BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LARRY G. MERCER, : : Claimant, : : vs. : : File No. 806573 VAN WYK, INC., : : A P P E A L Employer, : : D E C I S I O N and : : GREAT WEST CASUALTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision filed December 6, 1989 awarding claimant 40 percent permanent partial disability benefits on account of an injury allegedly sustained on September 3, 1985. The record on appeal consists of the transcript of the arbitration hearing and of joint exhibits 1 through 17. ISSUES Defendants state the issues on appeal as: 1) Whether the claimant sustained his burden of proof that a work incident of September 3, 1985 caused any disability; 2) whether claimant has sustained his burden of proof to show that his 1987 back condition and surgery are causally connected to his alleged September 3, 1985 work incident while working with Van Wyk, Inc.; 3) whether claimant has proved that he has suffered a 40 percent industrial disability as a result of his alleged work injury of September 3, 1985; 4) whether it is proper to order defendants to pay interest on judgments entered against the claimant for medical bills; and 5) whether defendants are required to reimburse Title XIX for amounts paid by Title XIX rather than the actual medical expenses incurred. REVIEW OF THE EVIDENCE The arbitration decision filed December 6, 1989 adequately and accurately reflects the pertinent evidence. It will not be totally reiterated. The following particulars are added, however. Dr. MacRandall released claimant for work on June 13, 1986. Dr. MacRandall had then assigned claimant an 18 percent body as a whole impairment rating as a result of his L3/L4 surgery. He restricted claimant to lifting from 30 to Page 2 40 pounds; advised claimant to stop frequently while driving and advised claimant to neither load nor unload his truck. Dr. MacRandall next saw claimant on May 14, 1987. Claimant then gave a history of having done well subsequent to his December 1985 surgery and work release of June 1986 until about one month earlier when he began experiencing low back and left leg symptoms, progressively. The left leg had become very floppy and noncontrollable about two weeks earlier. Drs. Shaffer and Mysnyk saw claimant on May 22, 1987. They also reported history of good relief from the 1985 surgery until the past one and a half months when claimant experienced low back and left lateral thigh and leg pain. The doctors' note indicates that the pain began "insidiously." APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues in the evidence with the following additions. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; his arrangement as to compensation; the extent and nature of the physician's examination; the physician's Page 3 education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendants. Where evidence to establish a proper apportionment is absent, the defendants are responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. ANALYSIS Defendants' statement of the issues on appeal suggest that defendants are not disputing whether claimant sustained an injury which arose out of and in the course of his employment on September 3, 1985. As that point is unclear, it is expressly stated that claimant has established an injury arising out of and in the course of his employment on September 3, 1985. Claimant's undisputed testimony was of a work incident on that date wherein he experienced pain in his low back after lifting a substantial weight in the course of his employment. Claimant, who apparently had been symptom free until that incident, then experienced symptoms sufficient that he consulted with a chiropractor who subsequently referred him to a medical doctor who then performed back surgery. Such chain of events is sufficient to establish that the incident of September 3, 1985 constituted an injury to claimant's low back arising out of and in the course of claimant's employment. Defendants expressly argue that claimant has not sustained his burden of establishing that the injury of September 3, 1985 caused any disability. Defendants apparently rely on the statement of Dr. Van Beek that claimant's back surgery of September 24, 1985 constituted a continuing irritation caused by his 1980 surgery and injury. Page 4 Dr. Van Beek stated that when one has back surgery, the resulting trauma to the area does not allow for complete recovery of structures and tissue and, therefore, surgery is often necessary in the area four to five years following initial surgery. Dr. MacRandall also made statements regarding the causation for the L3/L4 disc herniation. Dr. MacRandall reported that quite commonly on a historic basis where there has been weakness such as the bulging at L3/L4 revealed on claimant's 1980 CT scan, the disc may rupture at any time in the ensuing years. The doctor further stated: "I feel that he [claimant] had had a weakness dating back to 1980 and just completed the event of the rupture in the September, 1985 incident." (Joint Exhibit 8, page 4) The completion of the rupture, that is, the rupture on September 3, 1985 did not occur in a vacuum however. The rupture occurred in the course of claimant's employment while claimant was performing his duties of unloading boxed meat. Hence, the employment activity was a proximate cause of the September 3, 1985 disc rupture which rupture must be seen as a significant aggravation of claimant's past condition of a bulging disc at L3/L4. The record further establishes that claimant clearly had disability causally related to his September 3, 1985 disc rupture, his subsequent surgery at L3/L4 and his resulting residuals. On April 18, 1986, Dr. MacRandall assigned claimant an 18 percent body as a whole permanent partial impairment rating. On June 13, 1986 Dr. MacRandall returned claimant to work with a 30 to 40 pound lifting restriction. He also apparently advised claimant to make frequent stops while driving and to avoid loading and unloading. Such advice clearly placed claimant in a different status as far as earnings capacity than he had immediately prior to September 3, 1985. Indeed, Dr. Van Beek, the employer's chiropractic preemployment examining physician, had on December 31, 1984, recommended that claimant be hired as a trucker and noted claimant's lack of reoccurring spinal problems in the five years then subsequent to his 1980 surgery. The employer refused to rehire claimant on his release subsequent to the 1985 surgery. Such demonstrates that the employer, itself, subjectively perceived claimant's condition subsequent to his September 3, 1985 work injury as significantly different than his condition at both the time of his hiring in December 1984 and immediately prior to the September 3, 1985 work injury. Claimant clearly has sustained his burden of proof that his work injury of September 3, 1985 caused ascertainable disability. Defendants prevail on the issue of whether claimant has sustained his burden of proof to show that his 1987 back condition and surgery are causally connected to his alleged September 3, 1985 work injury. Dr. Weinstein does relate all of claimant's surgeries, that is, the 1980 surgery, the 1985 surgery and the 1987 surgery to claimant's degenerative disease process in his spine. He interconnects all three Page 5 surgeries as part of the same disease process. That appears to be a matter of medical causation. The only evidence that Dr. Weinstein relates claimant's 1987 surgery to his September 3, 1985 work incident is the July 7, 1988 report to claimant issued under signature of Ted Wernimont, MFW, and Dr. Weinstein. That letter states: "There is no doubt in our mind that this injury was work related and that workmens' [sic] compensation benefits are due you for a healing period..." The letter further states: "We feel that the history of your injury, the medical evidence, and the circumstances surrounding your injury leave no doubt that this injury was work related...." That letter is given lesser weight in that it appears inconsistent with Dr. Weinstein's testimony at deposition. At deposition, Dr. Weinstein took pains to avoid stating that the 1985 incident had produced the need for the 1987 surgery. Indeed, Dr. Weinstein then expressly stated that something happened in 1987 to bring about the 1987 condition. That statement appears to be consistent with the history claimant's physicians recorded in 1987. Drs. MacRandall, Shaffer and Mysnyk all reported that claimant had done well subsequent to his June 13, 1986 work release until approximately one month prior to May 14, 1987. Such would be consistent with attainment of maximum medical improvement subsequent to the 1985 injury and then redevelopment of a non-related condition either related to the underlying degenerative disease process or related to some incident in early spring 1987. It is further noted that Drs. Shaffer and Mysnyk reported claimant's pain as coming on insidiously. Webster's Ninth New Collegiate Dictionary at pages 625 and 626 notes that insidiously as applied to a disease means the disease develops so gradually as to be well established before becoming apparent. That definition and use of the adverb insidiously by Drs. Shaffer and Mysnyk again is more consistent with claimant's 1987 condition resulting from the underlying disease process and not from the 1985 work injury. The comments in the July 1988 report that refer to the condition as "work related" does not expressly relate back to the September 1985 work injury. Knowledge of the September 1985 work injury sufficient to issue an opinion as to its causal relationship to claimant's overall condition including his 1987 manifestation, also is not demonstrated. It can appropriately be surmised that the term references to work activities claimant undertook subsequent to his June 1986 work release as well as work activities on September 3, 1985. For these reasons also the weight properly to be given to the July 1988 report is minuscule. Claimant has not sustained his burden of showing that his 1987 back condition and subsequent surgery were causally connected to his September 3, 1985 work injury. In that claimant has not sustained his burden of showing a causal connection between the 1987 back condition and surgery and the September 1985 work injury, defendants are not liable for medical costs related to the 1987 back Page 6 condition and surgery. Given that absence of liability, the issue of whether defendants are required to reimburse Title XIX for amounts actually paid by Title XIX rather than actual medical expenses incurred is moot and will not be further addressed in this decision. Defendants argue that claimant has not proved that he has suffered a 40 percent industrial disability as a result of his work injury of September 3, 1985. The record belies defendants' assertion. It is true that claimant had preexisting degenerative disc disease and had a prior back surgery as of September 3, 1985. Claimant had returned to work subsequent to the 1980 back surgery and had maintained employment. There is no evidence that his earnings had been reduced on account of the 1980 surgery or his preexisting degenerative disc condition. Hence, the preexisting degenerative disc disease and the 1980 surgery had not produced any apportional loss of earnings capacity. The evidence clearly shows that claimant had a loss of earnings capacity related to his 1985 work injury, however. In April 1986, Dr. MacRandall, claimant's treating physician at that time, opined that claimant had an 18 percent body as a whole permanent partial impairment. Dr. MacRandall, on June 13, 1986, released claimant to work. The doctor released claimant with definite work restrictions, however. Claimant was not to lift more than 30 to 40 pounds; claimant was to stop periodically while driving; and claimant was not to load or unload. All of these evidence a significant loss of earnings capacity for an individual who had previously engaged in manual labor without restrictions on lifting. Indeed, these work restrictions effectively precluded claimant from most heavy manual labor. The inability to load or unload his cargo effectively precluded claimant from many trucking jobs in which he might otherwise have engaged. Further, the employer refused to rehire claimant on his work release. That also demonstrates a significant change in claimant's condition relative to earnings capacity subsequent to the 1985 injury. Claimant has clearly demonstrated a degree of industrial disability directly related to and produced immediately subsequent to his 1985 work injury which industrial disability existed as of his work release on June 13, 1986. It is industrial disability of that date which we must assess. As of that date claimant was an individual with a moderately severe body as a whole permanent partial impairment. Claimant had lifting restrictions of 30 to 40 pounds which effectively precluded his doing heavy manual labor as a trucker or otherwise. Claimant lacked a high school diploma and had no other training but for on-the-job training in positions requiring low levels of Page 7 mechanical and managerial skills. Claimant likewise, although motivated, had difficulty securing any employment subsequent to his work injury. The employment which he ultimately did secure appeared in part to be based on long-term association with that employer and not related to claimant's ability to compete favorably in the overall labor market. When all of the above is considered, it is found that claimant had sustained a loss of earnings capacity related to his September 3, 1985 work incident of 40 percent as of his June 13, 1986 work release. In that defendants have prevailed on the condition of whether claimant's 1987 condition resulted from his 1985 work injury, claimant's healing period is found to end as of his June 13, 1986 work release. That was the date claimant was released to return to work following the September 3, 1985 injury. The last issue to be resolved is whether defendants are liable for interest on medical bills related to treatment for his September 3, 1985 injury. Neither Iowa Code section 86.13 nor Iowa Code section 85.30 allow for interest on penalties for late payment of medical expenses allowed under Iowa Code section 85.27, Klein v. Furnas Elec. Co., 384 N.W.2d 370 (Iowa 1986). FINDINGS OF FACT Claimant injured his low back at work on September 3, 1985 while lifting a box of meat. Claimant had preexisting degenerative disc disease. The incident of lifting a box of meat on September 3, 1985 produced a substantial aggravation of such disease. Claimant's September 3, 1985 low back injury produced an 18 percent permanent partial impairment to claimant's body as a whole. Claimant's September 3, 1985 work injury resulted in surgery excising the L3/L4 disc on September 24, 1985. Claimant's September 3, 1985 work injury did not result in claimant's new back complaints of spring 1987 or in claimant's surgery on December 8, 1987 involving L4/L5, L3/L4 and L5-Sl discs. Claimant had surgery on October 30, 1980 at the L4-L5 level. Claimant recovered subsequent to the 1980 surgery. Claimant had returned to work without an ascertainable body as a whole impairment subsequent to that surgery and without loss of income subsequent to that surgery. No determinable or apportionable permanent impairment resulted from claimant's 1980 back condition. Claimant incurred healing period from September 13, 1985 through June 13, 1986 as a result of his September 3, Page 8 1985 work injury. Claimant had an 18 percent body as a whole permanent impairment and was restricted from lifting more than 30 to 40 pounds; from loading or unloading; and from driving without breaks subsequent to his September 3, 1985 work injury and as of June 13, 1986. Claimant's employer refused to rehire claimant as of June 13, 1986 and as a result of claimant's September 3, 1985 injury. Claimant lacks a high school diploma, has minimal work experience outside of the trucking industry and was precluded from heavy manual labor as of June 13, 1986. Claimant has a reduction in earnings capacity of 40 percent as a result of his September 3, 1985 injury and as of June 13, 1986. Claimant's employer is responsible for claimant's medical expenses including mileage and other miscellaneous expenses as a result of his September 3, 1985 injury and up to his work release of June 13, 1986. CONCLUSIONS OF LAW Claimant has established that his injury of September 3, 1985 arose out of and in the course of his employment. Claimant has established that his injury of September 3, 1985 is a cause of disability as such existed and was assessable as of June 13, 1986. Claimant has not established that his injury of September 3, 1985 is a cause of disability related to claimant's development of symptoms in spring 1987 and subsequent need for additional back surgery. Claimant is entitled to healing period benefits from September 13, 1985 through June 13, 1986. Claimant is entitled to permanent partial disability resulting from his September 3, 1985 work injury of 40 percent of the body as a whole. Claimant is entitled to payment of medical costs evidenced on joint exhibits 13 and 16 which costs were incurred from September 3, 1985 through June 13, 1986. Claimant is not entitled to payment of medical costs incurred from spring 1987 onward and related to claimant's 1987 back symptoms, their treatment and his subsequent surgery and rehabilitation. WHEREFORE, the decision of the deputy is affirmed in part and reversed in part. ORDER THEREFORE, it is ordered: Page 9 That defendants pay claimant healing period benefits at the rate of two hundred sixty and 50/l00 dollars ($260.50) from September 3, 1985 through June 13, 1986. That defendants pay claimant two hundred (200) weeks of permanent partial disability benefits at the rate of two hundred sixty and 50/l00 dollars ($260.50) commencing June 14, 1986. That defendants pay claimant's medical bills and related medical mileage and expenses as set out in joint exhibits 13 and 16 as incurred from September 3, 1985 through June 13, 1986. That defendants pay accrued weekly benefits in a lump sum. That defendants pay interest on weekly benefits awarded pursuant to section 85.30. That defendants pay costs of this action including the costs of transcription of the arbitration hearing pursuant to rule 343 IAC 4.33. That defendants file claim activity reports pursuant to rule 343 IAC 3.l(2). Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Patrick M. Carr Attorney at Law 201 East Fifth Street Spencer, Iowa 51301 Mr. Stephen W. Spencer Attorney at Law 218 6th Avenue STE 300 P O Box 9130 Des Moines, Iowa 50306 1108; 5-1803; 5-1807; 3800 Filed November 10, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LARRY G. MERCER, : : Claimant, : : vs. : : File No. 806573 VAN WYK, INC., : : A P P E A L Employer, : : D E C I S I O N and : : GREAT WEST CASUALTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 Claimant failed to prove that a surgery subsequent to the end of his healing period following an earlier surgery was causally connected to his work injury. 5-1803 Forty-five year old claimant with 18 percent functional impairment to lower back who had surgery was awarded 40 percent industrial disability. 5-1807 Employer's failure to rehire claimant following work injury taken into account in determining industrial disability. 3800 There is no statutory authority for interest or penalty on medical benefits. Interest on an out-of-state judgment against the employer for medical benefits is not a liability of the employer. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY G. MERCER Claimant, File No. 806573 vs. A R B I T R A T I O N VAN WYK, INC., D E C I S I O N Employer, F I L E D and DEC 6 1989 GREAT WEST CASUALTY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Larry Mercer against Van Wyk, Inc., employer, and Great West Casualty, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on September 3, 1985. This matter came on for a hearing before the deputy industrial commissioner in Des Moines, Iowa on September 20, 1989. The record consists of the testimony of the claimant and claimant's wife, Charlotte Mercer; joint exhibits 1 through 17. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's alleged injury on September 3, 1985 arose out of and in the course of his employment. 2. Whether claimant's alleged disability is causally connected to his injury. 3. The nature and extent of claimant's disability. 4. Claimant's entitlement to medical benefits under 85.27. REVIEW OF THE EVIDENCE Claimant testified he quit school during his eleventh grade at age 17 and has received no other formal education. Claimant described the various jobs he has had over the years before beginning employment with the defendant employer in November 1984. These prior jobs involved a pipeline job, car wash job, working in stockyard, making boxes, light mechanical work at a truck stop, driving a truck including loading and unloading, delivering house gas and anhydrous ammonia, and helping rebuild trucks. Claimant said some of these jobs lasted a few months to a few years. Claimant testified he was given a physical within 30 days of working for the defendant employer. Claimant emphasized that the defendant employer knew of claimant's prior back surgery in 1980. Claimant said he was a long haul driver with 48 state authority. Claimant stated he was responsible for unloading his truck himself or hiring someone if the haul was boxed meat. Claimant described unloading as putting the boxes on pallets at the end of his truck and the receiver would take the boxes from there. Claimant estimated these boxes weighed 60-90 lbs. Claimant acknowledged that if his haul was swinging meat he did not have to unload it. Claimant reviewed his medical history prior to his alleged September 3, 1985 injury. This history included a 1960 lung surgery and a 1970 stomach surgery from which claimant said he completely recovered, and a 1980 back surgery involving a ruptured disc. Claimant contended he was completely recovered from his 1980 surgery with no restrictions. Claimant said he was unloading 60-80 lb, 3 1/2 foot boxes of meat from his truck on September 3, 1985. Claimant stated that as he was bending over to pick up a box off the truck floor, he felt a tear and pain in his lower back. Claimant indicated the pain let up momentarily and then became worse. Claimant said he continued to unload his truck as there were only a few boxes left. Claimant stated he then notified the defendant employer of his injury. Claimant described the medical help he sought upon his return to Iowa because his pain in his back was also going down into his leg. Claimant had back surgery on or around November 18, 1985 after receiving two medical opinions. Claimant said he last worked for the defendant employer September 13, 1985. Claimant said he was released to work with restrictions on June 13, 1986. Claimant emphasized he wanted to return to work with defendant employer but the defendant employer refused. Claimant testified the defendant employer also fought claimant's application for unemployment benefits, but claimant said he received the benefits. Claimant testified he found another truck.driving job on September 6, 1986 within the doctor's restrictions and worked until December 27, 1986 when his employer sold its trucks. Claimant then found work in the Spring 1987 with another truck company. Claimant contends he was in so much pain, he had to quit this job in May 1987. Claimant said his doctor indicated he should have surgery, but claimant said he wasn't able to because his 1985 surgery bill wasn't paid. Claimant testified he went to the University of Iowa Hospital where tests and epidural steroid injection were given to the claimant. Claimant said this did not help and claimant eventually had surgery at the University of Iowa Hospital on December 8, 1987. Claimant revealed his present restrictions are to lift no more than 25 lbs repetitively, 50 lbs on a one time basis, no twisting or bending below the knee and no picking up and lifting more than the weight limits. Claimant explained he began his current job in June 1988 driving a truck long distance for Greg Jacobson at $300 per week. Claimant said he averaged $400 per week with the defendant employer. Claimant stated this job does not require loading and unloading. Claimant estimated he has driven a truck on and off over twenty years. Claimant contends he is not employable by anyone else except Mr. Jacobson. Claimant said he searched for jobs but when he tells them about his back, these other companies do not want him. Claimant admitted that the defendant employer and another trucking company had hired him before 1985 with knowledge claimant had a prior back surgery. Claimant acknowledged his 1985 symptoms were similar to his back symptoms in 1980 except the 1980 symptoms were confined more to his back whereas his 1985 symptoms also involved pain in his legs. Claimant admitted he tried bowling since 1987 without any trouble. Charlotte Mercer, claimant's wife, testified claimant fully recovered from his 1980 surgery. She said claimant played ball and did anything he wanted to without any restrictions. Mrs. Mercer said claimant wanted to go back to work and wouldn't tell the doctor of his pain. She acknowledged claimant ultimately went back to work the summer of 1986 into 1987. She explained claimant never made recovery from his 1985 injury like he did from his 1980 surgery. Mrs. Mercer said claimant got so bad he couldn't stand as a result of his 1985 injury. Mrs. Mercer said the bills include her meals because she had to drive the claimant to the hospital and doctor. She contends James Weinstein, M.D., said she had to bring the claimant to the University of Iowa Hospitals. She acknowledged that she.paid her brother for the use of his van to transport the claimant and enable him to lie down while taking him to University of Iowa Hospital. Dr. James Weinstein, associate professor of orthopedic surgery and director of spine diagnostic and treatment center at the University of Iowa College of Medicine, testified through a deposition taken September 1, 1989 that his first contact with the claimant was May 22, 1987. The doctor said the claimant told him of claimant's 1980 L4-5 disc level surgery and claimant's L3/4 left diskectomy in September 1985. Dr. Weinstein said: His physical examination at that time showed some limitation of forward flexion. He had left lateral bending reproduction of his pain. His extension was normal. Right side bending was normal. His strength in his left anterior tibialis was significantly weak at 1 out of 5, with 5 being normal. The rest of his motor exam was fairly normal. His straight leg raising test reproduced some pain at 70 degrees on the left, normal on the right, at about 75 degrees. Also consistent in the supine and sitting positions. These exams were congruent. X-rays at that time -- plain x-rays showed some narrowing of the disc space at L-4/5, some abnormal motion at 3/4. He had an outside myelogram he brought with him that showed an abnormal left 4/5 nerve root. And a large, questionable disc at 4/5 on the CT scan from the outside hospital that extended down to the L5/S-1 disc space. (Joint Exhibit 17, Page 5) Dr. Weinstein said he suggested an epidural injection to relieve symptoms and help decide etiology of claimant's pain. When the doctor saw claimant on July 15, 1987 he said claimant was: A. Pretty much the same. He was now complaining of left lateral thigh pain and weakness of his great toe. His exam showed that his anterior tip was -- on the left was 3 out of 5 compared to 1 out of 5. So it was a little bit better, but still abnormal. We thought he had a -- probably had a recurrent disc at 4/5, and recommended discography. Q. Was that done? A. Yes. Q. What were the results? A. Positive for pain at all three levels. Moderate .pain at 3/4; mild pain at 4/5 and with severe left leg pain at 4/5, -- or excuse me. Correction. Mild pain at 4/5, and severe left leg pain at 5/1. Q. What does that indicate? A. That he had disc disease.at three levels; L-3/4, L4/5 and L-5/S-1, and most significantly at 5/1. (Jt. Ex. 17, P. 7) Dr. Weinstein said he ultimately did surgery on December 8, 1987 which he described as: A. ...[A]n exploration of the 3/4 interspace and the L-4 nerve root on that level, exploration of the 4/5 disc space and the L-5 nerve root, and some decompression at that level, and a fusion of L-5/S-1. (Jt. Ex. 17, P. 9) The doctor was asked: Q. What was found during the exploration? A. Free fragment of disc at L-4/5 and scar, as well as bony hypertrophy at 4/5, and a spondylolysis at L-5/S1. Q. What's spondylolysis? A. Spondylolysis, or spondylolytic, S P 0 N D Y L 0 L Y T I C, is a break in the posterior part of his -- the spinal canal. Q. Is that a developmental-type problem where something happens in an accident or a lifting incident, or anything like that? A. Could be either/or. I don't know the etiology in his case from my memory. (Jt. Ex. 17, P. 9) Dr. Weinstein testified that on February 10, 1988, two months after claimant's surgery, claimant's leg pain was resolved while claimant had some back pain. He said claimant was eager to return to work and the doctor allowed for some healing time and also arranged for a functional assessment which was done in April 1988. Dr. Weinstein said he released the claimant to return to work on June 27, 1988 with the restrictions of 55 lbs one time lift, no more than 4 times per hour and repetitive lifting limited to 25-30 lbs. Dr. Weinstein was asked the following questions and answered as follows: Q. Okay. Doctor, based on the surgical procedure that you performed on Mr. Mercer do you have an opinion as to the degree of functional permanent impairment that he has as a result of the procedure and the condition you sought to correct? A. Yes. I think in a case like Mr. Mercer, which is not uncommon in our practice,,one has to consider the evaluation in relationship to how it got there and not just a point in time. And I think that there is a difficulty when one tries to do that, because there is no crystal ball that can tell me what was the main event from '80 to '83, to '85, to '87 when I saw him. And I -- I think that there is probably some causal relationship across time, in my opinion, to why he ended up being with us with his injuries. With the injury in '87, I think it was about a month and a half before we saw him that he started having symptoms. He was doing well from September of '85 until that time, if my memory serves me right. And for me to say that everything that happened to him before the month and a half I saw him is unrelated to that event probably is not the case. But I don't -- I can't honestly speak to before that time, because I didn't see him. And I know this is a long-winded answer, and I don't like to give long-winded answers, but I think in his case it's necessary. He was given a 25 percent rating by Dr. Found, my colleague. And I don't want to begin to speak for him, so I'll make my own assessment. And that would be that his surgery and impairment based on what I did must take into consideration what I think his spine is like now. And that has to include what's happened in the past, because that's why he's like he is now in some respect. So I think Dr. Found's recommendation of 25 percent is very realistic for Mr. Mercer. Q. What you're saying then is that the 25 percent permanency he has now is an accumulation of all the problems he has in his lumbar spine to the present? A. Oh, I don't think I'm saying that. I think when I made my -- when I make my decision about impairment based on what we treated him for, I can't negate the past. And if I give him a rating now of 25 percent, I'm considering how he was when he presented to me with the pathology and the physical findings that he presented with, realizing that there may be contributory factors from the past that are relevant to the way he is now. I don't know. (Jt. Ex. 17, PP. 15-16) Dr. Weinstein did not apportion the 25 percent as to any prior injuries. He's further asked and answered: Q. ...Do you have an opinion as to whether the events occurring in September of 1985 caused in whole or in part the condition for which he presented to you in May, 1987? A. Well, what I said before to Mr. Spencer was that I really didn't want to make that association. What I wanted to do is speak about the time I saw him and the history he told me. And I knew that he had had surgery at 3/4 and 4/5 on two different occasions, five years apart, approximately, and that maybe that, in my opinion, at the time I saw him there was some association to those events, yes. That was my opinion; that there was a relationship. Q. That there was a relationship between the events of September, 1985, and his condition? A. There was a relationship between his disease from the onset, and surgeries in '80 and '85, and the way he is now when he presents to me in '87; correct. (Jt. Ex. 17, PP. 24-25) St. Louis Medical Center records on or around October 17, 1980 reflect: Complaint: We know that he lifted and twisted his low back and that the pain that he has connected with the lumbosacral area had been affecting since he was 15-16-years old and he has bad pain on and off. The spasm always calm down and he was able to get rid of it. Noticeable this time is that we have treated him last week in the office and he went back to work the next day and fouled it up again. (Jt. Ex. 1, P. 4) St. Luke's Medical Center records on October 17, 1980 show: "Lumbar Sacral Spine: Congenital defect at the articulating facets of L4-5 with probably spondylolysis at L5. Bony structures and disc spaces otherwise appear normal." On October 19, 1980, St. Lukes Medical Center records show: "Obliques LumboSacral Spine: Spondylosis defect at L5 on the left. The lateral view does show evidence of a minimal spondylothesis of L5 over S1. (Jt. Ex. 17, PP. 17-18) On October 30, 1980 claimant had diagnoses of herniated disc L4-5 left and to a lesser degree L3-4 left. On this date he had a lumbar laminectomy L4-5. (Jt. Ex 1, P. 37) On November 18, 1980, claimant was admitted to St. Lukes's Hospital with an injury to his prior surgical site. His records on this date indicate he was discharged to the clinical dependency unit. His records indicate an alcoholic problem at this time and this reinjury occurred when he was drinking. (Jt. Ex. 2, PP. 1, 3-4) On December 31, 1984, a G. Richard Van Been, D.C., administered a preemployment examination of the claimant on behalf of the defendant employer. He wrote: Recommendation: It is my recommendation that Larry G. Mercer be hired as a truck driver. I do not find any severe problems with the previous surgeries. The spinal surgery I do question to some degree as far as the stability of his spinal column after long hauls. However, due to the fact there's been five years since the surgery and he's had no reoccurrence, I do not see any problems with it at this time. (Jt. Ex. 5, P. 1) On September 24, 1985, claimant had a left L3/4 hemilaninotomy and removal of free fragment and evacuation of L3-L4 disc space operation performed by Dan G. MacRandall, M.D. On October 15, 1985,.Dr. Van Beek wrote pursuant to claimant's alleged injury on September 3, 1985 while unloading a truck for the defendant employer: In response to your question on the cover letter, it is my opinion that the back surgery on September 24, 1985, was a continuing irritation caused by previous surgery and injury of approximately 5 years ago. Whenever an individual has surgery for a lower back condition, the resultant trauma to the area does not allow for complete recovery of the structures and tissues in that area. Therefore, surgery is often necessary in the area of five to ten years following the initial surgery. (Jt. Ex. 11, P. 2) On October 25, 1985, Dr. MacRandall wrote: Larry is a patient of mine who recently underwent a left L3-L4 hemilaninotomy and removal of free fragment and evacuation of the L3-L4 disk space. Larry injured his back by history presented to me on 9/03/85 when he was lifting a 75-100 pound box of meat and felt a marked pain in the lumbosacral area with radiation down the posterior aspect of his left thigh and into the lateral aspect of his left leg. As you know, he also had a lumbar disk removed back in 1980. This was at a level one level lower than the present area. However, I believe back in 1980, his scan did show that he did have a bulging at the L3-L4 level. Quite commonly on a historic basis, when there has been a weakness in that level, it may rupture at any time in the ensuing years. I feel that he had had a weakness dating back to 1980 and just completed the event of the rupture in the September, 1985 incident. (Jt. Ex. 8, P. 4). On October 30, 1985, R. F. Derby, D.C., wrote: Larry Mercer was in my office for treatment on September 6 and September 14, 1985. I treated him for subluxation of the 3rd and 5th Lumbar Vertebrae and the sacroiliac. He was experiencing much pain. After the second visit we determined that he must have a disc problem which could only be eleviated [sic] through surgery, therefore, I referred him out for possible surgery, which has since been accomplished. In a telephone conversation with him this week he says that he is recovering satisfactorily. (Jt. Ex. 7, P. 2) On April 18, 1986, Dr. MacRandall's records reflect: I would recommend Larry continue with his exercises. He was instructed to not be doing any lifting over 30-40#. He was instructed if he would like to he could start doing some short driving for periods of a couple of hours or so but stopping every half hour or so to get out and walk around. I do not really think he is going to be able to go back to his driving occupation as this would require a lot of heavy lifting. I really don't think that Larry will be able to do that at this point. At this point, based on the evaluation of permanent impairment, 2nd edition of the AMA, it would be 18% involvement of total person. (Jt. Ex. 8, P. 7) On June 13, 1986, his records show: "We will let Larry return to work. He should not do any lifting over 30-40#." (Jt. Ex. 8, P. 7) The University of Iowa Hospital records on May 22, 1987 reflect: Patient is a 43-year-old white male referred for evaluation of low back pain and left lower extremity pain and weakness. In 1980 he had an L4-5 discectomy with good relief of his back and left lower extremity pain. In 9-85 he had an L3-4 discectomy and a large free fragment was also excised at that time. It should be mentioned that between his first and second surgeries he had been largely asymptomatic except for the few months before his second surgery. He again had good relief after the second surgery but the past 1 1/2 months has had low back and left lateral thigh and leg pain. Back pain is 75 percent. (Jt. Ex. 11, P. 5) On December 8, 1987, the University of Iowa Hospitals records reflect operation by Dr. Weinstein: Exploration of the left 3-4 interspace with exploration of the L4 nerve root. Exploration of the left 4-5 disc space and L5 nerve root. Medial facetectomy L4-5 and decompression of the [illegible] of L5 on the left. Posterior lateral transverse process fusion L5-S1. Harvesting right iliac bone graft. (Jt. Ex. 11, P. 39) On April 12, 1988, Ernest M. Found, Jr., M.D., spine surgeon with the University of Iowa Department of Orthopedic Surgery and Spine and Diagnostic Center and an associate of Dr. James Weinstein, wrote to claimant: To summarize, we feel you put forth a very good effort throughout the testing. We feel that prior to returning to work as a trucker that you should be admitted to the two week Low Back Pain Rehabilitation Program. We encourage you to try to arrange to come into the April 18th program and our Rehab Coordinator, Ted Wernimont, will be working with you to arrange admission to the program. (Jt. Ex. 12, P. 6) On July 7, 1988 Dr. Weinstein and Ted Wernimont, MSW clinical coordinator of the Spine Diagnostic and Treatment Center, wrote in a report pursuant to claimant's completion of the rehabilitation program for chronic back pain: We recommend that you return to work full time on Monday June 27, 1988 with the local trucking company which has currently offered you a position as an over-the-road truck driver. We feel that you have demonstrated excellent coping skills and ability to do truck driving when using appropriate positioning and taking time to stretch and do your daily exercise program. You indicated a very strong desire to return to this job as soon as possible and we are more than happy to recommend your return on Monday following our program. We strongly recommend that the workmen's compensation issues involving your.case be settled as soon as possible. There is no doubt in our mind that this injury was work related and that workmen's compensation benefits are due you for a healing period which will continue from the date of initial injury through your surgical procedures and will end on Monday, June 27, the day you return to work. We feel that the history of your injury, the medical evidence, and the circumstances surrounding your injury leave no doubt that this injury was work related. We feel frankly that the workmen's compensation area in this situation needs to be responsible for all appropriate medical and income provisions provided by law and that this be done as quickly as possible. We feel that you have done an outstanding job of setting aside the stresses and frustrations of the workmen's compensation situation and have chosen to get well and return to work. .... The orthopaedic surgeon has determined your body as a whole impairment rating is 25 percent. This is based on the number of surgical procedures that you have had and the permanent limitations which.involve lifting, bending, stooping, and twisting. Your healing period for workmen's compensation.purposes will end on Monday, June 27, 1988. (Jt. Ex. 12, PP. 10-11) On July 22, 1988, Dr. Weinstein and Wernimont wrote: Larry returned to the Department of Orthopaedics today for his two week follow up s/p rehabilitation program. At the present time, Larry is doing extremely well, and is driving a truck full time. As indicated earlier, he had been off work for almost three years prior to rehabilitation program, and through his extremely high motivation and desire to get well, has made dramatic gains to this point. He states that last week, he logged approximately 3,000 miles over the road. (Jt. Ex. 12, P. 13) APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 3, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 3, 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815,(1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. Apportionment of disability between a preexisting condition and an injury is proper only when there was some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). The burden of showing that disability is attributable to a preexisting condition is, of course, placed upon the defendant. If evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Varied Enterprises, Inc., 353 N.W.2d 407; Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson, Workmen's Compensation Law, 59.22; 22 Am. Jur.2d, 122; 2 Damages & Tort Actions 15.34(a). If claimant has an impairment to the body as a whole an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselmann v. Carroll Health Center, 3 Iowa Industrial Commissioner Reports 209 (Appeal Decision 1982). ANALYSIS Claimant is 45 years old and quit high school during the eleventh grade. Basically claimant has been a truck driver for the majority of his adult work life. It is obvious from the records, particularly the medical records, that claimant loves the life as a truck driver. On numerous occasions the records reflect claimant's anxious desire to return to driving a truck when he recovers from his injury. Medical personnel involved in claimant's treatment comment on claimant's motivation. The evidence refers to claimant's 1980 surgery. The greater weight of medical evidence conclusively shows that there was no discernible residual permanent impairment to the claimant from this 1980 surgery that can be apportioned to claimant's alleged 1985 injury and any disability resulting from therefrom. In December 1984 Dr. Van Beek performed for the defendant employer a preemployment physical on the claimant. The doctor recommended that the defendant employer hire the claimant. He specifically mentioned that he saw nothing severe with any of claimant's prior surgeries and especially since it had been five years since his prior back surgery and there was no reoccurrence. On September 3, 1985 claimant was unloading boxed meat from defendant employer's truck when he felt a pop in his back. Claimant had a disc removed at L-3/4 on the left as a result of this injury. Claimant's 1980 surgery was at the L4-5 level. It is true, there was reference in 1980 to symptoms at L-3/4 but that was the extent of the L-3/4 involvement. It appeared claimant recovered from this September 3, 1985 injury after being off from September 13, 1985 to his maximum healing and release to return to work with some restrictions on June 13, 1986. Claimant developed symptoms again in May 1987 and probably would have had surgery again on his back soon thereafter, but his 1985 surgery bill had not been paid. Claimant sought medical services at the University of Iowa Hospitals on May 22, 1987 with Dr. James Weinstein, an Associate Professor of Orthopaedic Surgery and Director of the Spine Diagnostic and Treatment Center. After sending claimant through several tests, the doctor performed on the claimant an exploration of the left 3-4 interspace with exploration of the L4 nerve root, exploration of the left 4-5 disc space and L5 nerve, medial facetectomy L4-5 and decompression of the foramen of L5 on the left, posterior lateral transverse process fusion L5-S1, and harvesting right iliac bone graft. Claimant was healing from this May 1987 back problem and surgery beginning May 22, 1987 to June 27, 1988, when claimant was released to return to work with some restrictions. The question arises whether this is a new injury as it appears claimant was basically problem free from June 13, 1986 to May 21, 1987 or was this an anticipated result probably caused by claimant's September 3, 1985 injury to his low back. Dr. Weinstein has exceptional credentials. His first contact with the claimant was May 22, 1987, so he did not have the benefits of personal contact with claimant during his prior surgery in 1985. Taking Dr. Weinstein's testimony as a whole, the undersigned finds that this doctor opined that there was a relationship of the 1987 surgery to the 1980 and 1985 surgeries. Dr. Weinstein was extensively asked in direct and cross examination as to apportioning any impairment between 1980 and 1985 and 1987 surgeries or incidents. He was not able to apportion or attribute specifically the past surgeries and any impairment to any impairment specifically attributed to claimant's 1980 surgery. The greater weight of medical shows that a prior surgery involving a disc can later result,in additional problems to the spine especially next to the discs previously operated on. The undersigned finds that claimant's September 3, 1985 injury arose out of and in the course of claimant's employment and that this injury proximately caused a spinal condition that resulted in claimant's having additional symptoms and problems in May 1987. These added problems resulted in claimant having surgery on discs in December 1987. Claimant's other alternative in this matter could probably have been to file a new review-reopening case as to a May 1987 medical condition. The undersigned finds that action or decision should not have resulted in any different total effect unless a different rate may have later been involved. The undersigned finds that the claimant's September 3, 1985 injury which arose out of and in the course of claimant's employment resulted in the necessity of claimant having his 1985 and 1987 surgery. This conclusion therefore would make moot any alternative argument. Defendants contend claimant's preexisting 1980 low back injury at L4-5 was the cause of claimant's September 3, 1985 alleged injury and subsequent surgeries and current disability. It is undisputed claimant had a 1980 back injury involving a herniated L4-5 left disc and ultimate surgery on October 30, 1980. Claimant had approximately 5 years without any problems from his 1980 surgery. The defendant's own doctor, a chiropractor, recommended defendant employer hire claimant with knowledge of the 1980 injury. Defendant takes claimant as he is. The undersigned finds the greater weight of medical evidence shows claimant's current disability and impairment is causally connected to his September 3, 1985 injury. Dr. Ernest Found, Jr. opined a 25 percent impairment to claimant's body as a whole. Dr. Weinstein, with whom Dr. Found is associated, agreed with Dr. Found. It was determined that claimant reached maximum healing on June 27, 1988. The undersigned finds claimant has a 25 percent permanent impairment to his body as a whole as a result of the September 3, 1985 injury. No apportionment was established. The entire 25 percent impairment is attributable to the September 3, 1985 injury. Claimant has incurred two healing periods. The first period beginning September 13, 1985 to and including June 13, 1986 and the second period beginning May 22, 1987 up to and including June 26, 1988. These periods total 96.571 weeks of healing period benefits. The claimant testified he tried to return to work with defendant employer and was refused employment. The undersigned believes claimant is credible. The claimant then filed for unemployment and the defendant employer fought this. Claimant eventually won and received benefits. Defendant employer has completely disavowed itself from any responsibility to the claimant. As previously mentioned, several people have commented on claimant's motivation. Under McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980), a refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. Claimant's award of disability will be greater than it might otherwise be because of the defendant employer's actions. The defendant employer can't unload its injured worker like a box of beef from its truck. Claimant is working now as a long distance truck driver for another company. He is making approximately 25 percent less per week than he was making for defendant employer in 1985. Claimant obviously has a bad back. The medical evidence shows that when someone has surgeries like claimant has had, problems can be expected. Claimant's spine has been damaged. Claimant has a reduction in earning capacity. Claimant's only real transferable skills is his truck driving ability and a good back is essential. It is fortunate claimant has a job in his profession at the present time. The trucking industry does not normally seek or hire unless necessary, people with prior back problems such as claimants. Claimant's present employer should be congratulated. Claimant quit high school during the eleventh grade. Considering claimant's age, education, location of his injury, good motivation, length of healing periods, impairment, and all those other items to be considered in determining industrial disability, the undersigned finds claimant has a 40 percent industrial disability. Claimant's entitlement to 85.27 medical benefits is the only remaining issue. Defendants have denied benefits from the beginning. They fought claimant's entitlement to unemployment benefits. They refused to rehire claimant. Defendant employer had an opportunity to interrupt claimant's seeking his own doctors by providing their own designated doctor. Defendants took no such action including not paying any benefits. Claimant was entitled to seek medical help. Defendants are responsible for all of claimant's medical bills incurred as a result of claimant's September 3, 1985 injury and his surgery resulting therefrom and all is set out in joint exhibit 13. Defendants are also responsible to reimburse claimant for his mileage and expenses set out in joint exhibit 16. FINDINGS OF FACT 1. Claimant injured his low back at work on September 3, 1985 while lifting a box of meat. 2. Claimant's low back injury and resulting 25 percent permanent impairment to his body as a whole is a result of his September 3 work related injury. 3. Claimant's September 3, 1985 work related low back injury resulted in a September 24, 1985 surgery involving L3-4 disc and surgery on December 8, 1985 involving L4-5 left, L3-4 left, and fusion of L5-S1. 4. Claimant had surgery on October 30, 1980 involving the L4-5 disc left from which claimant recovered and from which there was no determinable or apportionable permanent impairment. 5. Claimant's preexisting low back condition involving his left L4-5 disc was materially aggravated, worsened and lighted up by claimant's September 3, 1985 work related injury. 6. Claimant incurred healing periods of September 13, 1985 to and including June 13, 1986, totaling 39 weeks and 1 day and May 22, 1987 to and including June 26, 1988 totaling 57 weeks and 3 days as a result of his September 3, 1985 work related injury. 7. Claimant has a 25 percent permanent impairment to his body as a whole as a result of his work related September 3, 1985 injury. 8. Defendant employer refused to rehire claimant because of his September 3, 1985 injury and resulting surgeries. 9. Defendant employer is responsible for claimant's medical expenses including mileage and other miscellaneous expense as a result of his September 3, 1985 injury. All set out in joint exhibits 13 and 16. 10. Claimant has a reduction in earning capacity as a result of his September 3, 1985 injury. CONCLUSIONS OF LAW Claimant's injury on September 3, 1985 arose out of and in the course of claimant's employment. Claimant's disability is causally connected to his injury on September 3, 1985. Claimant's surgeries of September 24, 1985 and December 8, 1987 are causally.,connected to claimant's work related injury on September 3, 1985. Claimant's preexisting low back condition involving his L4-5 disc was materially worsened, aggravated, and lighted up by claimant's September 3, 1985 work related injury. Claimant incurred two healing periods of September 13, 1985 to and including June 13, 1986 and May 22, 1987 to and including June 26, 1988 totaling 96.571 weeks as a result of claimant's September 3, 1985 work related injury. Claimant has a 25 percent permanent impairment to his body as a whole as a result of his work related September 3, 1985 injury. Defendant employer refused to rehire claimant because of his September 3, 1985 injury and resulting surgeries. Claimant has a 40 percent industrial disability with benefits commencing June 27, 1988 at the rate of $260.50 per week. Defendants are responsible for claimant's medical expenses set out in joint exhibit 13 and claimant's medical mileage and expenses set out in joint exhibit 16. ORDER THEREFORE, it is ordered That defendants shall pay unto claimant healing benefits at the rate of two hundred sixty and 50/100 dollars ($260.50) for the period beginning September 3, 1985 to and including June 13, 1986 and May 22, 1987 to and including June 26, 1988 totaling ninety six point five seven one weeks (96.571). That defendants shall pay unto claimant two hundred weeks (200) of permanent partial disability benefits at the rate of two hundred sixty and 50/100 dollars ($260.50) beginning June 27, 1988. That defendants shall pay the claimant's medical bills and medical mileage and expenses that set out in joint exhibits 13 and 16. That defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid, if any. That defendants shall pay interest on the benefits awarded herein that are set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to Division of industrial Services Rule 343-4.33. That defendants shall file an 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 6th day of December, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Patrick M. Carr Attorney at Law 201 E. Fifth St Spencer, Iowa 51301 Mr. Stephen W. Spencer Attorney at Law 218 6th Ave., Ste. 300 P.O. Box 9130 Des Moines, Iowa 50306 51803, 51100, 51108.50 52206, 1807 Filed December 6, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY G. MERCER, Claimant, vs. File No. 806573 VAN WYK, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and GREAT WEST CASUALTY, Insurance Carrier, Defendants. 51803 Claimant awarded 40 percent Industrial Disability. Claimant has a 25 percent permanent impairment to his body as a whole due to a low back injury. 1807 Under McSpadden, defendant employer's refusal to rehire claimant increased claimant's industrial disability. 51100, 51108.50 Claimant's disability was found to be casually connected to his injury which was found to have arose out of and in the course of claimant's employment. 52206 Claimant's injury materially aggravated a preexisting condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT A. WOODWARD, Claimant, vs. ROWLEY INTERSTATE TRANSPORTATION: File No. 806608 COMPANY, INC., A R B I T R A T I O N Employer, D E C I S I O N and KEMPER INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Robert A. Woodward against Rowley Interstate Transportation Company, Inc., his former employer, and Kemper Insurance, the employer's insurance carrier. The case was heard and fully submitted on December 17, 1987 at Dubuque, Iowa. The record in the proceeding consists of testimony from Robert A. Woodward and Patrick Sterrett, M.D. The record also contains claimant's exhibits 1 through 39 and defendants' exhibits A through L. ISSUES AND STIPULATIONS The claimant seeks compensation for healing period, permanent partial disability and payment of medical expenses under section 85.27. It was stipulated that the claimant sustained an injury on September 30, 1985 which arose out of and in the course of his employment. It was further stipulated that the claimant's rate of compensation is $363.86 per week. The issues presented for determination are whether the injury is a proximate cause of any disability with which the claimant has been afflicted; determination of the claimant's entitlement to compensation for temporary total disability, healing period and permanent partial disability; and, determination of claimant's entitlement to section 85.27 benefits, including whether or not the expenses incurred were proximately causes by the stipulated injury, whether the expenses were incurred for reasonable and necessary treatment of the stipulated injury and whether the treatment was authorized by the employer. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 2 the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Robert A. Woodward lives in Dubuque, Iowa with his spouse. According to the medical reports in the case, he is approximately 48 years of age. Prior to September 30, 1985, he had been an over-the-road trucker for Rowley Interstate Transportation for approximately five years, operating as an owner-operator. His work involved hauling meat products from FDL Foods to locations in New York, Chicago and southern states. The work required that he break down, separate, unload and restack his cargo at most of the delivery locations. This involved handling boxes which weigh as much as 80-100 pounds. Woodward testified that he could perform extended driving and handling of the cargo prior to September 30, 1985. Woodward testified that, on September 30, 1985, at approximately 12:30 a.m., he had backed his truck into the dock at a delivery location in Chicago, Illinois and that, while getting out of the truck, his hand missed the grabbar on the cab and he fell to the blacktop parking lot. Claimant testified that he landed on the left side of his back, shoulder and the back of his head when he struck the parking lot and that his knee struck the truck while he was falling. Claimant testified that he knew he was injured and sat in the truck for approximately 20 minutes until the customer was able to unload the cargo it was to receive. Claimant stated that he had pain in the front of his chest area on the left and in his shoulder that felt like a red-hot poker inside him. He estimated that he fell a distance of four and one-half to five feet, all the way front the cab door to the ground. Claimant testified that he felt he could make his deliveries and then return home. He stated that his second stop was also in Chicago where the customer unloaded. He stated that he did not feel he was improving, but had to make a delivery at Indianapolis by 8:00 a.m. Claimant stated that, when he got to Indianapolis, he could hardly get out of the truck and that the customer's employees unloaded the truck. Claimant stated that he left the truck parked at the customer's location and that he was taken by ambulance to the hospital for medical care (exhibits 24 and 25). Claimant testified that he refused to be admitted, was given shots of medication and was told to lie down. He stated that he was taken back to his truck where he slept until 8:00 or 9:00 a.m. of the following day. Claimant testified that, prior to going to Indianapolis, he had phoned the dispatcher, reported the incident and was told there was a load at Chicago for him to pick up on his return trip. Claimant stated that he did so and that, when he arrived at his home terminal, he reported he was unable to make the delivery of the load which had been picked up. Claimant was told there was no one else available to deliver the load and claimant then delivered it to Waverly, Iowa on the following day. Claimant testified that, when he returned, the employer tried to get him to take a load to Denison, Iowa, but he refused, returned to Dubuque, parked the truck and went to the company doctor, L. C. Faber, M.D. Claimant was hospitalized at Finley Hospital where he remained from October 4, 1985 until October 16, 1985. While hospitalized, he was treated with medication and therapy. He complained of pain in the front left side of his chest and left WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 3 arm and shoulder. A CT scan was performed which was negative. A bone scan of the upper left rib cage was interpreted as consistent with trauma to multiple costochondral junctions (exhibits B and 29). The discharge diagnosis was chest wall pain secondary to possible muscle avulsion at the costochondral junction on the left side. Gerald L. Meester, M.D., saw claimant during the hospitalization through a referral from Dr. Faber (exhibits 26, 27, 28 and B). Claimant.testified that Dr. Faber was planning a trip and discharged claimant from the hospital. Claimant testified that, in Dr. Faber's absence, he sought treatment from Dr. Meester, but that, when Dr. Faber returned, a dispute occurred and Dr. Meester ceased treatment (exhibit 30). Claimant stated that, after being released by Dr. Faber, he continued to treat with Dr. Meester until commencing treatment with Dr. Sterrett. Claimant could not recall Dr. Cairns saying anything about entering the hospital. Claimant testified that he continued to have the same problems, with his left hand and arm going to sleep, but that he received a communication from Kemper Insurance saying that his last workers' compensation check would be coming and that Dr. Faber told him to go back to work (exhibits D and E). Claimant relates, however, that he did not return to work and sought treatment from Patrick R. Sterrett, M.D., who had been recommended by Dr. Meester. Claimant testified that he never tried to drive a truck after that as his hand and arm continued to go to sleep if he held it in a certain position. He stated that he drives with his left hand and that,, within 25 or 30 miles, it starts to tingle and go to sleep. Claimant stated that he tried to put another driver in his truck, but that it was not profitable and that he sold the truck at a loss four to five months prior to the time of hearing. Claimant stated that Dr. Sterrett advised him he should not drive a truck. Claimant obtained a job through the carpenters' union commencing on approximately August 1, 1986. He has continued to work as a carpenter since that time whenever work has been available. Claimant testified that, while working, he has been on medication which made him feel sleepy and tired and that, by the end of the day, his arm, neck and shoulder would bother him. During the winter of 1986-87, he underwent knee surgery which had him off work for approximately four months, but which produced a good result. Claimant related that he was not employed at the time of hearing, but that he expected work to become available within a few weeks. Claimant stated that, as well as being a carpenter, he is also a millwright and a certified welder. He stated that he now works out of the Rock Island Millwright Hall and that the heaviest weights he works with range from 10-20 pounds and consist of wrenches and a small sandblaster. Claimant testified that his arm still bothers him with pain, numbness and tingling. He stated that he has improved, but is not completely recovered and remains under treatment with Dr. Sterrett. Claimant stated that he hopes his shoulder will eventually get better and that Dr. Sterrett has advised him that recovery is a slow process. Claimant then testified in detail concerning the medical expenses he seeks to recover. A summary of the medical bills WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 4 submitted is found at exhibit 4A. Claimant related that exhibit 4 is for prescriptions prescribed by Dr. Sterrett and that exhibit 5 is a traction machine prescribed by Dr. Sterrett. Claimant related that exhibit 6 is the Finley Hospital bill incurred under the direction of Dr. Faber. He stated that exhibit 7, from Dr. Mullapudi, is also treatment for the chest, neck and shoulder problem. He related that he was sent there by some other doctor. Claimant stated that exhibit 8 is for a referral made by Dr. Faber and that exhibit 9 was incurred for physical therapy directed by Dr. Sterrett. Claimant stated that exhibit 10, Dubuque Radiologists' bill, is $15.00, not $353.00. Claimant related that exhibit 11, University Hospitals, was incurred through a referral by Dr. Meester. Claimant stated that exhibit 12, Americare Home Health Resources, was for a nerve stimulating device recommended by Dr. Sterrett. Claimant related that exhibit 13, Camelot Radiology, arose from an incident when he was working at a job at a Chrysler plant in Illinois doing a lot of reaching and pulling when he had not been feeling well. Claimant stated that he got into a discussion with someone and was then hauled out of the plant and taken to the hospital. He indicated that the medical personnel apparently thought he had a heart attack, but that it was not a heart attack. Claimant testified that exhibits 14, 15, 16, 17, 18 and 19 are all connected with the same incident that occurred at the Chrysler plant in Illinois. With regard to exhibit 20, claimant related that the expense was incurred at the direction of Dr. Sterrett. He stated that exhibit 21, an ambulance bill, was incurred when he was transferred from Finley Hospital to Mercy Hospital and the return when he was initially hospitalized under the direction of Dr. Faber. Claimant related that exhibit 22 contains some charges which are not related to this action, those being the prescriptions issued by Dr. Liabo and Dr. Amram. Claimant stated that exhibit 34, the bill with St. Vincent's, may possibly have been paid. Claimant testified that exhibit 35, the Mercy Radiologists' bill, was incurred in relation to this case, but he could not recall specifics. Claimant stated that exhibit 36 was a referral from Dr. Faber. Claimant stated that exhibit 37 is from when he was places in the hospital by Dr. Hertzberger. Claimant did not know how he came to be treated by Dr. Hertzberger and stated that he was hospitalized for tests, had a reaction and was transferred to Mercy by ambulance. Claimant stated that exhibit 38 is for physical therapy prescribed by Dr. Stuart. Claimant stated that exhibit 39 is a bill for treatment of his wife which should not be part of this case. Claimant stated that, at the present time, his arm will go to sleep if he lays on it, but that he still works and does what he can. He stated that he avoids reaching overhead with the left arm. Claimant stated that no physicians have placed any specific restrictions on his activities and that recently, at times, he has worked as much as 60 hours per week. Claimant testified that his 1987 income would be over $25,000. He expected that eight months of work would be the maximum that would be available to him in his occupation as a carpenter and, if it were available, he could earn as much as $50-60,000 per year, but that availability of work varies from season to season and from year to year. Claimant stated that, if WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 5 he were able to work for eight months of the year as a carpenter, his income would compare favorably to what he earned trucking. Claimant stated that Dr. Meester arranged the examination at the University of Iowa Hospitals. Claimant stated that, before going to Iowa City, he received a letter from Kemper Insurance telling him that Iowa City was not an authorized source of treatment. Claimant could not recall if he received the letters marked as exhibits J and L. Claimant stated that he did not ask Kemper or Rowley if he could go to Dr. Hertzberger or any of the others from whom he sought treatment in 1986. Claimant testified that he could not recall having a prior problem such as numbness or tingling in his left arm, but that he might have been previously hospitalized for left arm problems with a broken collarbone. He agreed, however, that there may have been a succession of hospital visits where he complained of left arm numbness and pain as shown in exhibit A, but he stated that he would be unable to remember anything that happened as far back as 1976. Patrick Sterrett, M.D., a neurologist, testified that he treated claimant beginning in May, 1986 and has diagnosed claimant as having myofascial pain of the anterior chest and posterior shoulder muscles. He stated that it is an inflammatory condition that can result from direct trauma to the muscles. Based upon the history of the fall and lack of prior complaints in the area, Dr. Sterrett attributed the condition to the fall. Dr. Sterrett stated that claimant's symptoms were not inconsistent with symptoms of a cardiac condition. Dr. Sterrett indicated that he treated claimant with medication and physical therapy and that a TENS unit was a reasonable device for claimant's condition. Dr. Sterrett stated that Dr. Hertzberger is a neurosurgeon, but that Dr. Sterrett does not know what Dr. Hertzberger has been providing to claimant in the way of treatment. Dr. Sterrett stated that claimants prognosis is for a very slowly improving problem that can linger for years and for which time seems to be the best cure. He stated that it can worsen with activity or with use of the muscles. Dr. Sterrett stated that the negative EMG tests supported his diagnosis. Dr. Sterrett indicated that claimant had no loss of neurologic function, but that he would give claimant a rating of no more than 10% based upon myofascial pain. When asked to examine exhibit I, records from St. Anthony Medical Center, Dr. Sterrett stated that his impression would be that the treatment was for a cardiac condition. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of September 30, 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 WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 6 not be couches 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). A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 7 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation SS555(17)a. Claimants appearance and demeanor were observed as he testified. He was often argumentative and sarcastic, but such could be a result of denial of a valid claim rather than an indication of unreliable testimony. The claimant was also uncertain and contradictory in his testimony with regard to events that occurred in the past. He initially indicated that the ambulance bill was incurred while he was hospitalized by Dr. Faber, but later stated that it occurred while he was hospitalized by Dr. Hertzberger. Claimant denied having any problems with his left arm prior to this incident, yet the record is replete with evidence of left arm problems. Several other inconsistencies exist in claimants testimony. It is determined that claimant has failed to establish the full credibility of his testimony and it will be given weight accordingly. The bone scan found at exhibit 29 clearly corroborates claimant's complaints of having fallen and of having suffered injury. In view of the description of claimants fall, it would not be unusual for him to have suffered injuries other than at the site of the costochondral junction. The assessment of this case made by Dr. Sterrett is accepted as being correct in view of Dr. Sterrett's most recent familiarity with it. His opinions are consistent with the test results that appear in the record. His assessment is a reasonable approach to the claimant's continuing complaints. Accordingly, it is determined that the injuries claimant sustained when he fell on September 30, 1985 include multiple cartilage fractures of the left second through sixth costochondral junctions and also a chronic myofascitis of the left parascapula muscles, pectoral and anterior chest wall muscles (exhibits 3 and 29). Claimant seeks compensation for temporary total disability or healing period. Either type of recovery compensation ends when the person either returns to work or when the person is capable of engaging in employment substantially similar to that in which they were engaged when injured [sections 85.33 and 85.34(l)]. According to Dr. Sterrett, the claimant has still not reached maximum recovery. It appears from the evidence that the claimant will not be able to return to truck driving. That is the type of employment in which he was engages at the time of injury. Accordingly, his healing period terminates effective with his July 31, 1986 return to work as a carpenter. This assessment is corroborated by the statement of Dr. Sterrett that claimant was not capable of working on June 27, 1986 (exhibit 3). Claimant's condition is sufficiently longstanding to be considered permanent. Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941). Since claimant's injury is located in the body, the disability should be evaluated industrially under the provisions of Iowa Code section 85.34(2)(u). Many, but not all, of the claimant's symptoms are in his arm. Further, the diagnosed injuries are not located in his arm, but are rather located in the trunk of his body. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) ; Dailey v. Pooley Lumbar Co., 233 Iowa 758, 10 WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 8 N.W.2d 569 (1943). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of 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 employees 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). Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction of value of the general earning capacity of the person rather than the loss of wages or earnings in a specific occupation. Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) 100 A.L.R.3d 143; 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. It appears that claimant is now quite appropriately employed. He is working in an area where he has expertise and is able to adequately compete for jobs. Little appears in the record about claimant's prior employment history, although the fact that he held a union card during the time he was working as a truck driver indicates that he obtained the care prior to the time he became a truck driver. In view of his age, he probably worked as a carpenter, millwright and certified welder prior to the time he became a truck driver. When the claimant's 1984 and 1985 income tax returns are compared with his description of his earnings as a carpenter, it is apparent that work as a carpenter is much more financially rewarding for him than was truck driving (his trucking operation operated at a loss in both 1984 and 1985) (exhibit K). It is recognized that depreciation is a major expense responsible for producing the losses. Nevertheless, the claimant has lost access to some types of employment that were previously available to him. Accordingly, it is determined that he has a five percent permanent partial disability as a result of the September 30, 1985 injury. Section 85.27 gives the employer the obligation to provide reasonable treatment for an injury and the right to select the providers of medical treatment. Referral by an authorized physician constitutes authorization for the physician to whom the referral was made. Limoges v. Meier Auto Salvage, I Iowa Industrial Commissioner Report, 207 (1981). The employer's right to direct a change in care is limited. Dye v. Safeway Scaffolds Co., III Iowa Industrial Commissioner Report, 75 (1983); 2 Larson Workmen's Compensation Law, section 61.12(a-e). Code section 85.27 provides that, if an employee is dissatisfied with the care that the employer is providing, the employee should communicate such dissatisfaction to the employer and that, in the event alternate care cannot be agreed upon, this agency will make a determination of the dispute. The claimant in this case did not seek authorization for treatment other than from Dr. Faber. He WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 9 clearly received a directive that Dr. Faber was the only authorized source of care. When he received that directive, exhibit J, Dr. Faber had already released the claimant and had indicated to the claimant that he needed no further care. This left the claimant in a quandary. Simply stated, his only authorized source of care had told him he needed no further care. It is not unreasonable or unexpected that the claimant would seek out care on his own under those circumstances. Accordingly, the defense of lack of authorization fails. Such does not, however, make all of the charges which claimant seeks to recover the liability of the defendants since it is still necessary to show that the treatment was proximately caused by the injury and that the treatment was reasonable. Treatment which is duplicative, for example, is not the liability of the defendants. In determining the employer's liability for the medical expenses that are sought, it should be noted that any care arranged or recommended by Dr. Faber is the responsibility of the defendants since he is their expressly authorized physician. Care provided or arranged by those to whom Dr. Faber had made referrals is likewise the responsibility of the defendants. It is clear that Dr. Meester was brought into this case by Dr. Faber and accordingly the care provided by and arranged by Dr. Meester is the responsibility of the defendants. This includes the charges from the University of Iowa Hospitals and Clinics since exhibit 28 clearly shows that the claimant was referred to Dr. Meester by Dr. Faber and that Dr. Meester arranged an appointment for the claimant at the Neurology Clinic in Iowa City. Accordingly, defendants are responsible for payment of the bills represented by exhibits 6, 8, 11, 36 and 39. With regard to Dr. Sterrett, his assessment of the case has been accepted to be correct, as opposed to that of Dr. Faber, and the charges incurred with or under the direction of Dr. Sterrett are likewise the responsibility of the employer. These include exhibits 4, 5, 9, 12, 20, part of 22 and 38. The expenses incurred under the direction of Dr. Hertzberger are not shown to have been reasonable or necessary. They are not supported by medical records or reports. It is impossible to determine a basis for holding the defendants responsible for treatment by or under the direction of Dr. Hertzberger. This excludes exhibits 21, 35 and 37. The same is true with regard to the charges from Dr. Mullapudi found at exhibit 7. Defendants stipulated to pay exhibit 34, the St. Vincent's bill. With regard to exhibit 22, the charges from Hartig Drug, the defendants are responsible for all charges made under the direction of Dr. Sterrett and Dr. Meester, but not for any of the other prescriptions shown. These total $278.78. The total is therefore $8,343.95. FINDINGS OF FACT 1. On September 30, 1985, Robert F. Woodward was a resident of the state of Iowa employed by Rowley Interstate Transportation. 2. Woodward was injured on September 30, 1985 when he fell from his truck at a delivery location in Chicago, Illinois. 3. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from October 2, 1985 through July WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 10 31, 1986 when claimant returned to work. 4. Claimants credibility is not well established. 5. Claimant is approximately 48 years of age and married. 6. Claimant's trucking operation operated at a loss for income tax purposes although it likely provided him with gainful employment it accelerated depreciation is not considered. 7. Claimant's employment as a carpenter is equal or more financially rewarding than his employment as a trucker. 8. Claimant has work experience as a union carpenter, millwright and certified welder. 9. The medical expenses reflected by exhibits 4, 5, 6, 8, 9, 11, 12, 20, part of 22, 34, 36, 38 and 39 were incurred in obtaining reasonable treatment for the injury. The total charges are therefore $8,343.95. 10. The assessment of this case made by Dr. Sterrett is accepted as being correct in view of his specialty as a neurologist and in view of his recent contact with the case. 11. Claimant has a condition which is likely to continue to improve over an extended period of time, but it is of sufficient duration to be considered permanent. 12. Claimant has no neurological deficit and his only impairment is on the basis of pain. 13. The physical derangement responsible for the claimant's condition is located in the trunk of his body, even though many of the symptoms manifest themselves in his left arm. 14. When all material factors are considered, the claimant has a five percent loss of earning capacity as a result of this injury, based primarily upon his loss of ability to perform certain types of employment which he could perform prior to the injury. 15. Claimant had prior problems affecting the same parts of his body as those injured on September 30, 1985 and this injury is determined to be an aggravation of a preexisting condition. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant is entitled to receive healing period benefits running from October 2, 1985 through July 31, 1986, a period of 43 2/7 weeks. 3. Claimant is entitled to receive 25 weeks of compensation for permanent partial disability payable commencing August 1, 1986. 4. Claimants care by and under the direction of Dr. Meester, including the University of Iowa Hospitals and Clinics, was not unauthorized. WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 11 5. Where the only expressly authorized treating physician released claimant from care, the claimant was warranted to seek other care on his own and, where that care was effective, it is the responsibility of the employer and insurance carrier. 6. Defendants are responsible to the extent of $8,343.95 for claimant's medical expenses under the provisions of Iowa Code section 85.27. ORDER IT IS THEREFORE ORDERED that defendants pay claimant forty-three and two-sevenths (43 2/7) weeks of compensation for healing period at the stipulated rate of three hundred sixty-three and 86/100 dollars ($363.86) per week commencing October 2, 1985. IT IS FURTHER ORDERED that defendant, pay claimant twenty-five (25) weeks of compensation for permanent partial disability at the stipulated rate of three hundred sixty-three and 86/100 dollars ($363.86) per week payable commencing August 1, 1986. IT IS FURTHER ORDERED that defendants pay claimant eight thousand three hundred forty-three and 95/100 dollars ($8,343.95) under the provisions of section 85.27. The payment of unpaid portions of bills made be paid directly to the providers of the services. The bills which are determined to be the WOODWARD V. ROWLEY INTERSTATE TRANSPORTATION COMPANY, INC. PAGE 12 responsibility of the defendants are as follows: Mercy Health Center exh 4 $34.50 DuMed exh 5 31.06 Finley Hospital exh 6 6,122.10 Dubuque Internal Medicine, P.C. exh 8 56.00 Mercy Health Center--Physical Therapy exh 9 65.00 University of Iowa Hospitals exh 11 454.45 Americare Home Health Resources exh 12 208.56 Medical Associates Clinic, P.C. exh 20 106.00 Hartig Drug exh 22 278.78 St. Vincent Hospital exh 34 105.00 Dr. Cairns exh 36 75.00 Finley hospital--Physical Therapy exh 38 787.50 Dr. Kramer exh 39 20.00 Total $8,343.95 IT IS FURTHER ORDERED that defendants pay all past due compensation in a lump sum, after receiving full credit for amounts previously paid, and pay interest pursuant to section 85.30 of The Code. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3 Signed and filed this 20th day of September, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Daniel P. Ernst Attorney at Law Suite 10, American Tower Building 911 Locust Street Dubuque, Iowa 52001-6784 Mr. Larry L. Shepler Attorney at Law Executive Square, Suite 102 400 Main Street Davenport, Iowa 52801 1108, 1402.60, 1802 1603, 2206, 2700 Filed September 20, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT A. WOODWARD, Claimant, vs. ROWLEY INTERSTATE TRANSPORTATION File No. 806608 COMPANY, INC., A R B I T R A T I O N Employer, D E C I S I O N and KEMPER INSURANCE, Insurance Carrier, Defendants. 1108, 1402.60, 1802, 1803, 2206, 2700 Claimant, a 48-year-old truck driver, was injured in a fall from the cab of his truck. He suffered a fracture of the costochondral junction and other soft tissue injuries in his upper left chest area. Where the treating physician directed his return to work while he was still quite symptomatic, the claimant was held to be warranted in seeking other care, where that care proved effective. Defendants' authorization defense was held to fail with regard to care that was arranged by a physician to whom the expressly authorized physician had made a referral. The healing period was ended upon the claimant's return to work in a different occupation. Claimant was awarded five percent permanent partial disability where he earned more in the new occupation than he had in the previous occupation, but where the injury foreclosed his access to the occupation in which he was engaged at the time of injury. The evidence showed the claimant to have had a preexisting condition and preexisting complaints of a similar nature several years prior to the date of injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LESTER D. GOULD, Claimant, File No. 806729 vs. A R B I T R A T I O N CONTRACT SERVICES, LTD., D E C I S I O N Employer, and F I L E D LIBERTY MUTUAL INSURANCE MAY 17 1988 COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Lester D. Gould, claimant, against Contract Services, Ltd., employer, and Liberty Mutual Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained August 13, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner March 17, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant and Linda Gould, his wife; claimant's exhibits A, B and C, and defendants' exhibits 1 and 4. Defendants' objection to claimant's exhibit B is overruled and the document is admitted for its probative value. ISSUE The sole issue presented for determination is the nature and extent, if any, of claimant's permanent partial disability. FACTS PRESENTED Claimant began working for defendant employer in July 1982. He explained he first went to Omaha from Texas for approximately two weeks, then, when a position in Knoxville, Iowa, became available, he transferred there and began working as a supervisor overseeing the cleanup and maintenance of the Hormel plant and grounds. Claimant described his position as a working supervisor of six people which involved, in addition to actually helping with the maintenance work, a "great deal" of administrative work including bookkeeping, the keeping of time records, reports and doing personnel functions. Claimant sustained an injury which arose out of and in the course of his employment August 13, 1985 when he heard a "pop" in his right shoulder as he was putting a squeegee assembly on a floor scrubber. Claimant testified that he felt immediate pain but continued working that evening and the next morning, when he was still feeling pain, went to see his family doctor, B. C. Hillyer, M.D., of the Mater Clinic. Claimant continued his regular job for the next two months or so explaining that although his shoulder bothered him off and on during this period of time, he was continuing to take the pain medication prescribed by his physician and that he "lived with" the shoulder trouble. Claimant was eventually referred to Jerome Bashara, M.D., who, in October 1985, repaired a tear in claimant's rotator cuff. Claimant testified that his shoulder was not really better after the surgery and that he was not capable, because of the pain, of returning to his regular employment. Claimant did eventually lose his employment with defendant employer when the company lost its cleaning contract with the Hormel plant in March 1986. Claimant acknowledged his separation from employment was attributable to the fact there was no longer a job rather than because of his injury, absence from work, or dissatisfaction with his work performance. Claimant testified he was under Dr. Bashara's care until approximately February 1987 but maintained that his shoulder did not truly improve as it continues to bother him when he lies down, it interrupts or prohibits sleep, and it causes pain in his back when he lies on his side. Claimant described a constant aching in the shoulder area, not going beyond the shoulder blade in his back with some stiffness in the neck and numbness to the elbow in the right arm. (It should be noted that claimant had surgery on both hands for carpal tunnel syndrome approximately two weeks before the hearing. Claimant does not make any claim that this is related to his injury of August 13, 1985.) Claimant testified that he "favors" his right shoulder, moves it around to keep it rotating and that driving causes numbness in his arms both inside and out. Linda Gould testified that she has been married to claimant since 1962 and described claimant's injury as a "big physical breakdown" causing a loss of weight, a "broken spirit," a "lost ability to reason," and depression. She explained that when claimant attempted to do heavy physical work he felt pain into his neck and back. Mrs. Gould acknowledged claimant's carpal tunnel pain began when claimant was employed by another company in January through April 1987. Robert Breedlove, M.D., orthopedic surgeon, testified he first saw claimant April 8, 1986 with primary complaints of pain with use of the right upper extremity and pain at night. Dr. Breedlove found claimant to have a near normal range of motion and, believing it was too soon after surgery to render an opinion on permanent impairment, recommended two to three months of physical therapy and suggested an anti-inflammatory medication. When claimant was next seen September 11, 1986, claimant continued to complain of right shoulder pain and a lot of popping in his shoulder with use. Dr. Breedlove found: On physical examination he has abduction of 130 degrees, forward flexion of 165 degrees, internal rotation of 40 degrees, external rotation of 80 degrees, and backward elevation of 30 degrees. He is also tender over the AC joint. .... Permanent disability at this point is 9% to the right shoulder. This is based on 2% for decreased abduction, 2% for decrease forward flexion, 2% for internal rotation, 2% for external rotation, and 1% for backward elevation. I feel that the patient may benefit from a distal clavicular resection if his pain continues. (Defendants' Exhibit 1; Deposition Exhibit 2, page 6) Dr. Breedlove again examined claimant December 4, 1987 and of that examination testified: A. I examined the patient's musculature and he appeared to have normal muscle tone and thickness concerning the posterior muscles of the right shoulder as compared to the left shoulder. Range of motion examination was performed. Abduction was 160 degrees, forward flexion 140 degrees, external rotation 80 degrees, internal rotation 30 degrees and extension was 20 degrees. Q. Doctor, would it be a fair statement that his condition, based upon the examination of December 4th, 1987, had improved from that of September 11th, 1986, insofar as range of motion was concerned? A. Yes, his range of motion was improved somewhat. Q. Did you note any other problems that the claimant had which would have been attributable to the August 8th, 1985 incident other than what you've described for me here, based upon range of motion or a similar loss which would be covered under the AMA guidelines? (Dep. Ex. 2, p. 9) Dr. Breedlove concluded that claimant had a seven percent permanent partial impairment of the right dominant upper extremity which, by use of the AMA Guidelines converted to a four percent permanent partial impairment to the body as a whole. On June 20, 1986, Dr. Bashara opined: This patient was last seen on May 29, 1986. He has now reached maximum improvement. His final diagnosis is a rotator cuff tear, right shoulder, treated by surgery on October 30, 1985. This patient is being given a 20% permanent partial physical impairment of his right upper extremity which converts to a 12% permanent partial physical impairment to his body as a whole related to his rotator cuff injury. The rating was given for a mild to moderate restriction of motion and mild loss of strength and pain. The medical records of B. C. Hillyer, M.D., revealed claimant began treating for right shoulder problems in 1983 diagnosed as subacromial bursitis for which he received injections and medications. Claimant was admitted to the Knoxville Area Community Hospital with hemarthrosis and separation of the acromioclavicular joint on the right side secondary to an injury at work. Claimant's exhibit B is the industrial disability appraisal of G. Brian Paprocki, M.S., V.E., who stated: Based on the information noted above, it is my belief that the claimant has sustained an industrial disability of approximately 30%. This rating is principally based on the following factore [sic]: the claimant's inability to return to his former employment as an industrial cleaning crew supervisor; the total loss of income while seeking reemployment; and the differential between the earning potential of his last job and the alternative work he is likely to secure. (Def. Ex. B, p. 1) (This document was admitted for its probative value. It is determined, however, that it has little probative value. Mr. Paprocki has not been shown to have the qualifications to render an evaluation of industrial disability. The document fails to indicate that Mr. Paprocki has any legal training and his report clearly indicates that he is not familiar with the concepts of industrial disability within the state of Iowa. Mr. Paprocki has based his industrial disability rating of approximately 30 percent on claimant's inability to return to work as an industrial cleaning supervisor, a loss of income while seeking reemployment, and the differential between earning potential of his last job and the alternate work claimant is likely to secure. A review of this criteria establishes that none of the criteria has anything to do necessarily with claimant's injury but all have to do with the fact that claimant lost his employment. It must be remembered that claimant lost his employment with defendant employer as a result of the employer's loss of the service contract and not as a result of claimant's injury, his absence, or any dissatisfaction with his employment. Defendant employer simply no longer had any work available to claimant. Further, a loss of earnings is only one of the many factors of industrial disability under Iowa law. The report fails to establish Mr. Paprocki conducted any studies into the actual availability of jobs to the claimant or his ability to perform any of available jobs. The usefulness of this report is limited to providing a summary of claimant's medical and employment history.) 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(1). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). A shoulder injury, not scheduled being, is an injury to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). ANALYSIS Although the parties have not stipulated claimant's work injury is the cause of permanent disability, the medical experts who testified or presented evidence agree that claimant's injury of August 13, 1985 has resulted in a permanent impairment. The essential issue for determination is the nature and extent of claimant's permanent disability. Initially, it is determined that based upon the situs of the injury as well as claimant's own testimony of subjective symptoms beyond the upper extremity, claimant has sustained an injury to his shoulder which constitutes under Alm, supra, an injury to the body as a whole. See also Nazarenus v. Oscar Mayer & Company, II Iowa Industrial Commissioner Reports 281 (Appeal Decision 1982), and Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986). There are two impairment ratings in the record., Dr. Breedlove, who evaluated and was the last physician to see claimant for his work-related injury, opined claimant sustained a seven percent permanent partial impairment of the upper right extremity or four percent impairment to the body as a whole based upon the range of motion. Dr. Bashara, who surgically treated claimant for his injury, found claimant to have a 20 percent permanent partial impairment of the upper right extremity or 12 percent impairment to the body as a whole based on a "mild to moderate restriction of motion and mild loss of strength and pain." Dr. Bashara, however, fails to present any specific data on what constitutes "mild to moderate" or "mild loss" and fails to indicate exactly on what he is basing his opinion. None of Dr. Bashara's other medical records have been submitted into evidence and consequently, it is difficult, at best, to determine the accuracy of his opinion. Therefore, the opinion of Dr. Bashara is given less weight than the opinion of Dr. Breedlove who expressly states the basis for his rating. Functional disability 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. The degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant was 51 years old at the time of hearing and is a high school graduate with one year of junior college training in business administration. Claimant has work experience as a cook, baker, and working with dairy products. For approximately 19 1/2 years claimant worked in the sanitation department of Rodeo Meats in Arkansas City, Kansas, cleaning the packinghouse and equipment. Claimant was earning $450 per week with defendant employer at the time of his injury, and at the time of hearing was employed as a janitor working 39 1/2 hours per week at $4.00 per hour. It must be noted, however, that claimant's loss of his employment with defendant employer cannot be directly attributed to his injury since it was the employer's loss of its service contract with the Hormel plant that led to claimant's unemployed status. In addition to his laborer/janitorial duties with defendant employer, claimant performed supervisory and administrative duties including bookkeeping, personnel functions, and the keeping of time records and reports. However, it is acknowledged that the majority of claimant's work experience was not in supervision or management but rather was as a laborer doing the day-to-day work of a janitor. Claimant's medical records show that prior to his injury of August 13, 1985, he was diagnosed as having bursitis in his right shoulder which was severe enough to have sought medical attention and to have received pain medication. However, it does not appear from the records that this condition interfered with his ability to perform his job. Neither Dr. Bashara nor Dr. Breedlove, however, appear to place any restrictions on claimant's employability. Claimant exhibited marked sincerity during his testimony concerning his desire to be exact over events of the past and his need as well as his desire to be employed. Claimant's capacity to learn has clearly been hampered as a result of his injury. Considering then all of the elements of industrial disability, it is found that claimant has sustained a permanent partial disability of 15 percent for industrial purposes as a result of his injury on August 13, 1985. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant, at the time of hearing, was 51 years old and a high school graduate with one year training in business administration at junior college. 2. Claimant has work experience as a cook, baker, working with dairy products, and a janitor, doing manual labor, supervising, and a combination of both. 3. Claimant sustained an injury which arose out of and in the course of his employment on August 13, 1985 to his right smoulder resulting in surgery to repair a torn rotator cuff. 4. Claimant sustained a permanent partial impairment as a result of the work injury. 5. Claimant has a permanent partial disability to the body as a whole as a result of the work injury of August 13, 1985. 6. Claimant, who was earning $450 per week at the time of the injury, lost its employment with defendant employer when the employer lost his service contract with the Hormel plant where claimant was employed as a working supervisor of six people cleaning and maintaining the plant and grounds. 7. Claimant is currently employed as a janitor earning $4.00 per hour. 8. Claimant's decrease in earnings cannot all be directly attributable to his injury although claimant's capacity to earn has been hampered as a result of his work injury. 9. Claimant continues to perceive a constant aching in his shoulder extending to his arm, back and neck. 10. Claimant has a 15 percent industrial disability as a result of his work injury of August 13, 1985. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has met his burden of establishing an injury to the body as a whole. 2. Claimant has established an industrial disability of 15 percent as a result of his.work injury of August 13, 1985. ORDER THEREFORE, IT IS ORDERED: That defendants are to pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of two hundred seventy-nine and 40/100 dollars ($279.40) per week commencing April 22, 1987. That defendants shall receive full credit for all permanent partial disability benefits previously paid. That payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That a claim activity report shall be filed upon payment of this award. That costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of May, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harold Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. Walter F. Johnson Attorney at Law P.O. Box 716 111 West Second Street Ottumwa, Iowa 52501 1803.1 Filed May 17, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER LESTER D. GOULD, Claimant, File No. 806729 vs. CONTRACT SERVICES, LTD., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1803.1 Claimant's injury to his shoulder extended beyond the upper extremity and therefore found to be to the body as a whole. Claimant awarded 15% permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY R. COCHRAN, Claimant, File No. 806769 vs. A P P E A L BUCK HUMMER TRUCKING, R U L I N G Employer, F I L E D and MAR 25 1988 THE HARTFORD INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. Division of Industrial Services Rule 343-4.27 states in part: No appeal shall be separately taken under this or 4.25 (17A, 86) from an interlocutory decision, order or ruling of a deputy industrial commissioner. A decision, order or ruling is interlocutory if it does not dispose of the contested case, unless the sole issue remaining for determination is claimant's entitlement to additional compensation for unreasonable denial or delay of payment pursuant to Iowa Code section 86.13. The ruling filed March 3, 1988, which is the subject matter of this appeal, is not dispositive of the contested case and therefore interlocutory. THEREFORE, the appeal filed March 15, 1988 is hereby dismissed. Signed and filed this 25th day of March, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. John T. Nolan Attorney at Law 22 East Court Street Iowa City, Iowa 52240 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801-1550 BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY W. SIMONS, Claimant, vs. FILE NO. 806802 PRIDE SEED COMPANY, A R B I T R A T I 0 N Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Terry W. Simons, claimant, against Pride Seed Company, employer (hereinafter referred to as Pride), and Liberty Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on October 8, 1985. On December 11, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and Mark Cleveland. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report the parties have stipulated that at the time of the alleged injury an employer/employee relationship existed between Pride and claimant. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment with a claim that the injury was the result of a non-compensable horseplay; II. Whether there is a causal relationship between the work injury and the claimed disability; and, III. The extent of weekly disability benefits to which claimant is entitled. SIMONS V. PRIDE SEED COMPANY Page 2 SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence may show are evitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that at the time of the alleged work injury he was employed at Pride as a general laborer. Generally, this involved the bagging of seed corn and beans but claimant testified that he would also help set up a "wheel" for bagging, check bins, sweep the floor and stack bags after they were filled and sewed. There was no dispute in the evidence that claimant worked under the supervision of Mark Cleveland and a leadman, Dave Holst. Generally, claimant's crew consisted of four persons, claimant, Gary Peterson, Kevin Bauer and Dave Holst who were all involved in the bagging operation. Claimant testified that a lot of horseplay was conducted on the part of all of the members of his crew during various breaks at Pride during the bagging process with the knowledge of Holst and Cleveland. Claimant said that he observed Cleveland participate in tieing one person up with tape and on another occasion Cleveland hid a bicycle from another employee by tieing it to the ceiling. Cleveland, in his testimony, admitted to the bicycle incident but denied tieing any one up. Claimant further testified that prior to the alleged work injury date such horseplay included shooting objects such as paper clips with a rubber band either at boxes in the area or at birds in the plant. Claimant said there was no attempt to hide any of this activity from their superiors. On the day of the alleged work injury, claimant testified that at the first morning break the horseplay began again with Bauer, Peterson and claimant shooting small wires at walls in full view of the leadmen who made no attempt to end such activity. They then began to shoot at a nearby box. Claimant said that then Bauer and Peterson went to another area and starting shooting the wires at claimant when he was adjusting the wheel. Claimant said that he told them to stop. When they failed to end this activity, claimant stated that he then shot a couple of wires at them. When Bauer and Peterson returned fire, claimant said that he again told them to quit because he "didn't want to get hit." Claimant then retreated to the second floor via the one man elevator to get away from this activity and to pound on the treatment barrel located on the second floor with a rubber mallet to jar corn loose from the sides of the barrel. Claimant stated that such pounding on the treatment barrel was a part of his usual duties at Pride although he only occasionally performed such activity. He denied that such work was primarily the responsibility of Bauer. This barrel is located in a small room with contains an opening for persons using the elevator and a door on the other side of the room which opens to the second SIMONS V. PRIDE SEED COMPANY Page 3 floor. A person leaving this small room through the door is in full view of persons standing on the first floor adjacent to the stairway. Claimant said that after beating on the barrel three or four times, he opened the door to leave the barrel room and he saw Bauer and Peterson standing immediately below on the first floor but he could not tell if they were shooting at him. Then something hit him in the eye and he fell backwards and experienced a burning sensation in the right eye. Claimant said that he could not tell at that time what had hit him. Claimant stated that it could have been a wire shot by either Bauer or Peterson or a kernel of corn falling from bins located above his head on third floor. There was a number of kernels of corn on the floor at the time. Claimant then reported the injury to Cleveland and testified that he told Cleveland that he either got dust in his eye from pounding on the treating barrel or from splashing "cat can", a seed corn additive, in his eye. Claimant explains that he lied to Cleveland because he did not want to get anyone into trouble. Cleveland responded that claimant must have done more than splash a chemical in his eye after examining the eye and he had another employee transport claimant to the hospital. Claimant told physicians at the hospital upon admission the same story that he told Cleveland. Claimant testified that the next day he told Cleveland the truth and that Cleveland said he would put down on the company record that a belt broke and slapped into claimant's eye. Claimant stated then that Cleveland talked to Bauer and Peterson who both denied shooting at claimant. Also there is no dispute that Cleveland directed Holst after this incident to sweep the floor around the treating barrel room to look for the wire but Holst found no such wire or any other object that may have been shot at claimant. According to claimant's medical records, a few days after the incident claimant changed his story to his eye physicians and stated at that time that a wire bounced off a wall and struck him in the eye. Also, according to the medical records, claimant was not very cooperative with his physicians. He first refused to take a blood count test. Claimant explained at hearing that he was scared of any procedure involving the taking of blood. Also, according to the records, claimant did not take his medication as directed and left the hospital early against physicians' advice. Claimant denied leaving the hospital without his doctor's permission. After extensive treatment of claimant's eye injury, physicians made a final diagnosis of corneal laceration, hyphema, traumatic cataract and chamber angle recession caused by "blunt trauma." Claimant's treating physicians opined that claimant currently suffers from 83 percent loss of vision in the right eye and within one to five years claimant will have to undergo a complete removal of the lens in the right eye which will increase his disability. Claimant is also susceptible to future glaucoma. The parties submitted a deposition from Kevin Bauer. Absent from the record is any testimony from Peterson or Holst. Bauer contradicted much of claimant's story. Bauer denied that they had shot wires before that day and that claimant was the first person to cut up wires for shooting. This aspect was denied by claimant. Bauer admitted to the fact that claimant, Peterson and himself were shooting wires at each other but denied that SIMONS V. PRIDE SEED COMPANY Page 4 claimant ever told them to stop. According to Bauer, Holst had left the area while they were doing this activity. Bauer stated that after about five minutes of this activity claimant went to the barrel room on the second floor. Bauer denied that he heard any hammering inside the barrel room. Bauer testified that it was his sole responsibility to do such hammering and not the duty of claimant. He stated that he had just performed such hammering activity shortly before the wire shooting activity. Bauer testified that after a brief period of time, claimant peered out from behind the doorway looking through the crack on the hinged side of the door and began to open the door very slowly. Bauer said that he and Peterson ran away as they assumed claimant was going to shoot at them from behind the door. According to Bauer shortly thereafter claimant came down from the barrel room and began rubbing his eye and stating that his eye "burns." Bauer stated that he learned later that claimant had injured his eye. Bauer believes that claimant struck himself in the eye while attempting to shoot at Peterson and himself. Cleveland, now a branch manager for Northrup King, a successor corporation to Pride, testified that claimant initially did not tell him what had happened and he filled out an accident report stating that the cause of the injury was unknown. After an investigation, he eventually learned of the shooting of the incident from Bauer and Peterson. He stated that Holst did not have the ability to fire and hire. He stated that both Bauer and Peterson denied to him shooting anything at claimant on the second floor. Cleveland also testified that Holst was the person responsible for keeping the treatment barrel working. He denied any prior knowledge of any horseplay. He stated that the crew is to be sweeping the floor or performing other duties between the bagging operations. Cleveland admitted suggesting possible causes of claimant's eye injury such as belt breaking or corn falling when claimant initially stated to him that he did not know what had caused the injury. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. Claimant cited at the hearing a Michigan case, Crilly v. Ballou, 91 N.W.2d 493 (Mich 1958). Justice Smith's eloquent and profound decision in that case nullifying the horseplay defense in Michigan workers' compensation cases certainly is convincing as to what should be the law within this state. Unfortunately for claimant, the law set forth in Crilly is not the law of Iowa. As a presiding officer in an administrative hearing, this deputy commissioner is helpless to change long established precedents of the courts and of the industrial commissioner in this state SIMONS V. PRIDE SEED COMPANY Page 5 dealing with horseplay. The rule of law in Iowa is stated in Lawyer & Higgs, Iowa Workers' Compensation -- Law and Practice, section 6-8, page 48 as follows: "When an employee of his own violation initiates horseplay or practical joking and actively takes part, any injury received will not be compensable because it did not arise out of and in the course of employment." In the case sub judice, few facts are clear. It can be concluded from the evidence that claimant's eye injury probably was the result of a wire shot from a rubber band striking the eye as a result of a horseplay incident. It is also apparent that such horseplay was without any sort of malice or willful intent. The theory that claimant's eye was struck by a kernel of corn from above appears impausible from the testimony of the witnesses. However, nothing can be concluded as to how and by whom the wire was shot. It is possible claimant struck himself and it is equally possible that claimant was struck by a wire. Claimant admits participation but claims he later retreated. Frankly, it is impossible for this deputy to conclude who is telling the truth in this case. One would think that Bauer's testimony would be the most credible as he no longer works for Pride and has the least to gain from lying. On the other hand, an admission of fault by Bauer may subject him to liability for claimant's eye injury. The conflicting stories of claimant did not aid in establishing his credibility. Although one can appreciate a desire to protect fellow employees, one would think that such a concern would end when it comes to providing proper information to one's physician in case of a serious eye injury. Also, claimant's testimony at the hearing as to the fact that he now does not know what happened is different from the last story he told his physicians. According to the medical reports he last reported to his physicians was that a wire had ricocheted off a wall and struck his eye. Claimant's attempt to resurrect his case by imputing knowledge or consent to the employer fails due to the hopelessly conflicting evidence as to the prior acts of horseplay involving shooting objects with rubber bands before the work injury. In a case where the trier of fact is unable to determine when a party is telling the truth, claimant must lose as claimant has the burden of proof and persuasion. The horseplay defense is not an affirmative defense in which defendants assume the burden of proof. Claimant must establish a lack of participation in horseplay activity as a part of his burden that the injury arose out of and in the course of his employment. Therefore, claimant has not established a compensable work injury in this case and cannot be awarded benefits. FINDINGS OF FACT 1. Claimant's right eye was injured on October 8, 1985 as a result of horseplay activity involving the shooting of pieces of wire with rubber bands. Such horseplay was not the result of maliciousness or willful intent to injure claimant. The final diagnosis of the injury was corneal laceration, hyphema, traumatic cataract and chamber angle recession of the right eye caused by blunt trauma. SIMONS V. PRIDE SEED COMPANY Page 6 2. It could not be found who initiated the horseplay or whether claimant was an active participant in the horseplay at the precise time claimant's eye was injured. It could not be found that claimant and others had engaged in such horseplay in view of their superiors prior to the time of the injury. It could not be found from the evidence and claimant's demeanor whether claimant was telling the truth or whether Bauer, a fellow employee, was telling the truth about the incident. it could not be found that claimant suffered an injury to his right eye which arose out of and in the course of his employment at Pride. CONCLUSIONS OF LAW Claimant has failed to establish by a preponderance of the evidence entitlement to disability benefits. ORDER 1. Claimant's petition is dismissed. 2. Claimant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 26th day of January, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. R. Douglas Wells Attorney at Law 617 Brady Street Davenport, Iowa 52803 Mr. Greg A. Egbers Mr. Mark A. Woolums Attorneys at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801-1550 1105 Filed January 26, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY W. SIMONS, Claimant, vs. FILE NO. 806802 PRIDE SEED COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL, Insurance Carrier, Defendants. 1105 Claimant denied benefits as a result of an inability to establish an injury arising out of and in the course of employment. It appeared that the injury was the result of horseplay and it could not be concluded who was telling the truth as to claimant's participation at the time of injury.