Page 1 before the iowa industrial commissioner ____________________________________________________________ : BARRETT DALE, : : Claimant, : : vs. : : File No. 811815 CRAMER BROTHERS BRIDGE : CONSTRUCTION, : : A P P E A L Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on December 10, 1985. The record on appeal consists of the transcript of the arbitration proceeding and joint exhibits 1 through 13. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: I. Whether the hearing officer erred in finding that Barrett Dale's description of his symptoms is accurate; II. Whether the hearing officer erred in finding that Dale is well motivated, that it is unlikely any work can be found for him within his qualifications and work restrictions, and that Dale does not have sufficient earning capacity to be self-supporting; III. Whether the hearing officer erred in finding that Barrett Dale has suffered a 75% loss of earning capacity as a result of the injury he sustained on December 10, 1985, and in finding that the injuries Barrett Dale sustained on December 10, 1985, were a proximate cause of the symptoms and disability with which he is presently afflicted. REVIEW OF THE EVIDENCE Page 2 The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appro-priate to the issues and the evidence. ANALYSIS Initially, it is noted that although defendants raised causal connection in their appeal issue 3, this issue was not addressed in the briefs of the parties. A review of the record reveals that the medical testimony is consistent in establishing that at least a portion of claimant's present impairment is causally related to his work injury. Claimant has suffered an injury to his back. Claimant has therefore suffered an injury to the body as a whole. In assessing claimant's industrial disability, claimant's permanent physical impairment is a factor. Claimant has received a rating of ten percent permanent partial impairment of the body as a whole. However, Scott B. Neff, D.O., has stated that five percent of claimant's permanent impairment is due to his work injury, and five percent is caused by claimant's preexisting degenerative disc disease. Claimant has also been given medical restrictions against bending, stooping, twisting, standing for long periods of time and sitting for long periods of time. Claimant has a lifting restriction of 5-10 pounds. Claimant is not presently released to return to his work. Contrary to claimant's appeal argument, only the five percent impairment related to claimant's work injury can be compensated. The fact that claimant was able to continue working with his prior five percent impairment and the fact that a rating of impairment was not given until symptoms of pain from the work injury appeared does not change the medical testimony of Dr. Neff that only five percent is related to the work injury. Claimant's age is also a factor in the determination of industrial disability. Claimant was approaching retirement age at the time of his injury. This factor tends to reduce claimant's industrial disability, as claimant's injury has deprived him of less earning capacity than a similar injury would cause a younger worker with more of his or her work life ahead of them. Claimant's subjective plans to retire at a certain age carry little weight, as such plans, even if announced to others prior to the injury, are always subject to change according to numerous factors, and are therefore speculative. On the other hand, claimant's age does make retraining or further education difficult. Claimant's education level limits his opportunities to jobs involving physical labor. Claimant's work experience is also limited to jobs involving physical labor and truck driving. Claimant's medical restrictions prevent him from Page 3 returning to either physical labor or truck driving. Claimant has lost earnings as a result of his work injury, and is presently living on social security. Claimant's motivation to work is also a factor. The vocational rehabilitation workers who testified both described claimant as motivated to work. Claimant's work history over several years verifies this. However, when claimant was offered light duty work by his employer after his injury, claimant declined the job. Claimant testified he did not want the position because it was part-time, and because he was not sure he could perform the duties. Claimant stated he did not know Dr. Neff had approved this position for him. Claimant's unwillingness to accept this position does reflect adversely on his motivation to work. However, it is noted that claimant was not offered a full-time light duty position, and that this position was withdrawn at some point after claimant declined it. It is also noted that claimant did not apply for any jobs. The vocational rehabilitation witnesses described job categories fitting claimant's restrictions, but did not investigate any specific jobs for claimant or conduct vocational testing. Claimant has a relatively low impairment rating, yet claimant has fairly severe restrictions. Although jobs may exist that claimant could do, such jobs would not be numerous in light of these restrictions. Contrary to the deputy's analysis, the standard is not whether claimant is able to earn enough to support himself. The relevant inquiry is claimant's loss of earning capacity. In light of claimant's age, education, prior work experience, physical impairment, loss of earnings, and all other appropriate factors for determining industrial disability, claimant is found to have an industrial disability of 75 percent. FINDINGS OF FACT 1. Claimant's description of his symptoms is accurate. 2. Claimant's medical condition is accurately described by Drs. Neff and Boulden. 3. Claimant is well motivated to be gainfully employed, but it is unlikely that any work can be found for him, for which he would be qualified and which would fit within the medical restrictions recommended by Drs. Neff and Boulden. 4. Claimant, at the time of injury, was approaching normal retirement age. 5. Claimant has suffered a 75 percent loss of his earning capacity as a result of the injury he sustained on December 10, 1985. CONCLUSIONS OF LAW Page 4 The injuries claimant sustained on December 10, 1985 were a proximate cause of the symptoms and disability with which he is presently afflicted. Claimant is entitled to receive 375 weeks of compensation representing a 75 percent permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant three hundred seventy-five (375) weeks of compensation for permanent partial disability at the stipulated rate of three hundred fourteen and 95/100 dollars ($314.95) per week payable commencing September 25, 1986 as stipulated by the parties. That defendants receive credit for all amounts of permanent partial disability previously paid and that any remaining past due, accrued amounts be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. That defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Page 5 Signed and filed this ____ day of February, 1990. ________________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Attorney at Law West Towers Office Complex 1200 35th St., Suite 500 West Des Moines, Iowa 50265 Mr. Ross H. Sidney Ms. Iris J. Post Attorneys at Law 222 Grand Ave. P.O. Box 10434 Des Moines, Iowa 50306 5-1803 Filed February 28, 1990 David E. Linquist before the iowa industrial commissioner ____________________________________________________________ : BARRETT DALE, : : Claimant, : : vs. : : File No. 811815 CRAMER BROTHERS BRIDGE : CONSTRUCTION, : : A P P E A L Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant with a back injury and five percent permanent partial physical impairment of the body as a whole, age 63, with experience limited to truck driving, an inability after his injury to return to truck driving, and severe restrictions on lifting, bending, stooping, standing or sitting, and lacking a high school education, was rated as having an industrial disability of 75 percent. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARRETT DALE, Claimant, vs File No. 811815 CRAMER BROTHERS BRIDGE CONSTRUCTION, A R B I T R A T I O N Employer, D E C I S I O N and F I L E D UNITED STATES FIDELITY AND GUARANTY COMPANY, JAN 10 1989 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in arbitration brought by Barrett Dale against Cramer Brothers Bridge Construction, his former employer, and United States Fidelity and Guaranty Company, the employer's insurance carrier. The case was heard and fully submitted on March 25, 1988 at Des Moines, Iowa. The record in the proceeding consists of testimony from Barrett Dale, Mary Dale and Elizabeth Barstad. The record also contains jointly offered exhibits 1 through 13. ISSUES The issue presented by the parties for determination is the degree of permanent disability, if any, that was proximately caused by the injury claimant sustained on December 10, 1985. It was stipulated that all entitlement to compensation for healing period had been paid and that any compensation for permanent partial disability was due commencing September 25, 1986. It was stipulated that the rate of compensation is $314.95 per week. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Barrett Dale is a 63-year-old, married man who quit school during the twelfth grade. He attended no other formal education and has not obtained a GED. Dale grew up on a farm and performed farmwork including care of livestock and crop production. Dale served in the Merchant Marines for four years where he worked as a waiter and cook. Upon his return from the Merchant Marines, Dale reentered farming for five or six years, but left after having two bad years. Dale then obtained factory work at a General Motors plant in Kansas City, but was laid off after three or four years. Dale returned to Decatur County, Iowa and obtained a job driving a truck transporting corn from bins to railroad cars. The work involved scooping corn into an auger. Dale then obtained a job at an elevator in Leon, Iowa which he held from 1956 until 1965. He hauled corn, fertilizer and feed. The work involved scooping and also carrying 50-pound bags of fertilizer. Dale performed some maintenance work on the elevators and trucks of the elevator business. When the business declined, Dale left and briefly obtained a job with the local school district where he was lunchroom manager and drove a school bus. He left that job in 1967 because of low pay. Dale entered the construction industry in 1967 as part of a road building crew. He drove a CAT and scraper. He also performed maintenance on vehicles. In 1970, he obtained a job performing maintenance work on forklifts, air compressors, elevators and a crane. In 1971, he obtained a job with the Ruan Company where he maintained trucks and trailers. In 1973, Dale began work for Cramer Brothers. His work duties included driving a truck and performing mechanical work upon the employer's trucks, cranes and CATs. The truck driving function also included loading of heavy equipment, lumber, pumps, timbers and other materials used in the business. On one occasion, Dale left the employ of Cramer Brothers for approximately one year to manage an apartment house in Indianola where he lives. He also returned to work at Ruan Company. He was asked to return to Cramer Brothers and did so. Barrett Dale testified that he enjoyed his work with Cramer Brothers and that he was in good standing with the employer. He stated that he had never been fired from any job except the apartment manager job when he refused to serve alcoholic beverages at a party. Dale stated that he has never been unemployed except for approximately one week when he went to obtain work at Kansas City. He has been laid off on three occasions during the winters when he was employed by Cramer Brothers. Dale stated that the layoffs were the only times when he obtained a vacation. Dale testified that he was guaranteed 50 hours of work per week with Cramer Brothers and generally worked 50-70 hours per week. Dale testified that he had generally been in good health throughout his life and was still in generally good health except for his low back and some hearing loss. His back trouble started in approximately 1973 when unhooking a trailer from a tractor. In 1979, he was attempting to lift a bundle of lumber and again injured his back. He was off work three months. While off in 1979, he also had hernia repair surgery. Dale had worked continuously between the 1973 and 1979 injuries. He again worked continuously between the 1979 and 1985 injuries. He related that he had occasional discomfort in his back, but that it had not prevented him from doing his job. Dale's third significant back injury occurred on December 10, 1985. He was attempting to lift a spool of cable that had frozen down to the ground. While jerking and prying on it, he injured his back. When the condition did not resolve after approximately three days of rest, he sought treatment from Ben F. Gaumer, D.O., a general practitioner in Indianola, Iowa. Dale stated that he had pain in his lower back that ran down his right leg. He stated that the treatment from Dr. Gaumer did not resolve his complaints and that he was then sent to Sinesio Misol, M.D. Dr. Misol released him to return to work on January 10, 1986. Claimant stated that he did his job, but was not able to do it well. He stated that his right leg would get numb and that, when he drove the truck, he had to use his left leg with the brakes, clutch and accelerator. He was then taken off work again. Claimant was contacted by Marla Torgerson, a rehabilitation specialist with Intracorp. He was sent to Scott Neff, D.O., an orthopaedic surgeon. Dr. Neff released him to return to work in early March. Claimant stated that, when he first returned, he had help with his job, but that as time passed, the business got busy and he was on his own. At times he worked 12-15 hours per day. On July 1, 1986, he was taken off work again by Dr. Neff. Dale testified that his physicians have not actually recommended surgery and that he is reluctant to have surgery unless it is necessary. Dale stated that he walks quite a bit to keep his weight down and to maintain his ability to walk. He stated that, at times, he loses control of his leg and falls. Dale stated that his condition seems to be getting worse. He stated that he would be unable to sit through a movie and that driving is a particular problem. Dale testified that, prior to 1985, he was quite active and did remodeling on his home, including building on a room for a beauty shop to be operated by his wife. He stated that he is unable to do anything like that now and that his wife does all the yard work. Dale stated that he has been contacted by rehabilitation counselors, but that they have not tested him or retrained him. Dale testified that he decided to retire during the summer of 1987. He stated that he was unable to work and that, by retiring, he could obtain his retirement money. Dale stated that he has not received workers' compensation benefits since May, 1987. Dale stated that he and his wife now live on his Social Security disability of $750 per month and that the retirement benefit was a lump sum of $19,000. Dale stated that he declined a light-duty job with Cramer Brothers that was offered. He stated that he understood the job would be sweeping floors and sorting bolts. It was his understanding that the job would be only part-time and that he would work only whenever requested. He also questioned whether he would be able to perform the job. Dale stated that he has continuous pain which impairs his mental abilities. Dale stated that, prior to the injury, he had considered retiring at age 65 and then performing part-time work helping on farms or helping carpenters in the area. Dale stated that he takes aspirin and Advil daily and takes prescription pain medication approximately once each week. Dale stated that he has not looked for a job since 1985. He was not aware that Dr. Neff had approved the part-time, light-duty job with Cramer Brothers. Mary Dale, claimant's wife, stated that there has been a considerable change in claimant's activities since 1985. She stated that, prior to the injury, he was a workaholic and did everything, including taking care of the yard. She stated that his work was his only hobby, that he liked it and that he never tried to avoid work. Elizabeth Barstad, a qualified vocational consultant, testified that she has evaluated claimant's case. She felt that, within the restrictions of 5-10 pounds on lifting and the other activity restrictions imposed by Dr. Neff, there are jobs which claimant could do including benchwork, mailroom work, cashier and hotel/motel management. She had not investigated to see if any of those jobs were available, but from her experience, she indicated that they are available. Barstad also indicated that claimant could return to school, but that his academic aptitudes have not been tested. Barstad agreed that it would take some work to place claimant into a job. She was uncertain with regard to whether or not he could be placed. Barstad stated that the part-time, light-duty job with Cramer Brothers was a unique job opportunity. Jo Ellen Parrott, a vocational consultant with Intracorp, testified by way of deposition, exhibit 13, that she had been involved in management of Dale's rehabilitation file. Parrott also believed that claimant could find work within Dr. Neff's restrictions, but had no particular job with any particular employer to recommend (page 23). Parrott indicated that light jobs within claimant's medical restrictions are most commonly seen when an employer modifies a job in order to make accommodations for one of its injured employees (page 32). She felt that claimant could work as a parking lot attendant. She was uncertain with regard to whether or not she could place him in employment (page 39). Dale has been seen and evaluated by a number of physicians. The primary recent physician in charge of his care is orthopaedic surgeon Scott Neff, D.O. Dr. Neff has diagnosed claimant as having degenerative disc disease with spinal stenosis at multiple levels (exhibit 1, page 2; exhibit 8, page 386). Dr. Neff has recommended that claimant's restrictions include lifting in the range of 5-10 pounds, avoidance of repetitive bending, stooping and lifting with his back, and avoidance of prolonged sitting and prolonged standing. Dr. Neff felt that claimant would not be able to return to his prior occupation of a truck driver (exhibit 1, pages 15 and 16; exhibit 8, pages 398 and 399) Dr. Neff has rated claimant as having a ten percent permanent partial disability. He characterized the rating as conservative (exhibit 1, page 9; exhibit 8, page 398). Dr. Neff indicated that, of the ten percent rating, five percent was due to the degenerative disc disease, but he also indicated that degenerative changes shown by x-ray are not generally rated as a permanent impairment unless they are symptomatic (exhibit 8, pages 402 and 403). Dr. Neff indicated that the restrictions he has placed upon claimant are due to his most recent injury, rather than the degenerative disc disease (exhibit 1, page 1). William Boulden, M.D., another orthopaedic surgeon, indicated that he is in agreement with Dr. Neff's assessment of claimant's case (exhibit 1, pages 2-5). APPLICABLE LAW AND ANALYSIS The appearance and demeanor of Barrett Dale and Mary Dale was observed as they appeared and testified at the hearing. Their testimonies regarding Barrett Dale's symptoms and limitations are accepted as being correct. The assessments of claimant's medical condition as provided by Drs. Neff and Boulden are likewise accepted as being correct. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Barrett Dale was 63 years of age at the time of hearing and is now 64 years of age. He has a limited education. The restrictions that have been imposed by Drs. Neff and Boulden are such that he is unable to perform jobs that require bending, twisting, stooping, lifting of more than ten pounds, driving, prolonged sitting or prolonged standing. The testimony from the vocational consultants that, in their opinion, such jobs are available was not convincing. Neither could identify a place where any job that would be consistent with Dale's restrictions was available. Dale has no demonstrated aptitude for retraining or other academic pursuits. At his age, substantial retraining is not a viable option. Dale has not sought employment, yet neither Barstad nor Parrott could assure Dale that they could place him even if a full attempt to obtain employment were made. The only job that was found was a part-time job with the current employer. Dale asserts that he is totally disabled. His failure to search for work, however, prohibits the odd-lot doctrine and shifting of the burden of proof. Emshoff v. Petroleum Transportation Services, file number 753723, (Appeal Decision March 31, 1987). There are few individuals in our society whose earning capacity is zero. There are numerous examples of individuals with severe physical impairments who are able to produce some level of earning. The real test of total disability, from a workers' compensation standpoint, is whether or not the person has the ability to earn a living for himself. There is no evidence in this case that Barrett Dale, even if he had accepted the part-time employment with Cramer Brothers, would have earned sufficient amounts to support himself. It is probable that he does not have sufficient residual earning capacity to support himself. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diederich v. Tri-City Railway, 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). Claimant has retired. Dr. Neff has indicated that claimant can function in a retirement mode with minimal symptoms (exhibit 8, page 392). The fact that a worker is of normal retirement age can limit the amount of industrial disability which is caused by an injury. Brecke v. Turner-Bush, Inc., 34th Biennial Report, 34 (Appeal Decision 1979), Hainey v. Protein Blenders, Inc., file number 708955, (Appeal Decision October 18, 1985); Cruz v. Chevrolet Grey Iron, Division of General Motors, 247 N.W.2d 764, 775 (Mich. 1976). Barrett Dale was 61 years of age at the time of injury. The evidence indicates that he intended to retire from Cramer Brothers at approximately age 65 and to then perform other part-time work. The injury has required him to retire earlier than age 65. It has eliminated the possibility of part-time work after retirement. When all the material factors of industrial disability are considered, it is determined that Barrett Dale sustained a 75% permanent partial disability as a result of the injuries he sustained on December 10, 1985. FINDINGS OF FACT 1. Barrett Dale's description of his symptoms is accurate. 2. Dale's medical condition is accurately described by Drs. Neff and Boulden. 3. Dale is well motivated to be gainfully employed, but it is unlikely that any work can be found for him, for which he would be qualified and which would fit within the medical restrictions recommended by Drs. Neff and Boulden. 4. Barrett Dale, at the time of injury, was approaching normal retirement age. 5. Barrett Dale does not have sufficient earning capacity to be self-supporting. 6. Barrett Dale has suffered a 75% loss of his earning capacity as a result of the injury he sustained on December 10, 1985. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injuries Barrett Dale sustained on December 10, 1985 were a proximate cause of the symptoms and disability with which he is presently afflicted. 3. Barrett Dale is entitled to receive 375 weeks of compensation representing a 75% permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). ORDER IT IS THEREFORE ORDERED that defendants pay claimant three hundred seventy-five (375) weeks of compensation for permanent partial disability at the stipulated rate of three hundred fourteen and 95/100 dollars ($314.95) per week payable commencing September 25, 1986 as stipulated by the parties. IT IS FURTHER ORDERED that defendants receive credit for all amounts of permanent partial disability previously paid and that any remaining past due, accrued amounts be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. 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 343-3.1. Signed and filed this 10th day of January, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Mr. Ross H. Sidney Ms. Iris J. Post Attorneys at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1402.40, 1803, 1804, 4100 Filed January 10, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARRETT DALE, Claimant, vs. File No. 811815 CRAMER BROTHERS BRIDGE CONSTRUCTION, A R B I T R A T I O N Employer, D E C I S I O N and UNITED STATES FIDELITY AND GUARANTY COMPANY, Insurance Carrier, Defendants. 1402.40, 1803, 1804, 4100 Claimant, who was 61 years of age at the time of injury and 63 at time of hearing, was awarded 75% permanent partial disability as a result of a back injury. He had a limited education and restrictions which would likely remove him from any and all types of gainful employment. The only job found was a part-time, light-duty job with the employer. His proximity to normal retirement age, however, resulted in a 75% permanent partial disability award rather than permanent total disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CARL EDWARD NATHANIEL, Claimant, vs. File No. 811933 GEORGE A. HORMEL & CO., A R B I T R A T I O N Employer, D E C I S I O N and F I L E D LIBERTY MUTUAL, JUL 14 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER SECOND INJURY FUND OF IOWA, Defendants. INTRODUCTION This is an arbitration proceeding brought by Carl Edward Nathaniel, claimant, against the Second Injury Fund. This case was heard by the undersigned on December 21, 1988, in Ottumwa, Iowa. The record consists of joint exhibits 1-8 and exhibit 9. The record also consists of the testimony of claimant and the testimony of Archie L. Buxton. ISSUES As a result of the prehearing report and order submitted and approved on December 21, 1988, the issues presented by the parties are: 1. Whether claimant sustained injuries on October 31, 1987 and December 3, 1985; 2. Whether the two alleged injuries are a cause of permanent disability; and, 3. Whether the Second Injury Fund is liable for any benefits. STIPULATIONS Prior to the hearing, the parties have entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; and, 2. In the event of an award of weekly benefits, the rate of weekly pay is stipulated to be $265.34 per week. FACTS PRESENTED Claimant, at the time of the hearing, was 38-years-old. He is married with one child. Claimant moved to Ottumwa from Toledo, Ohio in 1984. For approximately six months, claimant remodeled homes for HUD. On September 17, 1984, claimant was hired by Hormel. After a period of time, claimant was required to engage in repetitive type activities where he was using a whizzer knife. Claimant testified he developed problems. He stated Jack W. Brindley, M.D., performed surgery for a "trigger finger" problem on claimant's left ring finger. The surgery occurred on June 25, 1985. Claimant stated the surgery rectified the situation. Claimant also testified he experienced pain in his left hand and arm. Claimant was again examined by Dr. Brindley in 1986. Claimant also testified he experienced problems with his left foot once he was required by his employer to wear rubber boots. Claimant reported he was again referred to Dr. Brindley. Dr. Brindley, an orthopedic surgeon, testified by way of deposition. He stated a nerve conduction study was done on the left arm. The study indicated there was a mild compression of the ulnar nerve at the elbow. Dr. Brindley determined there was a five percent functional impairment of the left arm at that time. Dr. Brindley testified he had no reason to change that rating since then, but that a nerve conduction test only revealed a borderline problem. The third of three nerve conduction studies indicated a normal conduction. No surgery was ever performed on claimant's left arm. Dr. Brindley indicated under cross-examination that the reasons he assessed a 5 percent impairment rating were due to the positive nerve conduction test and to the claimant's subjective complaints. Dr. Brindley also testified he saw claimant for a problem with the left foot. Dr. Brindley stated that he referred claimant to a podiatrist, Russell Dan Luke, D.P.M., who performed surgery on the foot for Morton's neuroma. Dr. Brindley opined that subsequent to the surgery, claimant suffered from reflex sympathetic dystrophy. Dr. Brindley described reflex sympathetic dystrophy as: People, when they have an injury to their hands or their foot or their knee, sometimes can get a funny phenomenon where the sympathetic nervous system reacts in a different manner. And they'll get swelling and pain and stiffness and so forth. And I thought he had that after his surgery. And then he has continued to complain of some foot pain, too, that he had some trouble with his foot. (Exhibit 3, page 14, lines 17-24) Dr. Brindley could not state with any certainty whether claimant's expressed pain would ever subside. Dr. Luke testified by deposition. He indicated he treated claimant for Morton's neuroma of the left foot and that surgery was performed on February 25, 1986. Dr. Luke stated standing on hard surfaces was a contributing factor to the occurrence of Morton's neuroma. He also opined the wearing of rubber boots, as required of claimant at work, could cause claimant's pain. Subsequent to the surgery, Dr. Luke testified claimant complained of severe pain in his left foot. In June of 1986, Dr. Luke indicated he x-rayed claimant's foot. He opined claimant suffered from osteoporosis as claimant had lost some of the density in his foot. Dr. Luke testified he also believed claimant could be experiencing a stub neuroma. Dr. Luke indicated claimant's complaints of constant pain were very unusual in cases where surgery for Morton's neuroma had been performed. Dr. Luke also opined the usual recovery period was from three to eight weeks. After the recovery period, Dr. Luke stated a patient could stand on hard surfaces. Dr. Luke stated he did not place any limitations on claimant's activities. David J. Boarini, M.D., testified by way of deposition. He stated he was certified by the American Board of Neurological Surgery and by the National Board of Medical Examiners. He stated he saw claimant on two occasions. The first time was in October of 1986 and the second time was in July of 1988. Dr. Boarini testified he found claimant to have a normal neurological examination. Dr. Boarini opined claimant did not suffer from reflex sympathetic dystrophy. While Dr. Boarini did not find any neurological problems, he did opine claimant suffered from bursitis in his shoulder. However, Dr. Boarini could not find any functional impairment to the arm and shoulder. Neither could Dr. Boarini find any neurological problem with claimant's foot. At best, Dr. Boarini opined claimant was experiencing a mild case of epicondylitis to the left elbow. Dr. Boarini stated he had no explanation for claimant's complaints of pain. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). In the instant case, the focus is whether the second injury fund is applicable. Iowa Code section 85.64 provides, in part: If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the "Second Injury Fund" created by this division the remainder of such compensation as would be payable for the degree of permanent disability involved after first deducting from such remainder the compensable value of the previously lost member or organ. Under Iowa Code sections 85.63 through 85.69, three requirements must be met in order to establish fund liability: First, claimant must have previously lost or lost the use of a hand, an arm, a foot, a leg or an eye; second, through another compensable injury, claimant must sustain another loss or loss of use of another member; and third, permanent disability must exist as to both injuries. If the second injury is limited to a scheduled member, then the employer's liability is limited to the schedule and the fund is responsible for the excess industrial disability over the combined scheduled losses of the first and second injuries. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983), and Fulton v. Jimmy Dean Meat Company, file number 755039, Nos. 87-1567/87-1518 (Affirmed by the Iowa Supreme Court on February 22, 1989.) Claimant has failed to establish that the Second Injury Fund is liable for benefits to him. Claimant has not met the test requirements set out in sections 85.63 through 85.69. Specifically, claimant has failed to prove there was an initial injury where he had lost the use of his hand, his arm, his foot, his leg or his eye. Claimant, by his own admission, stated his "trigger finger" surgery was successful and there were no resulting complications. Claimant has alleged a problem with his left arm and shoulder. However, there is little evidence to indicate there was a loss of use of the arm, or that a permanent disability exists. There is a dispute among the experts concerning the mild compression of the ulnar nerve. Dr. Boarini is board certified in neurological surgery. Yet, he found no abnormalities in the two neurological examinations which he performed. Dr. Brindley, on the other hand, is not board certified in neurological surgery. He is an orthopedic surgeon. Dr. Brindley found the second of three neurological examinations established there was a borderline indication of a mild compression of the ulnar nerve. Dr. Brindley also determined claimant had a 5 percent functional impairment to the left arm. This rating was based upon the second neurological exam coupled with claimant's subjective complaints. Great weight is accorded to the opinion of Dr. Boarini who is a specialist in this area. He is rendering an opinion in his field of expertise. See: Hemm v. Van Buren Community School District (Arbitration Decision File No. 636036). From a neurological perspective, Dr. Boarini found no functional impairment to the left arm. It is the determination of the undersigned that claimant has no permanent functional impairment to his left arm. Since claimant has not established that he sustained a permanent functional impairment to the first alleged injury, claimant has failed to meet the tests set out in sections 85.63 through 85.69. As a consequence, claimant has not established any entitlement to benefits from the Second Injury Fund. FINDINGS OF FACT WHEREFORE, based on the evidence presented, the following findings of fact are made: 1. Claimant has no permanent functional impairment to the left arm or left ring finger. 2. Claimant has no loss of use of the left arm. CONCLUSION OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusion of law is made: A. The Second Injury Fund is not liable for any benefits. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 14th day of July, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. H. Edwin Detlie Attorney at Law 114 N. Market St. Ottumwa, Iowa 52501 Mr. Robert D. Wilson Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 Mr. Walter F. Johnson Attorney at Law 111 W. Second St. P. 0. Box 716 Ottumwa, Iowa 52501 5-3200 Filed July 14, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER CARL EDWARD NATHANIEL, Claimant, vs. GEORGE A. HORMEL & CO., File No. 811933 Employer, A R B I T R A T I 0 N and D E C I S I 0 N LIBERTY MUTUAL, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 5-3200 Claimant failed to establish any entitlement to benefits from the Second Injury Fund. Claimant was unable to prove any permanency because of the alleged first injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH K. MCGUIRE, Claimant, VS. File No. 811944 PAGE COUNTY, IOWA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and FREMONT INDEMNITY COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration and for medical benefits brought by the claimant, Ralph K. McGuire, against his employer, Page County, and its insurance carrier, Fremont Indemnity Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained December 2, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner at Council Bluffs, Iowa on December 2, 1987. A first report of injury was filed on December 18, 1985. The parties stipulated that claimant has received 28 6/7 weeks of temporary total disability benefits and 35 weeks of permanent partial disability benefits, all of which were paid at the rate of $176.73. The record in this case consists of the testimony of claimant, of Alfred J. Marchisio, Jr., and of Virginia Stumbo as well as of claimant's exhibits 1 through 4 and defendants' exhibits A, B, and C. ISSUES Pursuant to the prehearing report, the parties stipulated that claimant did receive an injury which arose out of and in the course of his employment on the alleged injury date. The issue to be decided is payment for alternate care. The parties were in disagreement as to whether that issue included only the issue of payment for past care provided or whether it included a subsequent issue and application for future alternate care. REVIEW OF THE EVIDENCE Claimant, Ralph K. McGuire, testified that he has gone through the tenth grade in school, but is unable to read. Claimant was employed as a custodian for Page County when injured on December 2, 1985. He subsequently received treatment from John L. Greene, M.D., and James Eaves, M.D. Claimant was McGUIRE V. PAGE COUNTY, IOWA Page 2 released for work on July 28, 1986. He reported that he could then "lift a little bit." Claimant apparently worked from August 4, 1986 until he was terminated on September 17, 1986. Claimant characterized his termination as having been caused because he could not do the work and because he had taken too much time off. Claimant contacted Virginia Stumbo, workers' compensation supervisor with Underwriters Adjusting Company, in December, 1986. She told him to continue treating with Dr. Eaves. Claimant reported that, as of that time, he could not sit, stand or walk comfortably. Claimant testified that Dr. Eaves told him he should receive another doctor's opinion. Claimant saw James Conroy, M.D., and Maurice P. Margules, M.D., in December, 1986. Apparently, claimant initially saw Dr. Conroy who then referred him to Dr. Margules. Claimant also retained counsel that month. Claimant reported that Dr. Margules performed a series of tests and then advised claimant that he had a damaged disc for which he needed surgery. Claimant had surgery on January 2, 1987. Claimant agreed he had not notified anyone with Page County before that surgery, but stated that, to the best of his knowledge, he had notified his counsel before his hospitalization. Claimant agreed he had not personally notified defendants and stated he did not believe anyone had notified them of his election to have the second surgery. Claimant stated that his counsel was aware of claimant's appointment with Dr. Conroy. Claimant stated, however, that he himself did not even know he was going into the hospital until after he got there. Surgery was scheduled for three days following the appointment with Dr. Margules. Claimant notified his counsel of the surgery after the surgery had been completed. Claimant characterized the surgery by Dr. Margules as having helped his condition and stated that he was 50% better than he had been prior to that surgery. He stated that he could now walk, bend and stoop to some degree. Claimant was visibly uncomfortable at hearing and stood and moved about on occasion while testifying. Claimant reported that he is now working four hours per day delivering parts for an auto supply house. He characterized that job as not requiring reading or writing and as requiring driving only within a 20-mile radius. Claimant opined that he could not work more than four hours per day. Claimant reported that he has had tingling in his left leg and hand for approximately the last three or four months and has had tingling in his right hand for approximately three weeks. He reported that his back pain is at the belt line and radiates into the buttocks over the width of the whole back. Alfred J. Marchisio, Jr., a vocational rehabilitation counselor and consultant, characterized claimant as having low literacy skills. Virginia Stumbo testified that she had been a claims examiner for the insurance carrier's adjusting company when claimant's claim opened. She understood that Dr. Eaves had treated claimant initially and had referred claimant to Dr. Greene who had performed a microdiscectomy in March, 1986. She McGUIRE V. PAGE COUNTY, IOWA Page 3 testified that the insurer had paid claimant's medical costs until termination of his employment for all medical costs submitted and had paid claimant for all time off work on account of the injury. She reported that the insurer had paid claimant 35 weeks of permanent partial disability benefits upon receipt of Dr. Greene's permanent partial impairment rating of seven percent. Ms. Stumbo reported that claimant's counsel contacted her on December 22, 1986 and that she then authorized an independent medical examination with Dr. Margules, but confirmed that Dr. Greene remained claimant's treating physician. She indicated that exhibit A, a letter of January 22, 1987 to claimant's counsel, was a confirmation of the earlier telephone conversation. She reported that exhibit B, a letter dated January 22, 1987 of claimant's counsel to the insurer, informed her of claimant's surgery with Dr. Margules of January 2, 1987. Ms. Stumbo reported that she subsequently conversed by phone with claimant's counsel and again told him that Dr. Greene was the treating physician and that care with Dr. Margules was unauthorized. January 22, 1987 correspondence between Ms. Stumbo and claimant's counsel indicates that the letter is a confirmation of a phone conversation of December 22, (1986). The letter advises that claimant is entitled to an independent medical examination (with Dr. Margules), but that Dr. Greene is the recognized treating physician. Ms. Stumbo also requested a copy of any information received from Dr. Margules. A January 22, 1987 letter of claimant's counsel to Ms. Stumbo reports that Dr. Conroy had referred claimant to Dr. Margules who performed surgery in the form of a repeat laminectomy. Ms. Stumbo agreed that she had not sent claimant for treatment with Dr. Greene after August 7, 1986. She could not recall counsel reporting that claimant could barely walk when she spoke with claimant's counsel in December, 1986. She indicated that they had not discussed surgery during that conversation. Ms. Stumbo testified that, had the insurer received medical reports advising of the need for surgery, the insurer's medical consultant would have reviewed such. She indicated that the insurer had no reason to question the accuracy of any medical reports or any tests relative to claimant. Ms. Stumbo advised that the insurer would have had no problem with the second surgery, had Dr. Greene been able to review claimant's medical reports and had Dr. Greene subsequently agreed that another surgery was necessary. Claimant has $11,115.40 in unpaid medical expenses including the following charges: Jennie Edmundson Memorial Hospital $4,743.10 December 28, 1986 through January 10, 1987 James Conroy, M.D. 211.50 December 26, 1986 through January 10, 1987 Medical Anesthesia Assoc. 550.00 December 29, 1986 through January 2, 1987 Maurice Margules, M.D. 3,690.00 December 28, 1986 through August 3, 1987 McGUIRE V. PAGE COUNTY, IOWA Page 4 Clarinda Memorial Hospital 1,085.80 March 12, 1987 through March 17, 1987 Clarinda Memorial Hospital 16.00 March 25, 1987 Jennie Edmundson Memorial Hospital 775.00 April 17, 1987 James E. Eaves, M.D. 44.00 April 21, 1987 through April 22, 1987 The March 25, 1987 charge with Clarinda Memorial Hospital was designated as "PT"; the April 17, 1987 Jennie Edmundson Hospital charge was designated as "MRI." The evidence as a whole reveals that charges submitted related to claimant's treatment with Drs. Conroy and Margules. On July 9, 1986, Dr. Eaves reported that claimant had not responded well following surgery and that he had discussed such with Dr. Greene and the head of the pain center at the University of Nebraska Medical School. He reported that, based upon the recommendations of apparently the pain center, Dr. Eaves would not recommend that claimant return to work. Dr. Eaves further recommended that claimant be evaluated at the pain center if the insurer so agreed and that he be retrained. On July 25, 1986, Dr. Greene of Neurological Surgery, Inc., reported that he had seen claimant on July 21, 1986 with complaints of low back pain and left lower extremity pain. Dr. Greene reported that, upon examination, claimant walked with a limp, but had no muscle spasm and straight leg raising tests were negative. He reported that claimant had no neurological findings, but had good motor strength with deep tendon reflexes and good sensation. An EMG of the left lower extremity was normal and a CT scan of the lumbar spine was much better than pre-operatively with x-rays of the lumbar spine showing no evidence of disc space. The doctor stated that he "would not expect the CAT scan findings to completely disappear. There is always going to be some bulging of the annulus. However, I don't think this is significant. I cannot explain (claimant's) symptoms on a discogenic basis.O On January 13, 1987, Dr. Conroy, who is board-certified in internal medicine, reported that examination of claimant showed loss of pin prick sensation over the lateral surface of his left leg in a typical dermatone distribution as well as diminished deep tendon reflexes indicative of nerve root injury on that side. The doctor reported that magnetic resonance image scan (MRI) was consistent with persistent bulging of disc material in the L5,Sl interspace and that claimant, therefore, was referred to Dr. Margules who did additional studies and who eventually performed a repeat laminectomy. The doctor further reported that claimant had some co-existent medical problems including features of a peptic ulcer and mild reactive depression secondary to the year-long distress and disability. J. Huddle, M.D., interpreted a CT scan of December 29, 1986 as revealing minimal bulging posteriorally to the left at the L5-Sl disc with such causing a mild degree of foraminal stenosis and mild stenosis on that side, but with no significant defect McGUIRE V. PAGE COUNTY, IOWA Page 5 seen against the spinal canal. Nerve roots appeared to be in normal position. An operative report of Dr. Margules of January 4, 1987 indicated that the L5-Sl disc was found to be compressing the Sl root. The disc was incised and a large amount of disc tissue including two large necrotic fragments were removed. After the disc space had been cleaned of its disc material, no evidence of disc material was found in the epidural space. The root was exposed and free of compression. In a discharge summary of January 10, 1987, Dr. Margules reported claimant's pain as strictly radicular in type and involving only the left lower extremity, described as the left gluteal region, posterior aspect of the left thigh, and left lower leg with paresthesia in the lateral aspect of the left lower leg. He reported that there was no involvement of the right lower extremity and no involvement of the upper extremities. The doctor further reported that EMG studies and nerve conduction studies of the left lower extremity were normal. Myeloradiculography did not show evidence of abnormal findings. The doctor reported that surgery was performed on the basis of claimant's history, clinical findings of Sl root involvement and CT scan studies. On September 23, 1987, Dr. Margules opined that claimant had reached maximum medical improvement and that further treatment could not be recommended. He also assigned a permanent partial Ophysical disability" rating. On November 1, 1987, Dr. Conroy reported that claimant had returned to the office reporting perhaps 50% relief of left leg symptoms, although still having some element of back pain and painful paresthesia in the left leg. Claimant's complaints were then reported as including severe headaches, especially on the right side, and left arm numbness which claimant related chronologically back to the accident. MRI scan did not reveal cervical disc herniation or bony encroachment on nerve roots. The head study did not show tumor, blood clot, or other conditions which would account for claimant's complaints. Elements of chronic sinusitis were present, but the doctor did not relate them to claimant's headaches. The doctor reported that claimant was obviously depressed and needed supportive care, counseling, and vocational rehabilitation. Examination notes indicate that claimant's severe headaches had been ongoing for three or four months and were mostly in the right occipital region, although to some degree in the right temporal region. On physical examination, claimant's neck was stiff to rotation and he could tolerate only approximately one-half of normal rotation and range of motion. Neurological examination of the upper extremities was normal with normal hand grasp and deep tendon reflexes. Claimant had some stiffness to forward flexion involving his lower back. Babinski's were down going. Dr. Margules testified by way of his deposition taken July 29, 1987. The doctor is a neurological surgeon. Dr. Margules reported that claimant's history was of a microdiscectomy performed followed by partial relief of pain for approximately 30 days and then return of pain unchanged with severe radicular pain McGUIRE V. PAGE COUNTY, IOWA Page 6 in the left lower extremity present continuously. The doctor indicated that claimant displayed a lot of problems and was unable to really extend and flex his left lower leg. He reported that claimant undressed with great difficulty, walked with great difficulty and had great difficulty in keeping his left leg extended, stating that pressure on the lower extremity caused pain in his lumbar region and left leg. Dr. Margules characterized claimant's as a difficult case in that paraclinical findings were normal as to the myelography, but abnormal as to MRI and CT scan, confirming that there was compression of the Sl root. The doctor stated that using those in conjunction with the history and clinical findings and claimant's obvious great difficulty, the doctor concluded that claimant had residual disc tissue and compression of his nerve root. He reported that two options were available: "One was to forget about it, do nothing and send him home, or surgically explore and try to decompress the root." The doctor stated that he saw no reason to think claimant would get better by himself in December, 1986 as claimant had had a course of progressive deterioration since March, 1986. Dr. Margules described claimant as somewhat despondent about his condition, stating claimant "felt that he saw no areas for him, that he was hurting, that was his main obsession, that he was hurting and something had to be done for his pain. It was very difficult to have a logical discussion with him." The doctor reported that he found a large amount of tissue McGUIRE V. PAGE COUNTY, IOWA Page 7 left in the interspace compressing the root, including two large fragments. He characterized such as normal because claimant had had a microdiscectomy before with a small disc removed during that procedure. Dr. Margules opined that claimant's July 23, 1986 CT scan probably reported essentially the same thing as his December 29, 1986 CT scan. The doctor characterized as correct the statement that Dr. Greene had gone in and was able to exercise 50% of claimant's bulge at the disc and that he, Dr. Margules, had removed as much as possible of the remaining 50%. Dr. Margules, as of the time of deposition, had seen claimant on four occasions since his surgery. He reported that claimant had improved in that he did not have continuous, relentless pain in his left leg, but had some residual pain in his lumbar region, also felt to be definitely, markedly better. The doctor reported he still has some difficulties with claimant in discussing things on a very logical basis, but that that had something to do with his level of education, with his understanding of things. The doctor reported that claimant would likely improve, but that his course of recovery would be approximately two years following the date of surgery. The doctor characterized fees for his services as fair and reasonable in keeping with services of physicians in his medical specialty in the city of Council Bluffs. At hearing, the parties had stipulated that providers of medical services would so testify and that defendants would not offer contrary evidence. Dr. Margules indicated that Dr. Eaves had admitted claimant to the Clarinda Hospital in March, 1987 when claimant "had a problem when he was using the bathroom and had an increase in his symptoms." Dr. Margules subsequently stated that, from observation of claimant over the week that he was (hospitalized) he felt claimant was a man of moderate intellectual ability and low level of education, and therefore, that was the main part of his problem. He did not think claimant had any pathological psychiatric trait. APPLICABLE LAW AND ANALYSIS Our first concern is whether claimant is entitled to payment for past care received from or at the direction of Drs. Eaves, Conroy, and Margules. Section 85.27 provides that the employer, for all compensable injuries, shall furnish reasonable surgical, medical, physical rehabilitation, nursing, and hospital services and supplies. The employer has the right to choose the care. Treatment must be offered promptly and be reasonable suited to treat the injury without undue inconvenience to the employee. If the employee is dissatisfied with the care offered, the employee is to communicate the basis of that dissatisfaction to the employer. If the employer and employee cannot agree on alternate care, application is to be made to the commissioner. In an emergency, the employee may chose the employee's care provided McGUIRE V. PAGE COUNTY, IOWA Page 8 the employer or the employer's agent cannot be reached immediately. The employer has the duty to monitor the treatment being provided. Zimmerman v. L. L. Palling Co., Inc., II Iowa Industrial Commissioner Report, 462 (App. Decn. 1982). An authorized physician's referral to another physician is routinely found to be authorized. Limoges v. Meier Auto Salvage, I Iowa Industrial Commissioner Report, 207 (1981). Where evidence in the record reveals claimantOs condition improves as a result of care provided by a physician whom the employer did not authorize, that improvement not only helps claimant, but may also mitigate the employer's ultimate liability. That mitigation, when considered with other relevant factors, may result in a finding that the nonauthorized care was reasonable and necessary treatment as contemplated by section 85.27. Rittgers v. United Parcel Service, III Iowa Industrial Commissioner Report, 210, 213 (1983). The California case of Zeeb v. Workmen's Compensation --Appeals Board, 62 California Report 753, 432 P.2d 361 (1976) discusses the philosophy behind charging the employer with responsibility for providing medical care. The opinion states at 364: It will ordinarily be in the interest of both the employer and the employee to secure adequate medical treatment so the employee may recover from his injury and return to work as soon as possible. Permitting the employer to control the medical treatment permits the employer, who has the burden to provide the medical treatment, to minimize the danger of unnecessary extravagant treatment, and in light of the employer's interest in speedy recovery, the employer's control should rarely result in a denial of necessary treatment. Both claimant and Ms. Stumbo agree that, when Ms. Stumbo spoke with claimant in December, 1986, she directed him to . return to Dr. Eaves for treatment. Dr. Eaves directed claimant to see another physician. It was at that point that claimant saw Dr. Conroy, who subsequently referred claimant to Dr. Margules. Claimant has low literacy skills and it was apparent at hearing that claimant has difficulty thinking abstractly. Under those circumstances, it was not unreasonable for claimant to assume that he could accept treatment from Drs. Conroy and Margules as Dr. Eaves, with whom he was authorized to treat, had advised him to see another doctor. Defendants do not appear to have appropriately monitored claimant's medical care beyond his work termination. Claimant's lack of sophistication is readily apparent, such that it is reasonable to surmise that it could have been gleaned even in the course of a telephone conversation. Under those circumstances, if defendants had not intended that claimant be permitted to seek other care if Dr. Eaves so advised, that should have been clearly stated to claimant in the December, 1986 telephone conversation. Nothing in this record suggests that that was so. While Ms. Stumbo testified that claimant did McGUIRE V. PAGE COUNTY, IOWA Page 9 not discuss surgery in the December, 1986 conversation, claimant apparently did discuss medical care. Defendants had a duty to clearly advise claimant regarding such and clearly state at claimant's level of understanding the care that would or would not be considered authorized care. As claimant acted reasonably in seeing Dr. Conroy upon Dr. Eaves' direction and in seeing Dr. Margules upon Dr. Conroy's direction, care and services provided by those physicians or under their direction were authorized and will be compensated. The record reviewed as a whole supports claimant's contention that all services for which he seeks compensation, including physical therapy services and his March, 1987 and April, 1987 costs at Clarinda and Jennie Edmundson Memorial Hospital, were within the purview of services Drs. Conroy and Margules provided or directed. Costs with Dr. Eaves, of course, are compensable since defendants had advised claimant that he could treat with that physician. We note that, on January 22, 1987, Ms. Stumbo advised claimant's counsel that care by Dr. Margules, beyond an independent medical exam, would not be authorized. That letter is reportedly a confirmation of Ms. StumboOs December 22, 1986 telephone conversation with claimant's counsel in which she stated she advised counsel that independent medical examination alone by Dr. Margules was authorized. We find the letter noncompelling in that a full month lapsed between the testified-to phone conversation and the letter. Primary medical treatment, that being claimant's surgery, had been provided in the meantime. Had defendants wished to advise claimant to not seek treatment on a timely basis, such a lapse likely would not have occurred. Further, claimant has improved following Dr. Margules' surgery and Drs. Margules' and Conroy's subsequent treatment. Claimant describes himself as approximately 50% better in terms of back and leg pain and medical records support such. Dr. Margules indicated that claimant's condition had deteriorated and not improved following his microdiscectomy with Dr. Greene in April, 1986. Defendants will likely receive the benefit of claimant's improved condition by way of a decrease in their ultimate liability on account of claimant's injury. Hence, for that reason also, the unauthorized treatment is found to have been reasonable and necessary treatment as contemplated,by section 85.27. We consider the issue of whether further alternate care should be authorized. Defendants argue that claimant's application for alternate care should not be addressed. The application was filed on November 5, 1987 and a supplemental application was filed on November 9, 1987. This matter was pre-heard on November 13, 1987. While notice as to the application for alternate care may have been less than under some circumstances, defendants cannot say they did not have notice of the application prior to hearing in this matter. At any rate, any such defense should have been raised at the time of the pre-hearing conference and not at time of hearing. The pre-hearing assignment order indicates that the issue is section 85.27 care and does not designate that such relates only to past care. For the above reasons, the application will be considered at this time. The law as stated McGUIRE V. PAGE COUNTY, IOWA Page 10 above is applicable. Claimant apparently seeks care for present complaints of continuing low back and left leg pain as well as complaints of headache and numbness and tingling in his left and right upper extremities and feelings of despondency and depression. Dr. Margules, on September 23, 1987, released claimant, indicating he had reached maximum medical improvement, and did not recommend further treatment. Dr. Conroy, on November 1, 1987, stated that claimant had headache and left arm numbness which claimant chronologically related to his injury. In his discharge summary of January 10, 1987, however, Dr. Margules had emphatically stated that claimant's symptoms were radicular symptoms related to the left lower extremity only and not involving either the right lower extremity or either upper extremity. Hence, Dr. Conroy's history in November, 1987 is inconsistent with that of Dr. Margules of January, 1987. Claimant himself, at hearing, testified that his left upper extremity problems had been present only for approximately three or four months and that his right upper extremity problems had been present only for approximately three or four weeks. Given the above, such problems cannot be related to claimant's work injury and treatment for such will not be authorized. As Dr. Margules has indicated that further treatment for claimant's back and left lower extremity condition is not recommended, further treatment and alternate care for such is not authorized. Claimant, of course, remains free to seek care as needed for that condition from authorized physicians, understood to be Drs. Eaves and Greene. Both Dr. Conroy and Dr. Margules have opined over extended time that claimant was despondent or depressed. Dr. Conroy related those conditions to claimant's work injury related disability. Depression is a recognized medical condition. As it has been related to claimant's compensable work injury, defendants are required to provide suitable care for such. In his application, claimant has expressed a preference for such treatment with Dr. David Winsor. Dr. Winsor is identified as a psychiatrist-internist. It is well recognized that the rapport between the patient and the physician is of particular import in producing efficacious treatment for mental disorders. Given claimant's expressed preference for treatment with Dr. Winsor, treatment with that practitioner would likely have a higher degree of success than would treatment with a physician of the employer's choice. As stated above, defendants will ultimately benefit from any amelioration of claimant's condition. For the above reasons, claimant is authorized to seek care for his depressive condition with Dr. Winsor. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant has completed tenth grade and has low literacy skills. Claimant was employed as a custodian for Page County until he received an injury arising out of and in the course of his employment on December 2, 1985. McGUIRE V. PAGE COUNTY, IOWA Page 11 Claimant subsequently received treatment with John L. Greene, M.D., and James Eaves, M.D. Claimant was released for work on July 28, 1986. Claimant worked from August 4, 1986 until terminated on September 17, 1986. The insurer's adjusting company paid claimant's medical costs to his September, 1986 termination. A representative of the insurer's adjusting company advised claimant in December, 1986 that claimant was to continue treating with Dr. Eaves. Claimant subsequently saw Dr. Eaves who told claimant that he should receive another doctor's opinion. Claimant subsequently saw James Conroy, M.D., who referred him to Maurice Margules, M.D. Dr. Margules subsequently performed a laminectomy on January 2, 1987. Dr. Greene had performed a microdiscectomy in March or April, 1986. Claimant is approximately 50% better in his low back and leg McGUIRE V. PAGE COUNTY, IOWA Page 12 pain subsequent to the laminectomy performed by Dr. Margules. The lamenictomy performed by Dr. Margules and related services of Dr. Margules and Dr. Conroy, as well as support practitioners, were reasonable and necessary care. On September 13, 1987, claimant had reached maximum medical improvement as regards his low back and left lower extremity condition. As of September 13, 1987, further treatment for the low back and left lower extremity condition was not recommended. On November 1, 1987, claimant had complaints of left upper extremity numbness and headache. As of hearing, claimant had complaints of right upper extremity numbness and tingling as well as left upper extremity numbness and tingling. Claimant's left upper extremity numbness and tingling had had its onset within three or four months of hearing; his right upper extremity numbness and tingling had had its onset within three or four weeks of hearing. Claimant's complaints of headache, numbness and tingling in his upper extremities do not relate to his work injury. Treatment with Dr. Conroy or Dr. Margules for such conditions would not be reasonable and necessary treatment for claimant's work injury. Claimant has had complaints of depression and despondency documented throughout medical reports of Drs. Conroy and Margules. Claimant's complaints of depression and despondency relate back to his work injury and his subsequent disability. Treatment for claimant's depression is reasonable and necessary treatment related to claimant's work injury. Claimant wishes treatment with Dr. David Winsor, a psychiatrist-internist. Patient-physician rapport is an important factor in treatment of mental conditions. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to payment of costs of medical treatment related to services provided by Drs. Margules and Conroy and for services provided by Dr. Eaves. Costs for which claimant is entitled to payment are as set forth in the above review of the evidence. Claimant is not entitled to further treatment with Drs. McGUIRE V. PAGE COUNTY, IOWA Page 13 Margules or Conroy for his left lower extremity, low back or upper extremity complaints or for his headache. Claimant is entitled to treatment with Dr. David Winsor for his depressive condition. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant's medical costs as set forth in the above review of tho evidence. Defendants provide claimant with treatment with Dr. David Winsor as necessary for proper resolution of claimant's depressive disorder. Defendants pay interest pursuant to Iowa Code section 85.30 as amended. Defendants pay costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 19th day of February, 1988. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Peter J. Peters Attorney at Law 233 Pearl Street P.O. Box 938 Council Bluffs, Iowa 51502 Mr. Jon K. Swanson Attorney at Law 900 Des Moines Building Des Moines, Iowa 50309 2500, 2700 Filed February 19, 1988 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH K. MCGUIRE, Claimant, VS. File No. 811944 PAGE COUNTY, IOWA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and FREMONT INDEMNITY COMPANY, Insurance Carrier, Defendants. 2500, 2700 Claimant's treatment, upon advise of authorized physician that claimant see another doctor, found compensable. Claimant permitted alternate care with psychiatrist of his choice for work injury related depressive disorder. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH MOORE, Claimant, File No. 812059 vs. A R B I T R A T I O N CLOW CORPORATION, D E C I S I O N Employer, F I L E D and MAY 05 1989 ROYAL INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Keith Moore, claimant, against Clow Corporation, employer, and Royal Insurance Company, insurance carrier, defendants for benefits as the result of an injury that occurred on September 27, 1985. A hearing was held in Des Moines, Iowa, on March 24, 1989 and the case was fully submitted at the close of the hearing. The record consists of the testimony of Keith Moore, claimant, and Tom Holmberg, industrial relations manager, and joint exhibits 1 through 17. Both attorneys submitted outstanding briefs. The deputy ordered a transcript of the hearing. STIPULATIONS The parties stipulated to employer-employee relationship; injury arising out of and in the course of employment on September 27, 1985; that claimant had been paid temporary disability benefits from November 25, 1985 to December 2, 1985, April 29, 1986 to May 4, 1986, and July 12, 1986 to March 20, 1987 and that temporary disability benefits are no longer a disputed issue in this case; that the injury was the cause of permanent disability; that the type of permanent disability is industrial disability to the body as a whole; that the commencement date for permanent partial disability benefits would be March 21, 1987; that the proper rate of compensation is $364.76 per week; that claimant's medical expenses have been or will be paid by defendants; that defendants make no claim for nonoccupational group health plan benefits paid prior to hearing; that defendants are entitled to a credit for 50 weeks of permanent partial disability benefits paid prior to hearing at the rate of $364.76 per week; that there are no bifurcated claims. ISSUES The sole issue submitted for determination is whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which claimant is entitled. SUMMARY OF THE EVIDENCE Of all the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant is 39 years old. He is a high school graduate who received average grades. He did better in manual arts such as shop, auto mechanics and drafting. English and science were more difficult subjects. Claimant had no formal education after high school and did not serve in the armed forces. His chief past employment was building windows for Rolscreen in Pella for one year. Claimant testified that the Clow Corporation makes fire hydrants and valves for water systems. He said that he started to work for employer on April 17, 1969 in the brass foundry chipping and grinding off seams and parting lines. He said that he worked in the brass foundry for 15 of his 19 years with employer. He also worked one year in the iron foundry and he worked in and out of the core room for approximately four years. Claimant related that he was a supervisor for approximately six months, but returned to production work because he could earn more money doing piecework because of the piece rate incentive (transcript, pages 10-20). Claimant told that he was injured on September 27, 1985 while pouring and shifting weights and jackets in the melt department of the brass foundry. The jackets are steel sleeve molds that weigh up to 60 pounds. The weights are placed on the mold and they weigh approximately 20 pounds. At the time of this injury claimant felt pain in his back, reported it to his supervisor and asked to see a doctor because of his prior back problems. Claimant said that he was earning $8.52 per hour, but with piecework, his earnings were close to $16.00 per hour. Claimant acknowledged that he had previously suffered low back problems in the 1975/1976 and 1978/1979 time frames. He alleged that he had not had any further trouble after 1979 until his injury which occurred on September 27, 1985. Claimant testified that he saw a number of doctors. Eventually, surgery was performed by William Boulden, M.D., an orthopaedic surgeon, on December 15, 1986 (transcript, pages 20-24). Claimant said that he was off work after the surgery for approximately two and one-half months. He said that he returned to work in March or April of 1987. He performed light duty for approximately two days. He was assigned to drive the forklift for approximately two days. The fork truck job aggravated his back and he then became a core maker. Dr. Boulden did not tell him that he could not go back to chipping and grinding, but he recommended that claimant not do it. Furthermore, there had been a cutback in the brass foundry and two people that had more seniority were ahead of him for chipping and grinding work. There was one position as a floater, but in this job you might be chipping or grinding or one day you might be doing stuff that weighs ounces and the next day you may be doing something that weighs as much 100 pounds.. The core maker job involves weights of approximately eight pounds. With the piece rate incentive, claimant said he could earn approximately $12.00 per hour as a core maker. Claimant testified that he performed the core maker job for approximately two months from late March or April of 1987 until May 7, 1987 at which time claimant went out on strike and has never returned to work for this employer. On August 15, 1988, claimant's union was decertified. After the decertification, the foundry work took a cut of approximately $5.00-$6.00 per hour on incentive pay (transcript, pages 24-32, 55-58). Claimant testified that he has applied for numerous jobs in foundries and factories since he left employer. He testified that he admitted on the application forms he had a workers' compensation claim and that he was never contacted by these employers. He said that some of the employers were not taking applications. One prospective employer.rejected him due to his surgery (transcript, pages 28-45). At the time of the hearing, claimant was employed for approximately 10-25 hours per week in the occupation of selling used cars for a ten percent commission. The most he has earned doing this job was $500.00 one month and the least that he has earned was $60.00 in one month. Claimant stated that he was continuing to make job applications at other places (transcript, pages 45-48). His employer for used cars is a dear and close friend (transcript, page 62). Claimant testified that currently his back still flares up. He still has numbness in his left leg down to his foot which has been there since 1985. His pain seems to vary with the amount of stress in his life. Claimant testified that he no longer hunts, mows the grass or works on his car (transcript, pages 49 and 50). Claimant testified that he last saw Dr. Boulden in March of 1988, approximately one year before this hearing, and that he has not seen a doctor for any treatment since that time. The left leg numbness is more prominent than the back pain. Aspirin relieves the back pain in most cases. The left leg is functional (transcript, pages 52-55). Claimant reiterated that employer was good about helping injured employees get back to work in work they could do. Employer offered him several jobs and he chose the core machine job (transcript, pages 55 and 56). Claimant acknowledged that after the decertification, some employees have returned to work for employer, but that he personally had not chosen to do so (transcript, pages 58 and 59). Claimant conceded that he told the prospective employers where he had applied for work that his last employment ended due to a labor dispute. He further stated that, if he had been asked, he would have admitted that he would return to Clow if and when the union matter was settled because he had 19 years of employment there (transcript, pages 59-61). Tom Holmberg testified that he has been the industrial relations manager for employer for 14 years. He verified that there was a work stoppage on May 7, 1987 and that the union was decertified in August of 1988. The foundry then began to operate in September of 1988. All striking employees, including claimant, were sent a written communication in which employer made an offer to them to return to their former jobs. Holmberg testified that employer has been hiring qualified employees, but that claimant had not applied for a job. Holmberg stated that employer would hire claimant if he applied for a job (transcript, pages 65-72). He said that the core maker job paid $8.82 per hour before the strike and $6.79 per hour after the strike. With the piece rate incentive, a core maker could earn approximately $12.00 per hour before the strike and approximately $7.75 per hour after the strike (transcript, pages 72-75). A brass foundry job would have declined in earnings from approximately $16.00 per hour before the strike to approximately $7.00 per hour after the strike (transcript, pages 72-76). The medical evidence shows that claimant has had a long and difficult history with his back. Claimant fell on the sidewalk and injured his right hip on September 15, 1961 (exhibit 1, page 2; exhibit 2, page 1). On January 7, 1974, he experienced pain in his lower back while lifting a mold (exhibit 1, page 2). Claimant testified that he encountered problems in the 1975/1976 time frame. Claimant had severe episodes in 1978 and 1979 which required hospitalization, myelogram, extensive treatment and some time off work (exhibit 1, pages 5-7; exhibit 2, pages 5-13; exhibit 4; exhibit 5; exhibit 6; exhibit 7). Claimant's back condition and the medical treatment for it prior to September 27, 1985 are very carefully detailed by claimant's attorney in his brief (claimant's brief, pages 3 and 4). Claimant testified that he did not have any back problems after 1979 until this injury which occurred on September 27, 1985. When claimant experienced back pain on September 27, 1985, he was treated by his family physician, Randall C. Hart, D.O., but not until November 18, 1985. The reason for the delay in treatment was not explained in the testimony. Dr. Hart diagnosed sciatica with left leg numbness (exhibit 1, page 9). Claimant returned to work on December 2, 1985 with a weight restriction of 50 pounds and a restriction of no repetitive bending at the waist (exhibit 1, page 10). On December 16, 1985, claimant saw Marc E. Hines, M.D., a neurologist. Claimant's EMG's were abnormal, but Dr. Hines said it is difficult to correlate the accident with this abnormality on EMG. Dr. Hines stated: The only way in which I can relate this to his accident is that through the stress of being ill, he has become prone to viral brachial plexopathy. (Exhibit 8, page 4) Claimant was also examined and evaluated by Thomas Summers, M.D., on January 13, 1986. Dr. Summers found no evidence of neurologic or orthopaedic defect. He suspected mild myofascial strain and saw no reason for definitive treatment or therapy (exhibit 9). Claimant first saw Dr. Boulden on February 4, 1986. Lumbar spine films showed significant disc space narrowing at L5,S1. Dr. Boulden's impression was degenerative disc disease L5,S1 probably causing some early spinal stenosis (exhibit 10, page 1). A CAT scan on April 28, 1986 verified foraminal stenosis at L5,S1 (exhibit 10, page 2). On May 15, 1986, Dr. Boulden speculated that claimant may some day need a decompression laminectomy (exhibit 10, page 3). On June 3, 1986, Dr. Boulden felt that claimant would need permanent light duty (exhibit 10, page 4). On July 11, 1986, Dr. Boulden reported that the forklift job for three days tore his back apart (exhibit 10, page 5). Dr. Boulden speculated on a decompression laminectomy again on July 24, 1986 (exhibit 10, page 6). On August 8, 1986, Dr. Boulden felt that conservative treatment and epidural steroid injections had reached maximum benefit. He proposed a decompression laminectomy and he conjectured that there was an 80% chance it would help claimant's condition (exhibit 10, page 7). Claimant saw Marvin H. Dubansky, M.D., an orthopaedic surgeon, for a second opinion on September 8, 1986. Dr. Dubansky noted that claimant was 5', 11 1/2" tall and was somewhat overweight at 239 pounds. He found very little to explain his symptoms except perhaps some disc degeneration and posturomechanical backache with a possibility of a nerve root compression, but he could not produce any objective findings of nerve root compression to the left lower extremity. Dr. Dubansky instructed claimant on how to lift, prescribed exercises, prescribed a light-weight back support and instructed claimant to elevate one foot on a footstool while working (exhibit 13, pages 1-3). On September 29, 1986, Dr. Dubansky suspected some degree of psychological overlay because claimant's symptoms did not follow a neurologic pattern. Dr. Dubansky appeared to oppose surgery (exhibit 13, page 4). On October 8, 1986, Dr. Dubansky said he could not see why claimant had so much difficulty and said he had nothing further to recommend. He capitulated that it may be that claimant has an impingement syndrome as Dr. Boulden had suggested and that he may need surgery at this time (exhibit 13, page 5). On November 20, 1986, Dr. Boulden again recommended a decompression laminectomy which is not too aggressive as claimant's best chance of getting.better (exhibit 10, page 8). Claimant underwent a decompressive neural foraminotomy of L5,S1 bilaterally with fat grafts on December 5, 1986 for severe degenerative disc disease of L5,S1 with spinal stenosis (exhibit 14, pages 3, 5, 6 and 13). On December 23, 1986, Dr. Boulden reported no further pain and just a little numbness in his right leg (exhibit 10, page 9). On January 20, 1987, claimant had no pain and was doing well (exhibit 10, page 10). On February 17, 1987, Dr. Boulden recommended a functional capacities evaluation and work hardening program (exhibit 10, page 11). Claimant began the work hardening program on February 24, 1987 (exhibit 15, page 1). Initial tests disclosed a good deal of leg weakness (exhibit 15, pages 2-5). On March 17, 1987, it was reported that claimant had done splendidly. Claimant could lift 65 pounds from floor to waist, 54 pounds from knee to chest, 55 pounds overhead, carry 52 pounds, push 39 pounds and pull 65 pounds. These weights were also to be considered restrictions according to Thomas W. Bower, licensed physical therapist, who conducted the work hardening and performed the evaluation (exhibit 15, page 8). On March 17, 1987, Dr. Boulden stated that claimant had completed the work hardening program and functional capacities evaluation and had doubled his output. Claimant told him that the maximum he has to lift at work is 70 pounds. He therefore released claimant to return to work with the proper safeguards in writing from employer (exhibit 10, page 12). Dr. Boulden noted that the forklift job for two and one-half days was too much bouncing and vibration and aggravated claimant's back (exhibit 10, page 13). On June 8, 1987, Dr. Boulden reported only occasional aches and pains in his back. He awarded a ten percent permanent impairment rating to the body as a whole due to the spinal decompression laminectomy for spinal stenosis (exhibit 10, page 14). On February 22, 1988, claimant related to Dr. Boulden that some days he feels really terrible. Dr. Boulden diagnosed that claimant had pain secondary to remaining degenerative changes of the lower spine (exhibit 10, page 16). A follow-up examination on March 29, 1988 reported only aches and pains and Dr. Boulden again assessed a ten percent permanent impairment rating (exhibit 10, page 15). Claimant's treatment and recovery was closely monitored by Eischen Rehabilitation Services from August 24, 1986 to April 23, 1987. They generally concurred with all that transpired. They commented on March 20, 1987 that claimant could lift 68 pounds and that the maximum lift in his job was 70 pounds (exhibit 12, pages 1-10). APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of September 27, 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.2nd 756 (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 (1962). As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Claimant had a degenerative back condition for at least ten years prior to this injury. Donald D. Berg, M.D., an orthopaedic surgeon, suspected a disc herniation on March 31, 1978 and ordered a myelogram (exhibit 5, page 1), but no abnormalities were detected at that time (exhibit 6, page 2). Claimant's attorney made an excellent summary of claimant's back problems prior to the work injury of September 27, 1985 (claimant's brief, pages 3 and 4). At the time of this injury, claimant was simply working and experienced pain in his back. He did not relate any particular traumatic, accidental event or happening at that time. Apparently, there were no witnesses to this incident. Claimant reported the incident to his supervisor and asked to see a doctor because of his prior back problems (transcript, pages 22 and 23). Defendants accommodated claimant's injury even though claimant did not begin active treatment for it with his personal physician until November 18, 1985, approximately two months later. Dr. Hart diagnosed sciatica and left leg numbness (exhibit 1, page 9). Dr. Hines said that claimant's abnormal EMG's did not correlate with a work injury and could only be identified with it from the stress of being ill (exhibit 8, page 4). Dr. Summers could find no evidence of neurologic defect or orthopaedic deficit (exhibit 9). Dr. Boulden diagnosed degenerative disc disease with possible early spinal stenosis from a narrowing of disc spaces at L5,S1 (exhibit 10, page 1). This was verified by CAT scan (exhibit 10, page 2). When conservative treatment and a number of epidural steroid injections failed, Dr. Boulden then recommended a decompression laminectomy as having an 80% chance of helping claimant's condition (exhibit 10, pages 3, 6 and 7). Dr. Dubansky, another orthopaedic surgeon, reviewed Dr. Boulden's CAT scan and his own x-rays and found little to explain claimant's symptoms other than disc degeneration and posturomechanical backache. Dr. Dubansky acknowledged the possibility of nerve root compression, but could produce no objective evidence of nerve root compression (exhibit 13, page 3). Since there was no true objective neurologic pattern, he suspected a degree of psychological overlay (exhibit 13, page 4). He appeared to oppose surgery (exhibit 13, page 4). Eventually, when claimant continued to have complaints of pain, Dr. Dubansky granted that claimant may have impingement as Dr. Boulden had diagnosed and that he may need surgery (exhibit 13, page 5). Claimant's surgery was for degenerative disc disease (exhibit 14, pages 3, 5, 6 and 13). After the surgery, claimant returned to work as a core maker from approximately late March of 1987 or April of 1987 until May 7, 1987 when claimant chose to go on strike with his union. According to Dr. Boulden's records and claimant's own testimony, he did well after the surgery. Claimant had no pain and only little numbness in his leg (exhibit 16, pages 9 and 10). Claimant reported aches and pains again in February and March of 1988. Dr. Boulden said that these aches and pains were secondary to remaining degenerative changes of the lumbar spine (exhibit 10, page 16). Therefore, it appears that claimant had a long-standing degenerative back condition which was aggravated when he experienced pain at work on September 27, 1985. Defendants provided claimant with excellent medical care, allowed claimant to see his own personal physician and permitted or arranged for claimant to see a neurologist and several orthopaedic specialists who are respected in their field. Claimant was provided with excellent vocational rehabilitation assistance through Eischen Rehabilitation Services (exhibit 12). Claimant acknowledged that employer was good to him and other injured employees by trying to find work that they could do after they were injured (transcript, pages 28, 55 and 56). Claimant was allowed to choose the core maker job from a number of opportunities presented by employer. It is now well accepted that efforts by an employer to assist an injured employee by providing good medical care, good vocational rehabilitation assistance, a work hardening program and functional capacities examination, and by providing employment for the injured employee are measures to be taken into consideration in the determination of industrial disability. Claimant testified that he could not return to chipping and grinding because there had been a cutback in the brass foundry and there were two people who had more seniority than he. There was a floater job, but he did not take it because sometimes this job called for lifting as much as 100 pounds (transcript, pages 29 and 30). There was evidence that the maximum normal lift in chipping and grinding was 70 pounds. Dr. Boulden said that claimant could return to this work on March 17, 1987 (exhibit 10, page 12). Claimant testified that Dr. Boulden did not tell him he was prohibited from performing the chipping and grinding job, but did recommend against it. There is no written evidence that Dr. Boulden ever placed any restrictions or limitations on claimant. Dr. Boulden was the only physician who treated claimant after the surgery. Thomas Bower, the licensed physical therapist, determined that claimant could safely lift 65 pounds from floor to waist, 54 pounds from knee to chest and 55 pounds overhead. He said claimant could carry 52 pounds, push 39 pounds and pull 65 pounds (exhibit 15, page 8). These restrictions were never formally adopted or imposed by Dr. Boulden, even though he referred to the work hardening program and functional capacities evaluation in his letter of March 13, 1987 and in the same letter he said that claimant told him the maximum he has to lift at work is 70 pounds (exhibit 10, page 12). Dr. Boulden released claimant to return back to work, apparently provided the 70-pound lifting restriction was in writing (exhibit 10, page 12). Claimant did return to work as a core maker earning $12.00 per hour with the piece rate incentive for this job. He was able to perform the core maker job from late March or April of 1987 until the time the strike occurred on May 7, 1987. From the foregoing evidence, it is determined that claimant has not sustained a substantial loss of earning capacity. The fact that there were employees senior to claimant which prevented his return to chipping and grinding is not a loss caused by this injury. With respect to the floater job, there is no evidence that claimant had ever performed the floater job prior to the injury. The fact that pay rates and incentive pay rates were less after the strike than before the strike is an economic factor unrelated to this injury. The strike itself is an economic factor which affected all union employees and is unrelated to this injury. Webb v. Lovejoy Construction Company, II Iowa Industrial Commissioner Reports, 430 (App. Decn. 1981). Since the decertification, claimant has been invited to return to work. Holmberg testified that claimant would be put to work if he applied for work. The fact that claimant has chosen to not apply for available work is a personal decision for which employer should not be held liable and which is unrelated to the injury to the back itself. Claimant has impliedly indicated that he is able to perform factory and foundry work because of the large number of applications that he has made for factory and foundry work after recovering from this injury. At the worst, claimant is foreclosed only from those heavier manual labor jobs such as the floater job in chipping and grinding which requires lifting over approximately 65 or 70 pounds. Michael v. Harrison County, 34th Biennial Report of Industrial Commissioner, 218, 220 (App. Decn., January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report, 282 (1984). In this case, there is no evidence that claimant had ever performed heavier manual labor jobs that required lifting more than 70 pounds. Claimant's injury did require back surgery. The surgery performed was a decompression laminectomy. It was not a fusion. Dr. Boulden awarded claimant a ten percent permanent impairment rating. This permanent functional physical impairment to the body as a whole is the most substantial evidence of industrial disability in this case. Added to that is the fact, however, that claimant is 39 years old and should be near the high point of his earnings career. This makes his loss more severe than it would in the case of a younger or older employee. Becke v. Turner-Busch, 34th Biennial Report Industrial Commissioner, 34 (1979); Walton v. B & H Tank Corporation, II Iowa Industrial Commissioner Report, 426 (1981); McCoy v. Donaldson Company, Inc., Travelers Insurance Company, and Second Injury Fund of Iowa, file numbers 752670 and 805200 (App. Decn, April 28, 1989). At age 39, claimant is young enough to be retrained. The feasibility of retraining is one of the considerations involved in determining industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report, 74, 78 (1984). Claimant does have the benefit of a high school education in which he received average grades. Although he found academic courses more difficult, he did find that he was gifted in the manual arts. He has proven his ability to earn money through application of the manual arts by doing well on his incentive pay as a chipper.and grinder and as a core maker. Some consideration should be given to the fact that an employee that has sustained a back injury which required surgery and involved a workers' compensation claim is less employable than an employee who is not in this position. Consideration must be given to how much of claimant's disability is due to this injury and how much of it is due to his degenerative back condition which both preceded and followed his recuperation from this injury. The first time claimant saw Dr. Boulden, the doctor diagnosed degenerative back condition. The last time Dr. Boulden saw claimant, he diagnosed it as continuing aches and pains which were secondary to his remaining degenerative back condition. Consideration must also be given to the fact that Dr. Berg, a neurosurgeon, Dr. Hines, a neurologist, and Dr. Summers, whose speciality is unknown, could not pinpoint the cause of claimant's pain in his back. Dr. Dubansky, looking at the same CAT scan which Dr. Boulden looked at as well at as his own x-rays, could not pinpoint the cause of claimant's back pain. Because it did not follow a neurologic pattern, he felt there was a certain degree of psychological overlay. Dr. Dubansky's only objective finding was degenerative back disease. Claimant seemed to be having the same general type of back complaints when he saw Dr. Boulden in February and March 1988 as he was having when he saw Dr. Hart and Dr. Berg in 1978 and 1979. Claimant testified at the hearing that his chief complaint is leg numbness. He has occasional back pain, but it is relieved by aspirin. Claimant has testified that he has not sought medical treatment for his back since he last saw Dr. Boulden in March of 1988, which was approximately one year prior to the hearing. The fact that claimant is earning only between $60-$500 per month selling used cars for a friend is not a loss of earning capacity due to this injury, but is rather due to the fact that he chooses to perform this work rather than accept the work which has been offered to him by employer. The chief indicators of loss of earning capacity in this case are: (1) the physical and functional impairment rating of ten percent to the body as a whole, (2) the fact that claimant is foreclosed from doing heavier manual labor jobs in the employment market, (3) the fact that claimant is near the peak of his earnings career at age 39, and (4) the fact that as a job applicant, claimant is a person that injured his back, received a laminectomy and has claimed workers' compensation benefits. Therefore, based upon all of the foregoing factors and all of the factors taken into consideration in order to determine industrial disability and by applying agency experience, technical competence and specialized knowledge (Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained an industrial disability of 20% of the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant sustained a ten percent permanent impairment as a result of the decompression laminectomy which was caused by the injury of September 27, 1985. That claimant is physically capable of performing all of the work he had done prior to this injury such as chipping and grinding and making cores. That claimant is foreclosed from jobs which require lifting weights in excess of approximately 65 or 70 pounds. That claimant was not placed under any formal permanent restrictions or limitations by Dr. Boulden, his treating orthopaedic surgeon. That claimant's current actual earnings as a part-time used car salesman and his economic condition as a result of these earnings is a matter of his own personal choices as they relate to labor-management relations with employer and his actual loss of earnings is not the result of the injury of September 27, 1985. That claimant has sustained an industrial disability of 20% of the body as a whole. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and foregoing principles of law, the following conclusions of law are made: That the injury of September 27, 1985 was the cause of permanent disability. That claimant is entitled to 100 weeks of permanent partial disability benefits based upon a 20% industrial disability to the body as a whole. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of three hundred sixty-four and 76/100 dollars ($364.76) per week in the total amount of thirty-six thousand four hundred seventy-six and 00/100 dollars ($36,476.00) commencing on March 21, 1987 as stipulated to by the parties. That defendants are entitled to a credit of fifty (50) weeks of permanent partial disability benefits paid to claimant at the rate of three hundred sixty-four and 76/100 dollars ($364.76) per week in the total amount of eighteen thousand two hundred thirty-eight and 00/100 dollars ($18,238.00) which were paid to claimant as workers' compensation benefits prior to hearing. That the remaining eighteen thousand two hundred thirty-eight and 00/100 dollars ($18,238.00) in permanent partial disability benefits is to be paid to claimant in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33, including the cost of the transcript of this hearing. That defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 5th day of May, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Fredd J. Haas Attorney at Law 5001 SW 9th Street Des Moines, Iowa 50315 Mr. Paul C. Thune Attorney at Law Suite 300, Fleming Building P.O. Box 9130 Des Moines, Iowa 50306-9130 1402.60, 1803 Filed May 5, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH MOORE, Claimant, vs. File No. 812059 CLOW CORPORATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.60, 1803 Claimant had a long history of back complaints and a degenerative back condition. He experienced pain at work, which resulted in time off work and a decompression laminectomy. Permanent impairment was ten percent of the body as a whole. Claimant was awarded 20% industrial disability. Employer provided: (1) good medical care, (2) good vocational rehabilitation assistance, (3) work hardening program and functional capacity evaluation, and (4) found a job claimant could do when he was released to return to work. No allowance made for economic factors caused by labor-management problems due to a strike and lower wages of employees after union was decertified. Primary factors used to make the award were: (1) the permanent impairment rating of ten percent, (2) the fact claimant was foreclosed from performing lifting in the future over 65 or 70 pounds, (3) the fact claimant was at the peak of his earnings career at 39 years of age and 19 years with this same employer, and (4) that claimant as a job applicant is a person with a work-related back injury that necessitated surgery and involved a workers' compensation claim.