history when he applied for employment with Umthun Trucking Company. He misrepresented material facts concerning his medical history when seen by Dr. Harding for his preemployment physical and when seen by Dr. Jochims for purposes of treatment for the alleged injury upon which this claim is based. 3. Claimant is not a credible witness and his testimony cannot be relied upon. 4. Daniel J. Campbell has failed to prove that he sustained any injury by falling off a truck in July or August of 1985 while he was employed by Umthun Trucking Company. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant has failed to prove by a preponderance of the evidence that he sustained an injury which arose out of and in CAMPBELL V. UMTHUN TRUCKING CO. Page 5 the course of his employment with Umthun Trucking Company. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. The costs of this proceeding are assessed to the parties with each responsible for payment of the cost incurred. Signed and filed this 16th day of January, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road Keokuk, Iowa 52632 Mr. Craig D. Warner Attorney at Law 321 North Third Street Burlington, Iowa 52601 1402.20 Filed January 16, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANIEL J. CAMPBELL, Claimant, VS. FILE NO. 804104 UMTHUN TRUCKING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and INTERCONTINENTAL INSURANCE MGRS., Insurance Carrier, Defendants. 1402.20 The record was replete with misrepresentations that claimant had made to his employer. The record further showed that a prior injury had produced symptoms similar to those of which claimant complained at hearing and would have brought him to the point of having symptoms similar to those of which he voiced complaint at hearing. Where the alleged injury was unwitnessed and generally uncorroborated by any objective evidence or disinterested witness, claimant was found to have failed to have carried the burden of proving that he sustained an injury that arose out of and in the course of employment. Page 1 before the iowa industrial commissioner ____________________________________________________________ : FRANK WILLIAMS, : : Claimant, : : vs. : : File No. 804198 IOWA PAVING CONTRACTORS, INC.,: (IOWA PAVERS), : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Claimant appeals from an arbitration decision denying claimant benefits for an alleged injury which occurred on or about September 12, 1985. The record on appeal consists of the transcript of the arbitration and defendants' exhibits 1 through 24. Both parties filed briefs on appeal. Claimant filed a reply brief. issues Claimant states the issues on appeal are: 1. Whether the deputy erred in refusing to admit claimant's witness and exhibits into evidence. 2. Whether the deputy erred in ruling that the claimant failed to prove that his injury arose out of and in the course of his employment. review of the evidence The arbitration decision dated August 26, 1988 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. applicable law The citations of law in the arbitration decision are appropriate to the issues and evidence. analysis Page 2 The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984), states that the statute is to be liberally construed in favor of the worker. It does not, however, stand for the proposition that the facts should be liberally construed. Inconsistent facts are resolved by the trier of fact based upon his or her expertise and special knowledge. The statues, not facts, are construed liberally. findings of fact 1. Claimant was not a credible witness. 2. At hearing, claimant alleged that on or about September 12, 1985 while he was working with three other employees of Iowa Paving Contractors, a screet weighing approximately 400-600 pounds fell on his right shoulder. 3. Claimant could identify September 12, 1985 only as a "possible" injury date. 4. Claimant provided various explanations of how his injury occurred. 5. Claimant provided various histories with regard to the course of his pain and symptoms. 6. Claimant failed to present credible evidence to sustain his burden that he incurred an injury which arose out of and in the course of his employment. conclusion of law Claimant failed to sustain his burden that he incurred an injury which arose out of and in the course of his employment. WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, it is ordered: That claimant is entitled to take nothing from this proceeding That claimant pay the costs of this action including the costs of transcription of the arbitration hearing. Signed and filed this ______ day of February, 1990. ___________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Page 3 Copies To: Mr. Donald Gonnerman Attorney at Law 212 Equitable Bldg. Des Moines, Iowa 50309 Ms. Lorraine J. May Attorney at Law 4th Flr., Equitable Bldg. Des Moines, Iowa 50309 1401, 1402.20 Filed February 26, 1990 DAVID E. LINQUIST before the iowa industrial commissioner ____________________________________________________________ : FRANK WILLIAMS, : : Claimant, : : vs. : : File No. 804198 IOWA PAVING CONTRACTORS, INC.,: (IOWA PAVERS), : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1401, 1402.20 Claimant was not a credible witness. Claimant could identify September 12, 1985 as a "possible" injury date and provided various explanations of how his injury occurred. Since claimant was unable to provide a consistent explanation, he failed to sustain his burden that he incurred an injury which arose out of and in the course of his employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK WILLIAMS, Claimant, File No. 804198 vs. IOWA PAVING CONTRACTORS, INC., A R B I T R A T I O N (IOWA PAVERS) D E C I S I O N Employer, and AETNA CASUALTY & SURETY CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Frank Williams, claimant, against Iowa Pavers, employer, and Aetna Casualty & Surety Co., insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury of September 11, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner February 18, 1988. The record was considered fully submitted upon the receipt of the parties' briefs April 4, 1988. At the time of the hearing, defendants objected to all of claimant's witnesses and exhibits on the basis that claimant failed to serve a witness/exhibit list on defendants until February 10, 1988, some nine days before hearing. The hearing assignment order, entered October 29, 1987, provides, in pertinent part: 6. 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 timely served upon an opposing party as ordered herein. (Emphasis Original) Compliance with this order is clearly not optional. This order was not entered by the undersigned and is not, therefore, subject to alteration or modification by the undersigned as one industrial commissioner has neither the authority nor the jurisdiction to overrule or change another deputy's order. Swift v. Allied Construction Services, Inc., (Appeal Decision filed June 24, 1988). Therefore, as there is no dispute claimant did not serve a witness and exhibit list in accordance with the hearing assignment order, defendants' objection to all of WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 2 claimant's witnesses and exhibits is sustained. Claimant's exhibits A, B, C, D, E and F and the testimony of Leslie Duncan are not admitted into evidence and were not considered in arriving at this decision. It is, however, reasonable to assume that a complainant in any matter will testify on their own behalf even absent the service of a witness list. Therefore, claimant's testimony will be accepted. Accordingly, the record in this matter consists of the testimony of claimant, Andrea Ferm and Douglas Ackerman; claimant's exhibits G and H; and defendants' exhibits 1 through 24, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved February 18, 1988, the following issues are presented for resolution: 1. Whether the claimant sustained an injury which arose out of and in the course of his employment; 2. Whether the alleged injury is the cause of temporary and/or permanent disability; 3. Claimant's entitlement to weekly benefits; 4. The applicability of the odd-lot doctrine; 5. The appropriate rate of compensation; and 6. Claimant's entitlement to certain medical expenses provided by Iowa Code section 85.27. FACTS PRESENTED Claimant testified that on or about September 12, 1985 (which he identified as a "possible" date), he was working with three other employees of Iowa Paving Contractors helping to put a screet onto a cart when another employee slipped and claimant caught the weight of the machinery on his shoulder. Claimant stated he felt "very little" burning sensation in his right shoulder and that he continued to work out his shift that day, assisting to pour concrete. Claimant explained he later advised his foreman that his shoulder was "killing" him. On October 24, 1985, claimant gave a statement to Marji Shade of the employer's insurance company concerning how the alleged injury happened stating: Q. O.K. Can you tell me how the accident happened? From start to finish. A. Well, I really don't know really how it happened. We just picked --picking up a lot of heavy stuff, picked up a log 29 feet long and we had to pick it up over our heads with the motors on it. And we was picking up 10 inch forms and throwing them to the people and they weigh 400 pounds. That's the only thing I know I done. That's--I cannot say one situation was--you know, what caused it cause I don't know. Q. O.K. There wasn't a specific occurrence? A. No, maam. [sic] Q. O.K. A. Far as I know, I mean I felt good when we was WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 3 picking up the forms and when we picked the shortly after that I had a hurting in my shoulder and it got worse nobody could even touch it. Q. O.K. About how long was that, sir? A. I worked rest of that week and went to a doctor in Oskaloosa and he said I pulled a muscle. (Defendants' Exhibit 17) At hearing, claimant could not recall whether or not he worked the day following this incident but did remember that on the weekend, while cleaning closets for a rummage sale with his wife, his wife reached for his shoulder for support and that he, at that time, "went to the ground." Claimant offered that he went to the emergency room at Mahaska Hospital but did not identify any treatment rendered there. Claimant testified that he worked for about three days after this but that his shoulder was very painful. He stated he sought treatment at the University of Iowa Hospitals and Clinics at a time when he was in Iowa City where he was advised to rest and given a sling and cervical collar to wear. Claimant denied working during the month of October 1985 but he admitted he "might have hauled wood" during November 1985. Claimant stated he tried to go out and do what he used to be able to do but that he could not due to headaches, hand swelling to where he could not close his fist and pain in his shoulder and neck. Claimant denied that he has worked anywhere since December 1985 although he applied for and was granted unemployment insurance benefits in 1986. Claimant testified he continued to seek treatment for his pain and that he was released by his doctor in approximately May 1986 after his doctor told him to retire and that the physician "could not do anything more" for him in the way of treatment. Claimant maintained he continues to suffer from serious headaches and that he takes up to 38 aspirins per day. Claimant stated that in September 1986 after attempting a job which required he unload water softener he was "down for two days" and that in the summer of 1986 he tried to sell loads of wood in Colo, Iowa, but he could not drive, his arms swelled and his neck hurt after only two hours of work. Claimant explained that in the winter of 1987 each attempt he made at cutting firewood (i.e. using a chain saw from 15 minutes to four hours per day) caused him to "go down" and that at most he could average two loads of wood per week. Claimant testified that prior to this September 1985 incident his health was good and that he was able to lift a "couple hundred pounds." Claimant alleges that as a result of the September 1985 incident he continues to experience problems with his hands, arm, shoulder, neck, headaches, back, legs and with high blood pressure. Andrea Ferm, who identified herself as a rehabilitation analyst and nurse with Principal Financial, testified she first made contact with claimant in late January 1988 and set a goal to place claimant in a job suitable to his capabilities. She explained she reviewed all available medical records and that based on the restrictions placed on claimant by his physicians, claimant would be able to do work in the sedentary, light or medium work categories. Ms. Ferm stated that when she contacted WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 4 claimant's physician to inquire into whether or not claimant would be able to perform "light" delivery work or "light" fabrication work, no objection was raised by the doctor (Hines). Ms. Ferm testified claimant was advised of a part-time position as a motor route driver with the Ottumwa courier (for which claimant has not applied according to claimant's testimony) and a position with Norris Asphalt Paving as a flagman-pilot car driver on main and side roads. (Note: At the time of the hearing, this employer had been called out of town and an intention was expressed that a follow-up on this job would be made). Ms. Ferm explained this position paid between $5.25 and $6.50 per hour and that the lower wage mentioned to claimant was deemed unsatisfactory by him. Douglas Ackerman, who identified himself as a senior claim representative with Aetna Casualty & Surety, testified he is currently "in charge" of claimant's claim and that claimant had been paid $189.84 per week since September 12, 1985 for a total payment of $11,741.84. Thomas Carlstrom, M.D., Neurosurgeon, testified he saw claimant on one occasion, August 11, 1985, during which time he attempted to take a history, conducted a physical and neurological examination and took the opportunity to review previous test results and treatment records. Dr. Carlstrom stated the physical examination was generally normal except for some objective sensory changes in the arm and that the only "true objective abnormality" he was able to find was that one reflex was slightly hypoactive on the right side in the right arm. Dr. Carlstrom explained claimant gave a history that in September 1985, 400 to 600 pounds fell on his right shoulder. However, Dr. Carlstrom also stated during the course of his deposition that: A. ...He described to me a variety of symptoms that were changed during the exam, and I after talking with him used the art of medicine to convince myself that I wasn't going to get very far with him in terms of trying to figure out from his history exactly what had happened;... (Def. Ex. 1, p. 25) With the history of 400 to 600 pounds falling on claimant's shoulder, Dr. Carlstrom opined that any complaints claimant might have relative to his low back and leg pain, headaches, numbness and high blood pressure would not be related to any such incident. Dr. Carlstrom concluded claimant's symptoms and test results were consistent with a brachial plexus injury and originally opined on August 19, 1987 that claimant had an impairment of five to ten percent of the upper right extremity and two to three percent of the body as a whole. However, Dr. Carlstrom had no recommendation for any specific further treatment, encouraged rather than discouraged activity, did not place any restrictions on claimant and finally testified that according to the AMA Guidelines "I shouldn't have given him anything. (Def. Ex. 1, p. 30) Discussing the nature of a brachial plexus injury, Dr. Carlstrom explained that it is just about always associated with a traumatic event and that it would be "just about impossible" to have a time lapse of any sort between the traumatic event and the onset of symptoms as described by claimant in that pain should begin immediately. Dr. Carlstrom concluded: WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 5 Q. Doctor Carlstrom, if, in fact, the history that Mr. Williams gave that the onset of his pain was several hours after the alleged incident -- and this time, I'm talking about his history where he said an object four- to six-hundred pounds fell on his shoulder -- if there was no onset of pain for a few hours after that injury, would it still be your opinion that the brachial plexus injury which has been the working diagnosis in his case resulted from that incident? A. Well, if that were, in fact, the case, I would think that, no, it did not occur with that incident. (Def. Ex. 1, p. 43) The medical records of the University of Iowa Hospitals and Clinics give a history that claimant was originally injured in early September 1985 when he "felt a pop in his shoulder and had pain and discomfort in the region of the AC joint" as he was working on the job while lifting a heavy weight. When seen September 26, 1985 by William F. Blair, M.D., claimant was diagnosed as having a first degree AC separation and placed in a sling to wear on an as-needed basis. One month later, claimant was found to have full range of motion of the shoulder but maximal tenderness over the right AC joint. When seen on November 5, 1985, claimant stated he had had cervical spine pain located primarily over the,left side since mid-September 1985 which the doctors opined was not related to the right arm pain. Claimant received an injection into the right AC joint and when next seen on November 26, 1985 was encouraged to return to work December 9, 1985 after refusing a further non-steroidal injection. Claimant returned to see Dr. Blair April 8, 1986 and an arthrogram, to rule out the possibility of rotator cuff pathology, was scheduled for April 22, 1986. Review of the right shoulder arthrogram radiographs showed: 1) right AC joint arthritis, 2) s/p right shoulder injury by history with no evidence of tear or arthrographic examination. In addition, there was noted to be small osteophytes present on the inferior margin of the humeral head and some narrowing of the cartilage shadow on the arthrogram. (Def. Ex. 5) On May 26, 1986, Dr. Blair concluded: Mr. Williams' basic problem, degenerative joint disease of the right glenohumeral and acromial clavicular joints, are not directly related to the accident that he experienced at work. However, this accident may well have exacerbated his underlying condition, resulting in an increased pain experience. His physical findings and symptoms have been suggestive of an inflammatory process in his rotator cuff and in his biceps tendon, both of which are features of the exacerbation of his underlying condition. In my opinion, Mr. Williams has a permanent impairment of the right upper extremity and of the whole man. Generally, I rely on the AMA Guidelines to the Evaluation of Permanent Impairment. In Mr. Williams' WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 6 circumstance, his range of motion, although intermittently painful, has been nearly normal. This observation has varied with the examination, depending upon his pain experience and his determination to particpate [sic] in the range of motion assessment. Therefore, I am going to depart from guidelines and give my impairment rating on an experience based opinion. I estimate his impairment of the right upper extremity to be 10% which is equivalent to a 6% impairment of the whole man. (Def. Ex. 5) Marc Edward Hines, M.D., Neurologist, in a letter dated January 15, 1987, discussing the results of an EMG nerve conduction velocity, relayed claimant's history as: This patient is a 50-year-old, non-hypertensive, non-diabetic, non-smoker, non-drinker, and tobacco chewer who, on September 11, 1985, had a 400-600 pound "screet" fall on his right shoulder. He had no immediate problem, but about 5:30 - 6 P.M., began having the onset of soreness in his right shoulder. (Def. Ex. 6) Dr. Hines could not relate claimant's high blood pressure to the injury or medications he was taking as claimant's blood pressure was very consistently and persistently elevated. Dr. Blair stated: "Frankly, I think that he has a spontaneous essential hypertension and that this is a separate and distinct condition not related to his injury or his treatment for his injury." (Def. Ex. 3, p. 26) With regard to claimant's complaints of low back pain, Dr. Hines stated that while the alleged event of September 1985 may have caused such pain, he "would have a much harder time drawing a direct relationship between the back pain that is in his injury--I would be hesitant to do so. I don't think I have sufficient information to make that connection." (Def. Ex. 3, pp. 39-40) When asked whether or not the lower back pain could be caused by degenerative disc disease, Dr. Hines stated that claimant does not have a herniated or slipped disc but that in no way excludes the fact that he has arthritis in his back causing the back pain. Dr. Hines stated that: Q. I guess what you're saying is that it's possible either way. It is possible that if he did have a degenerative condition that was causing these symptoms, that whatever occurred on September 11th did not exacerbate the condition. A. Well, it's possible. (Def. Ex. 3, p. 47) With regard to claimant's headaches being related to a brachial plexus stretch injury, Dr. Hines stated that it was entirely possible that the pain claimant was experiencing triggered his migraines but for claimant to have migraines it would be assumed that claimant must have had some underlying tendency to them. The report of Steven A. Adelman, D.O., of Neurological Associates of Des Moines, P.C., shows claimant was seen by him in WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 7 December 1987 and gave a history of: Mr. William [sic] relates the onset of his difficulties on September 11, 1985 when he was picking up a 400-600 pound slab of cement with another worker when the worker slipped and Mr. William's [sic] right arm was pulled downward. He felt an aching, but went back to work and drove home. Later that evening he noted that his right shoulder was extremely painful .... (Def. Ex. 15) APPLICABLE LAW 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). The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 8 employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). ANALYSIS Of first concern is whether or not claimant sustained an injury which arose out of and in the course of his employment. Although claimant argues that since defendants have filed a "memorandum of agreement" and paid compensation that a good faith dispute over whether or not an injury arose out of and in the course of employment could not be found, claimant is clearly in error. First, no "memorandum of agreement" was filed in this case as claimant's alleged injury took place in September 1985 well after the memorandum of agreement was abandoned in the state of Iowa. The Iowa Code was amended effective July 1, 1982, to abolish the memorandum of agreement system for all injuries occurring after that date. Iowa Code sections 85.27 and 86.13. Second, it is a well settled principle in workers, compensation in Iowa that the mere payment of compensation benefits does not establish liability on behalf of the employer. See, e.g., Ward v. North Iowa Express, Inc., 34 Biennial Report of the Iowa Industrial Commissioner 338 (1979). From the time its answer was filed to the time of hearing, defendants have disputed that claimant sustained an injury which arose out of and in the course of his employment. There has been no admission of liability, By observation of the claimant and his demeanor, claimant was not a credible witness. In addition, claimant has given various accounts of how this incident occurred and the pattern of his symptoms thereafter. All of this calls into question not only claimant's credibility but the credibility of the physicians who rendered opinions in this case. A review of the evidence shows claimant has given various accounts of this alleged injury. At hearing and at the time that he filed his original notice and petition, claimant alleged that the injury occurred when he was helping to lift a screet onto a cart and it fell on his shoulder. Claimant relayed to Dr. Carlstrom that his symptoms began following an incident where 400-600 pounds fell on his right shoulder. However, Dr. Carlstrom found claimant to be such a poor historian that little weight was given to claimant's explanation. The emergency room record from the University of Iowa Hospitals and Clinics reflects a history of shoulder problems beginning when claimant was carrying heavy equipment on the job one week prior to his being seen at the hospital which resulted in right arm and shoulder pain. Other records reflect that claimant was injured when he felt a "pop" in his shoulder and had pain and discomfort in the AC joint. Dr. Hines relays a history that 600 pounds dropped on claimant's right shoulder. Dr. Adelman's history shows claimant was injured when his right arm was pulled downward while picking up a slab of cement. When claimants statement was given to a representative of defendants' insurance company, he could not relay exactly how an accident happened but appeared to have been emphatic that there was no specific occurrence which resulted in his symptoms. There either was or was not a specific occurrence. When there is only one person testifying as to how something occurred and that one person gives a different version of the story depending on who he is speaking to, the question does not boil down to the "greater weight of evidence." It boils down to a question of credibility and screams for an answer to: When is the witness, if at all, telling the true version of the story? WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 9 Further, certain medical histories reflect that after the "incident" claimant experienced immediate pain while others reflect claimant experienced an ache while still others reflect that hours passed before the onset of soreness in the shoulder. Notwithstanding counsel's attempts to elicit testimony to the contrary, Dr. Carlstrom was emphatic that a brachial plexus injury results in immediate pain and that it would be just about impossible to have a time lapse of any sort between the time of injury and the onset of pain. Thus, the question inevitably arises as to exactly when and where this injury occurred and the evidence fails to answer that question. The record is obviously replete with inconsistencies and evidence which cannot be reconciled. Claimant testified at the time this alleged injury occurred he was working with three other employees and maintained that another employee's fall or stumble caused his injury. Claimant even identified these individuals by name but clearly failed to present any testimony from any of these coworkers which might tend to corroborate his story. Although the statute is to be construed liberally in favor of the injured worker, this principle cannot be extended so far so as to require an adjudicator to resort to assumption, innuendo, speculation and "guess work" to arrive at a decision. There are not small variations in claimant's story but rather large inconsistencies which simply cannot be ignored. Perhaps it could be said that claimant's failure to stick with one story has led to his own demise. Generally, if a party has the power to produce more explicit and direct evidence than it chooses to, it may be fairly inferred that the other evidence would lay open deficiencies in that party's case. Crosser v. Iowa Dept. of Public Safety, 240 N.W.2d 682, 685 Iowa 1976). Such an inference is appropriate in a case where even claimant can identify only a "possible" date of injury. While the undersigned may not dispute that "something" occurred during claimant's employment, "something" is insufficient to establish claimant sustained an injury which arose out of and in the course of his employment. It is concluded, therefore, that claimant has failed to sustain his burden of establishing an injury which arose out of and in the course of his employment and accordingly is entitled to nothing further from these proceedings. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made. 1. Claimant was not a credible witness. 2. At hearing, claimant alleged that on or about September 12, 1985 while he was working with three other employees of Iowa Paving Contractors,a screet weighing approximately 400-600 pounds fell on his right shoulder. 3. Claimant could identify September 12, 1985 only as a "possible" injury date. 4. Claimant provided various explanations of how his injury occurred. 5. Claimant provided various histories with regard to the course of his pain and symptoms. WILLIAMS V. IOWA PAVING CONTRACTORS PAGE 10 6. Claimant failed to present credible evidence to sustain his burden that he incurred an injury which arose out of and in the course of his employment. CONCLUSION OF LAW Wherefore, based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to sustain his burden that he incurred an injury which arose out of and in the course of his employment and is therefore entitled to nothing further from these proceedings. ORDER THEREFORE, IT IS ORDERED: Claimant is entitled to nothing further from these proceedings. Costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 26th day of August, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Donald Gonnerman Attorney at Law 212 Equitable Bldg. Des Moines, IA 50309 Ms. Lorraine J. May Attorney at Law 404 Equitable Bldg. Des Moines, IA 50309 1402.30 Filed August 26, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK WILLIAMS, Claimant, File No. 804198 vs. A R B I T R A T I O N IOWA PAVING CONTRACTORS, INC., (IOWA PAVERS) D E C I S I O N Employer, and AETNA CASUALTY & SURETY CO., Insurance Carrier, Defendants. 1402.30 Claimant, who gave various accounts of how his alleged injury occurred and various accounts of the onset of pain and symptoms, was found not to be a credible witness. This, coupled with the exclusion of claimant's evidence for failure to comply with the hearing assignment order, led to the conclusion claimant failed to sustain his burden of establishing an injury arising out of and in the course of his employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE ALLEN QUILLEN, File No. 804235 Claimant, A R B I T R A T I O N vs. D E C I S I O N SMITHWAY MOTOR EXPRESS, Employer, F I L E D and OCT 27 1989 LIBERTY MUTUAL INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant Wayne Allen Quillen against Smithway Motor Express employer and Liberty Mutual Insurance Company insurance carrier, defendants, to recover benefits as the result of an alleged injury sustained on September 10, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner in Fort Dodge, Iowa on the 7th day of September, 1989. The record consists of the testimony of the claimant, claimant's wife, Doris Quillen, and Lewis Vierling and claimant's exhibits 1 through 31 and defendants' exhibits A, subparts 1 through 9. ISSUES The only issue for resolution is the extent of claimant's permanent disability. REVIEW OF THE EVIDENCE Claimant testified he completed the eighth grade in 1957 and then quit school to support his family by performing farm work. Claimant described the various jobs he had prior to becoming employed with the defendant employer in 1980. Claimant's prior jobs were basically manual labor involving farm work, general labor construction, railroad section crewman, brick and tile manufacturing, glove manufacturing, assistant manager and mechanic at Standard Oil, brick layer and truck driver. Claimant said he also was in the United States military service three years. Claimant was first employed by the defendant employer in 1980 as an over-the-road truck driver. Claimant said he had no additional special or formal education prior to September 10, 1985. Claimant stated he had no injuries prior to September 10, 1985, except he suffered two broken ribs in a car accident in 1983. Claimant said he has never filed a workers' compensation case prior to September 10, 1985. Claimant emphasized he never experienced a range of motion problem in his left arm or shoulder prior to September 10, 1985. Claimant testified that on September 10, 1985 he had a load of sheet rock he was delivering for the defendant employer. Claimant said he slipped on the edge of the tarp while trying to cover his load and fell to the ground. Claimant said he felt no immediate pain until he got on the trailer again to unload. Claimant stated his left side and shoulder were hurting. Claimant said that he rolled up the tarp after he finished unloading. Claimant testified that he drove to a truck stop and sought medical help. Claimant indicated he had two broken ribs which were the same two ribs he previously broke. Claimant stated his shoulder was dislocated, but that it popped back into place. Claimant said he obtained some medicine and called defendant employer who told him to wait and see if he could continue driving. Claimant said he felt better and decided to continue driving because if he left the truck in Pennsylvania, he would not see it again. Claimant described difficulty driving. Eventually, another driver rode with claimant to the home base in Fort Dodge, Iowa. Claimant sought medical help which included ultrasound and physiotherapy. Claimant said he continued to have pain in his left shoulder, down his arm and at the base of his neck. Claimant indicated that he had trouble lifting and that he felt a very light numbness and tingling. Claimant testified that Scott Neff, D.O., diagnosed a torn rotator cuff, but suggested that Robert J. Weatherwax, M.D., in Fort Dodge perform the surgery since claimant lived in Fort Dodge. Surgery was performed by Dr. Weatherwax on November 6, 1985. Claimant said he has better range.of motion since the surgery, but still has the same pain and numbness. Claimant emphasized that he would not have had the surgery if he could choose now. Claimant contends the surgery did not help. Claimant said he last visited Dr. Weatherwax in February of 1988. Claimant stated his restrictions are: No lifting over 5-15 pounds, no overhead motion in lifting, and never drive a truck again. Claimant said Dr. Weatherwax recommended vocational rehabilitation for the claimant approximately six months after the surgery. After completing vocational rehabilitation, claimant said he went to Iowa Lakes Community College and obtained a GED. Claimant acknowledged he tested at the vocational rehabilitation as having cooking aptitude. Claimant trained in the rehabilitation kitchen. He said he learned to prepare food and bake. Claimant said he had trouble handling the big pots and could not hold them to wash. Claimant said the dishwasher was also hard to open. Claimant's training period was four months, September 1986 to January 22, 1987. Claimant acknowledged he made no job search since his termination with Iowa Community Industries around January 22, 1987 until he obtained his Coastal Mart job in July of 1988. Claimant's workers' compensation ended in April of 1988. Claimant emphasized he wanted to be a cook so he followed up in the rehabilitation program. Claimant said he and his wife wanted to operate a place of their own. Claimant explained that Iowa Community Industries referred him to Red Lobster in Omaha and Cedar Falls. Claimant contends there was no special training or authority given him. Claimant related a possible job interview mix-up between Cedar Rapids and Cedar Falls and Iowa Community Industries could not tell the claimant which place was correct. Claimant indicated he would have accepted a position with the Red Lobster, but decided to go to college in Ankeny in August of 1988. Claimant acknowledged that he never did go to school as he needed money. Claimant said he does not intend to go to.college. Claimant stated he started working for Coastal Mart in July of 1988 at $3.35 per hour, 20-30 hours per week. Claimant indicated he was unable to do this job alone as he has no help and the job required loading the cooler, stocking shelves, sweeping and mopping in addition to receiving money from customers. Claimant said he is having a hard time handling this job. Claimant admitted he does not intend to stay at this Coastal Mart job forever. Claimant indicated that since July of 1988, he has worked an average of 22.25 hours per week. Claimant stated he has applied for several jobs since he has worked for Coastal Mart, but they all paid minimum wage. Claimant emphasized that defendant employer did not offer claimant any other job. Claimant related the present activities he is unable to do because of his September 10, 1985 injury, namely: Gardening, working on his car, changing motor oil, mowing the yard, bowling, fishing, camping, riding a motorcycle, driving a car and sleeping. Claimant contends he could never safely drive a truck again as he could not pass a DOT physical. Claimant acknowledged that he now has a lazy left eye problem and a left eye cataract. Claimant admitted he has had two accidents since the September 10, 1985 accident, but that neither has caused any current injury residue. Claimant acknowledged that a Mr. Lewis Vierling, a vocational rehabilitation consultant, discussed a Country Kitchen job with him. Claimant indicated he was familiar with some of the problems with the job description and prior workers' dissatisfaction. Claimant said he decided to continue with Coastal Mart rather than quit and take another job and then end up with no job at all. Claimant admitted that he did tell Mr. Vierling that he would contact Country Kitchen November 22, 1988 regarding employment. Claimant did not make the contact. Claimant gave high turnover as the reason for no contact. Claimant also said that he understood he could be washing dishes and mopping floors instead of cooking. Claimant said this was the only potential employer to whom Mr. Vierling referred him. Doris Quillen, claimant's wife, testified that claimant was in good health and exhibited no left shoulder problems prior to September 10, 1985. She emphasized that claimant was always on the go helping people, bowling, fishing, riding a motorcycle, vacuuming and.working around the house prior to September 10, 1985. Mrs. Quillen testified that claimant's pain continued after the 1985 surgery and that the claimant is still unable to do most of the activities he performed prior to September 10, 1985. Mr. Lewis Vierling, a vocational rehabilitation consultant, testified he works with people to get them back to work. He said his first contact with claimant was late May 1988. He indicated that through the various tests given to claimant, he showed interest in the culinary arts. Vierling testified he personally contacted Country Kitchen on behalf of claimant. In October of 1988, he suggested claimant contact the manager of Country Kitchen. Vierling said the starting wage was $5.00 per hour and after training, the job would pay $270-275 per week. Vierling stated claimant did not contact Country Kitchen. Vierling said claimant told him that claimant had talked to another person employed with Country Kitchen and that there was a problem as to the job description, as to what a cook would actually do, and job turnover. He said claimant told him he had talked to someone hired as a cook who is in fact washing dishes. Vierling said he concluded claimant was not interested in other employment outside his current employment. Vierling indicated that claimant was concerned that if he left the Coastal Mart job and if the Country Kitchen job was not successful, he would be out of a job entirely. Vierling opined that claimant's potential is in the restaurant field. Vierling agreed that based on the information provided to him and his contact with the claimant, claimant could not drive a truck. Vierling admitted he had a question himself as to cooking being claimant's choice. He acknowledged claimant wanted to work. Vierling testified that 85 is the suggested aptitude in the cooking area and that claimant scored a 54 on the manual dexterity. Vierling admitted that he still tried to find claimant a job at Country Kitchen, even though claimant was way below the minimum aptitude. Vierling emphasized there were no other opportunities to the claimant other than the Country Kitchen job. Vierling said that in November of 1988 he told his client, defendant insurance company, there was no use for him to do any further work in claimant's case. On October 23, 1985, Dr. Neff wrote: The patient categorically denies any previous difficulty with his shoulder, and it must be my opinion that the rotator cuff tear is the direct result of the fall off the back of his trailer, based on the information that I have been given. Because he is only 43 years old and laboring person, I think repair is warranted, combined with subacromial decompression, acromioplasty, and resection of the coracoacromial ligament. (Defendants' exhibit A, part 3, page 1) The patient had surgery performed by Dr. Weatherwax on November 6, 1985. Trinity Regional Hospital records reflect: NAME OF OPERATION: Manipulation of left shoulder with resection of distal clavicle, coraco and coracoacromial ligament, anterior acromioplasty and repair of rotator cuff tendon, left shoulder. (Defendants' exhibit A, part 5, page 3) Dr. Weatherwax's notes of November 4, 1986 reflect: Wayne is a year post repair of massively ruptured rotator cuff tendon. Essentially.functional range of active and passive motion, only mildly restricted at extremes, particularly rotation. Still lacks a great,deal of strength which is slowly improving. Mild to moderate discomfort with crepitance. I think he's achieved maximum improvement in regard to pain but may see improvement in regard to strength. I would rate him at 15% whole-man permanent impairment based on both AMA and American Academy of Orthopedic Surgeons Guidelines for Rating Permanent Impairment, with 5% for mild loss of motion, 5% for loss of distal clavicle, and 5% because of weakness and persistent pain. He is now discharged from follow-up. To return on as needed basis. Radiographically today there's no evidence of complication with well-seated staple in the humeral head. (Defendants' exhibit A, part 5, page 13) Dr. Weatherwax's notes of February 23, 1988 reflect: Mr. Quillen is back for a recheck on his left shoulder which underwent surgical repair of the torn rotator cuff in November of 1985. Wayne has good motion in his shoulder with fair strength. He continues to have a great deal discomfort along the scapular muscles and base of the neck particularly with activity. There's sufficient discomfort and weakness in his shoulder that on our evaluation today, would make truck driving out of the question including dealing with the load on a flatbed but also turning the wheel on a big truck. Because of the findings today, I would certainly recommend that this man is not capable to returning to truck driving and it's not likely that these findings will change significantly to ever allow this. At this point, I've started him on Feldene in the hopes that this might resolve some of the irritation around the shoulder although I have very little else to offer him at this point. (Defendants' exhibit A, part 5, page 16) Lewis Vierling, the vocational rehabilitation consultant, wrote in a report on June 15, 1988: SUMMARY: Mr. Quillen stated several times that he is not sure, at this point in time, what he is capable of doing vocationally due to his injury. He was very cooperative during the meeting and appeared to be wanting to find work, however, there was not a,great deal of structure involved in his job development efforts. He seemed somewhat confused about where to go from here in his efforts to secure employment. It is unfortunate that he did not apply for unemployment benefits as soon as he was receiving permanent-partial disability payments, instead of waiting until past the application expiration date. This consultant also has some concerns about the choice of career fields that he has entered into through training as a cook. The physical demands of that job appear to be in conflict with his capabilities at this point. (Defendants' exhibit A, part 8, page 4) APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 10, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 10, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). As 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 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). Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the termination of the healing period. Iowa Code section 85.34(2)(u) provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks that the disability bears to the body as a whole. Claimant is 47 years old. Claimant did not graduate from high school, but later obtained a GED. It is undisputed that claimant can no longer drive a truck for a living. Claimant has no real transferable skills from prior jobs. Claimant's vocational tests showed he had an aptitude for cooking. It appears claimant does not disagree with this. Claimant said his wife and he have thought about opening their own restaurant. Claimant has no apparent administrative skills or prior experience running his own business. Claimant has been working since July 1988 at a Coastal Mart handling money, stocking shelves, loading the cooler, sweeping and mopping. He averages approximately 22 hours per week. It is not clear whether he could work more hours than this. Claimant is earning $3.35 per hour. Defendants question claimant's motivation to work. There is considerable testimony as to claimant not following up on a possible job opportunity at Country Kitchen. Claimant seems to be familiar with the Country Kitchen operation before it closed and knew someone who was hired as a cook when it reopened under new management. It appears that claimant felt he would end up as a dishwasher and not solely as a cook. Claimant was fearful of giving up his Coastal Mart job and then ultimately having no job at all if the Country Kitchen job did not work out as he thought. The evidence shows that claimant has limitations in handling heavy pots. Claimant has a limitation in lifting over 20 pounds and with activity requiring overhead work. Claimant was asked to lift him arms to show his range of motion. It was obvious to the undersigned that the claimant attempted to lift his arm beyond the point that he should. The undersigned noticed claimant's breath suddenly being taken away. The undersigned believes that the circumstance under which this occurred was real and was not being faked by the claimant. Mr. Vierling, the defendants' vocational rehabilitation consultant, commented in his evaluation summary that he "also has some concerns about the choice of career fields that he has entered into through training as a cook. The physical demands of that job appear to be in conflict with his capabilities at this point." (Defendants' exhibit A, part 8, page 4). Mr. Vierling said that claimant scored 54 on a manual dexterity test whereas 85 is the suggested aptitude in this area. The job claimant presently has pays $3.35 per hour. If claimant took the job that Mr. Vierling suggested claimant seek as a prep-cook at Country Kitchen, notwithstanding whether claimant could perform it, it paid $5.00 per hour beginning pay and $270-275 per week after a training period (defendants' exhibit A, part 9, page 9). The undersigned can understand the dilemma that claimant is in. He is obviously limited in skills and intelligence. He has an aptitude for cooking, but it is apparent that the job as cook entails activity that could violate claimant's restrictions. Claimant has a job presently that he does not want to lose until he finds a better paying job that he can perform. The vocational rehabilitation consultant has come up with no other concrete jobs that he can say fit claimant's aptitude and ability to perform. Claimant has sought other jobs without success. Assuming claimant took the job defendants feel he should have sought, namely the Country Kitchen job, and assuming after training claimant was making $275 per week ($14,300 per year), this is approximately 50 percent less than the average income claimant was making in 1983, 1984 and 1985 before his injury and after annualizing his 1985 income. After taking into consideration claimant's age, the length of healing period, medical condition prior to and after the September 10, 1985 injury, the location and severity of the injury, claimant's education, work experience, motivation, functional impairment and claimant's inability because of the injury to engage in employment for which he is fitted, and other applicable factors, the undersigned finds that claimant has a 50 percent reduction in earning capacity. FINDINGS OF FACT Claimant's September 10, 1985 injury was work related as stipulated by the parties. Claimant's permanent disability was the result of claimant's injury on September 10, 1985 as stipulated by the parties. Claimant reached maximum improvement on November 4, 1986. Claimant has been paid 59.429 weeks of healing period as stipulated by the parties. Claimant has incurred a 15 percent permanent partial impairment to his whole body as a result of his work-related injury on September 10, 1985. Claimant's annualized income for 1985 was $31,318. Claimant's average income for 1983, 1984 and 1985 after annualizing his 1985 income was $28,150. Claimant's maximum anticipated annual income based on a 40-hour week is projected to be between $12,400 and $14,300. Claimant has a reduction in earning capacity. CONCLUSIONS OF LAW Claimant's injury arose out of and in the course of his employment. Claimant's permanent disability was causally connected to claimant's September 10, 1985 injury. Claimant has incurred a 15 percent permanent partial impairment to his whole body as a result of the work-related injury on September 10, 1985. Claimant has a 50 percent industrial disability. ORDER THEREFORE, IT IS ORDERED: Defendants shall be given credit for the fifty-nine point four two nine (59.429) weeks of healing period which they have already paid the claimant and which is the total amount of healing period benefits to which the claimant is entitled. Defendants shall pay unto the claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of three hundred eleven and 53/100 dollars ($311.53) per week beginning November 4, 1986. Defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The defendants have paid seventy-five (75) weeks of permanent partial disability benefits as of this date. Defendants shall pay interest on the benefits awarded herein as set forth in Iowa Code section 85.30. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this 27th day of October, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Neven J. Mulholland Attorney at Law 600 Boston Centre P.O. Box 1396 Fort Dodge, Iowa 50501 Mr. Tito Trevino Attorney at Law 503 Snell Building P.O. Box 1680 Fort Dodge, Iowa 50501 5-1803 Filed October 27, 1989 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE ALLEN QUILLEN, Claimant, vs. File No. 804235 SMITHWAY MOTOR EXPRESS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 5-1803 Claimant awarded 50 percent industrial disability.