BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ HELEN MAXINE CHRISMAN, Claimant, vs. File No. 812528 RIVER HILLS CARE CENTER, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 27, 1990 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. H. Edwin Detlie Attorney at Law 114 North Market St. Ottumwa, Iowa 52501 Mr. Walter F. Johnson Attorney at Law P.O. Box 716 Ottumwa, Iowa 52501-0716 9998 Filed November 10, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HELEN MAXINE CHRISMAN, Claimant, vs. File No. 812528 RIVER HILLS CARE CENTER, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed December 27, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HELEN MAXINE CHRISMAN, : : Claimant, : : vs. : : File No. 812528 RIVER HILLS CARE CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed February 15, 1989. Claimant allegedly sustained a back injury during the course of her duties as a nurse's aide while helping to lift a patient on November 20, 1985. She now seeks benefits under the Iowa Workers' Compensation Act from her employer, River Hills Care Center, and its insurance carrier, Liberty Mutual Insurance Company. Hearing on the arbitration petition was had in Ottumwa, Iowa, on March 28, 1990. The record consists of joint exhibits 1 through 71, claimant's exhibit 1, defendants' exhibits 1 through 3 and the testimony of claimant and her daughter, Debbie Aubrey. issues Pursuant to the prehearing report, the parties have stipulated: that an employment relationship existed between claimant and River Hills Care Center at the time of the alleged injury; that if claimant has suffered permanent disability relating to the alleged injury, it is an industrial disability to the body as a whole; that the proper rate of weekly benefits is $96.32; that defendants voluntarily paid 160 weeks, 2 days of compensation at the stipulated rate prior to hearing. Issues presented for resolution include: whether claimant sustained an injury on November 20, 1985, arising out of and in the course of her employment; whether the alleged injury caused either temporary or permanent disability, the extent of each and the commencement date of the latter; the extent of claimant's entitlement to medical Page 2 benefits (it was stipulated that the fees charged for medical services or supplies are fair and reasonable, but disputed as to whether those expenses were incurred for reasonable and necessary treatment, were causally connected to the work injury, or were authorized by defendants); whether claimant is entitled to permanent total disability under the "odd-lot" theory of recovery; whether claimant is entitled to penalty benefits under Iowa Code section 86.13; taxation of costs. Because defendants have denied that claimant sustained an injury arising out of and in the course of employment, it is held that they are not entitled to raise a defense to medical expenses based on lack of authorization. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981). findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant, age 50 at the time of hearing, completed the eleventh grade, but has not since obtained a diploma or General Equivalency Diploma. However, she received certification through a nurse's aide course at Indian Hills Community College in about 1979. Claimant's work history is fairly limited. From the 1950's through 1979, she provided day care in her home and was self-employed as a house cleaner, generally light cleaning in various residences. On March 26, 1979, she began employment as a nurse's aide with River Hills Care Center and continued that work through the subject injury. River Hills Care Center is now defunct and the facility has been taken over by a successor business. Claimant has made no effort to work since. Claimant is 5 feet 3 inches tall and stated that she weighed some 185-190 pounds at hearing and had for the previous four years. Medical records show that claimant has long had a weight problem, weighing over 220 pounds in 1982 and having undergone gastric bypass surgery. When she saw D. Dale Emerson, M.D., on November 21, 1985, she weighed 175 pounds and was weighed at 173 pounds by Dr. Emerson on the following day. On November 29, she weighed 171 pounds. Through June 24, 1986, Dr. Emerson's last chart note, her weight remained fairly stable from 171-178 pounds. Claimant described the work injury as occurring while she and another nurse's aide were attempting to lift a patient who became combative. Claimant slipped and fell on her left knee, but began suffering pain in the right leg and low back. Dr. Emerson's initial impression was of muscle strain. Radiologist Greg Raecker, D.O., performed radiological and computerized tomography testing on February 7, 1986. No Page 3 abnormalities were seen. Radiologist J. J. Gleich, M.D., performed a bone scan on February 19, 1986. No abnormalities were seen. Radiologist T. R. Thurman, M.D., performed a bone scan on May 9, 1986. No abnormalities were seen. Further radiographic studies done by Dr. Thurman on June 23, 1986 (of the pelvis and hip region) were unremarkable with no arthritic changes noted. Electromyography performed on October 28, 1986 by Mark Ross, M.D., or D. Morris, M.D., at the University of Iowa Hospitals and Clinics was normal. Computerized tomography and a lumbar myelogram were performed at the University of Iowa Hospitals and Clinics and were read by Robert M. Farner, M.D., and Ronald P. Mueller, M.D., on October 28, 1986. No abnormalities were seen. Magnetic resonance imaging of the lumbar spine was performed by D. L. Roberson, M.D., on November 13, 1987. Interosseous lypomas were seen at L2, L3 and probably T12, but the MRI scan of the lumbar spine was otherwise normal. Richard F. Neiman, M.D., reviewed x-rays and CT scans from the University of Iowa and felt that they suggested an abnormality at approximately L5-S1. He felt the CT scan showed a deformity, but that myelogram and x-rays did not. Dr. Neiman then did EMG testing on November 15, 1987 and found an abnormal H-wave reflex on the left side (but noted claimant's pain symptoms were on the right side only) and was unsure as to the correlation. Dr. Neiman's opinions are discussed at more length below. Claimant was seen by Donald D. Berg, M.D., on March 20, 1986. Dr. Berg noted that x-rays and CT scans showed no evidence of a herniated disc and wrote to Dr. Emerson of his clinical impression of lumbosacral strain with some right sciatic pain, some bursitis. He at that time felt claimant's prognosis to be good, but noted that her recovery had been slowed due to excessive weight. Dr. Berg's clinical impression of May 8, 1986 was of lumbosacral strain and right sciatica associated with her fall at the nursing home. Claimant was admitted to St. Joseph Health and Rehabilitation Center on May 6 and was discharged on May 17. Final diagnosis was a right sciatica and lumbosacral strain, improved with bed rest, physical therapy and anti-inflammatory medication. Dr. Berg anticipated returning claimant to light work in one week. On May 27, Dr. Berg noted that claimant's sciatic pain was resolving, but markedly improved and released her to return to work with a 50-pound lifting limit. Dr. Berg felt she should not increase that limit for a six-month period. Dr. Berg testified by deposition on May 26, 1989. He is a board-certified orthopaedic surgeon. He noted that myelogram, MRI, CT scan, x-rays, EMG's and bone scans all failed to disclose any structural abnormalities whatsoever. Dr. Berg felt that claimant's condition had "stabilized" as of May 27, 1986, and that he did not see her again until May 4, 1989. It was his impression that she suffered a back strain and had muscle spasms with some Page 4 sciatic pain. On May 4, 1989, claimant stated that she continued to suffer back pain and pain radiating into the right leg more than the left. She weighed 192 pounds on that date (almost a 20-pound increase). Dr. Berg testified: Q. Doctor, with a person who has no objective findings through the sophisticated tests that you've mentioned, but who appears to have muscle spasms, what is the consequence or what happens with people having that condition who continue to gain weight such as she has? A. Well, usually they don't get better. I mean, they continue to have pain. They continue to have problems with muscle tightness. And they sometimes will get worse. Q. What have you found over the years as to the possibility of total recovery from muscle spasms with loss of weight from someone that's grossly overweight? A. Usually, they usually get better. Q. How much overweight is she? A. Well, 192 pounds, I would say it would be good for her to lose 40 to 50 pounds. Q. Do you have any equation of any kind of what the consequence on pressure on one's back is with an overweight situation of approximately 50 pounds? A. Well, it's not a one-to-one ratio. I forgot the exact ratio. But I do know that in certain position when you are lifting, it can go up four or five times, you know, because of your weight. You know, I don't know exactly. Q. Do some doctors feel that there is a ten-to-one ratio in that? A. Certain types of lifting, yes. Q. And would the consequence of that be, if that is a fact, that it would be the equivalent of carrying a 500 pound load for an individual who is 50 pounds overweight? A. Sure. (Dr. Berg deposition, page 18, line 1 through page 19, line 10) And: Q. Doctor, in layman's language, what is this Page 5 woman suffering from, if anything, insofar as her allegations of back pain are concerned? A. Well, I think she's strained her back originally, and has gotten into a situation where she, you know, has gained some weight and lost the flexability [sic] in her back and has gotten into a chronic -- situation of chronic back pain. Q. And is that a condition which she could alleviate in whole or in part? A. I still think so, yes. Q. In what way? A. Weight loss, I think flexability [sic] exercises, going to physical therapy. I think maybe going to voc. rehab and getting into activities, maybe that don't require doing heavy lifting. Q. What has your experience been over the last 14 years as a Board certified orthopedic surgery with people having a condition such as this claimant has who cooperate with a systematic exercise program and a loss of weight such as you've described? A. It's pretty rare that somebody doesn't get to the point where they can go back and go to work. Q. And would they in that situation in some likelihood or all likelihood or whatever you feel develop a situation where there would be no functional impairment at all relative to the condition which you found on May 4, 1989? A. Yes. That's true. Q. Is there anything structurely [sic] wrong with this lady at all? A. Not that I can find in my evaluations, no. (Dr. Berg deposition, page 20, line 15 through page 21, line 24) Dr. Berg did not believe that claimant needed any surgical intervention. He was of the view that claimant had sustained an impairment to the body as a whole equivalent to three percent by reason of the subject work injury. This was based on American Medical Association guidelines. It was further his view that, as of May 4, 1989, claimant could continuously engage in eight-hour work days, although she perhaps would have some episodes of her back tightening up. He would limit claimant to lifting 30 pounds and it would be good to avoid bending and doing a lot of frequent twisting Page 6 "to start this off." He felt that claimant could bend, squat, crawl, climb and reach over the shoulder up to 50 percent of the time, but not continuously. Dr. Berg found no evidence of disc protrusion or herniation of any nature. When asked whether he was familiar with the concept of "internal disruption" of the disc, he indicated that he was, but that it was not involved in this case. Dr. Berg wrote on June 26, 1990, that he believed claimant's limitations should be against lifting beyond 25-30 pounds and to avoid frequent twisting and bending of the back. He felt lifting and carrying over 25 pounds on a frequent basis would probably give claimant problems, as would standing for a full eight-hour day without breaks. Overall, he believed claimant could do lighter sedentary work. Claimant was seen by Jack W. Brindley, M.D., on June 25, 1986. He found it difficult to make a definite diagnosis and referred her to the University of Iowa facility. In a letter of November 17, 1986, Dr. Brindley stated he was not in a position to know if claimant had improved or whether she suffered permanent impairment. At the University of Iowa, claimant was seen by Dr. Mumford and William O. Shaffer, M.D. Based on an impression of possible right-sided L5-S1 herniated disc with L5-S1 radiculopathy, claimant was scheduled for an epidural steroid injection which was performed on August 21, 1986. Discharge summary from the University of Iowa dated October 29, 1986 showed diagnosis of mechanical low back pain with no organic pathology and was executed by William O. Shaffer, M.D., and Cathy C. Wilson, M.D. Dr. Shaffer saw claimant for follow-up on May 8, 1987. Diagnostic studies again showed no instability and there was normal myelogram, CT and EMG's. His impression was of back and right leg pain of unknown etiology. "Disability" was estimated at 5-10 percent. In a letter of March 25, 1987 to claimant's counsel, Dr. Shaffer wrote of his impression of low back pain with no organic diagnosis. He stated it would be difficult to hypothesize how long claimant's healing period would continue since there was no organic diagnosis on which to prognosticate. "If she is unable to work at this time I doubt that she will ever be able to return to work for as much behavioral impairment as an actual physical impairment." With respect to functional limitations, Dr. Shaffer recommended a functional capacity evaluation be performed in the physical therapy department. Claimant was thereupon evaluated for the rehabilitation program on July 22, 1987. J. N. Weinstein, M.D., Associate Professor of the Spine Treatment and Research Center of the University of Iowa Hospitals and Clinics, wrote claimant on August 3, 1987 that her physical exam and diagnostic studies were essentially negative and that he had reviewed her Page 7 evaluation for the low back pain rehabilitation program with the spine team and had the following comments: 1. I would estimate your permanent partial impairment to be 2 percent of your body as a whole. 2. I do not feel that you would be a good candidate for the program due to your current physical limitations, some of which appear to be the result of self-limitation. At this time, you would not be able to complete all parts of the physical therapy as you have be [sic] limited flexibility, leg strength and trunk strength. Dr. Weinstein's chart notes of July 22, 1987 contain the following passage: * * * She states she has considered some type of vocational change but not thought seriously about it. She is honest in saying "I would not mind at all being a homemaker for the rest of my life" if she could be financially secure. She would work only if she had for [illegible] by 22 mos post injury and does not see herself as anywhere near ready to return to work at this time. Her attitude seems to be that she will evaluate vocational after all of her comp is settled. Claimant was seen by Richard F. Neiman, M.D., a board-certified neurologist, on two occasions: July 6, 1987 and October 10, 1988. Dr. Neiman testified by deposition on April 13, 1989. On July 6, 1987, Dr. Neiman wrote Drs. Shaffer and Emerson (as referring physicians) that x-rays of the lumbosacral spine with flexion and extension revealed no significant abnormalities and that EMG testing was planned. He found claimant to exhibit several objective signs of back pain radiating to the leg. Claimant had a suggestive foot drop on the right and there was a two centimeter diminution in the size of the calf on the right side. In addition, claimant had a positive result when tested with straight leg raising of the opposite leg, known as Fajersztajn's test, one which the doctor believed beyond the sophistication of most patients to demonstrate on an hysterical basis. Claimant complained of pain in the lower back into the right buttocks accentuated by activity. No other physical findings were made, and Dr. Neiman agreed that no objective test has revealed any structural abnormality. Dr. Neiman suggested the possibility that claimant might suffer internal derangement of a disc, itself apparently a rather new concept, but agreed that he could not make that diagnosis to a reasonable degree of medical certainty. Dr. Neiman believed claimant to be approximately 50 pounds overweight and suggested weight reduction. Page 8 Cross-examined on that issue, he testified: Q. Has there been any weight reduction of any kind? A. I don't know. AT least as far as the last visit, there was no evidence of weight reduction. The weight was essentially the same, 189 to start with, 190 when I saw her the second time. Q. Doctor, what effect does that have on someone who claims to have backache, back problems? A. Well, there is a law of physics as far as leverage force. Ten pounds of excessive abdominal weight produces about a hundred pounds of stress on the back. Doesn't mean that she has 500 pounds of excessive stress of the back, but she probably has between 200, 250 pounds excessive stress of the back because of her weight. Q. Would that be just like carrying a 250-pound weight on your back? A. Well, it's not the same, but it's like carrying around a large baby with the fluid in this regard, so certainly many pregnant women have considerable amount of back discomfort. Q. If she has no objective findings of any kind and all of her problems appear to be subjective complaints, are those subjective complaints likely to continue as long as she retains this sort of weight? A. Well, certainly they're not helped at all with this weight, and they're aggravated by the weight itself. Q. What about her failure to perform any type of exercises such as you prescribed. Did you prescribe those from the very start also? A. Yes. Q. What effect will that have if she fails to do that the balance of her life? A. Again, we are kept in the upright position between -- to balance the muscles in the back and those in the front, her abdominal muscles. Her abdominal muscle tone was not the best, and her back muscles stay fairly strong and you're literally arching the back, pushing her backwards and putting more stress on the back, and our normal exercise program is designed to increase the abdominal muscle tone to restore a more equal balance as far as her back. Page 9 Q. What you're saying is this lady is making a lot of her own problems. MR. DETLIE: I would object to that as -- as a misparaphrasing the testimony. Q. Is that a correct statement, Doctor? A. I think we can say that because of her noncompliance with weight reduction and exercise that she certainly is accentuating the amount of discomfort that she has. I honestly think if she would lose the weight and work on an exercise program that her pain could improve. Q. So in those two respects at least, she is not cooperating? A. She is noncompliant as far as those two issues, yes. (Dr. Neiman deposition, page 23, line 24 through page 26, line 11) Dr. Neiman suggested a swimming program, but claimant refused on the basis of a personal phobia. It appears there was a tragic drowning in her family history. However, claimant has not undertaken any other exercise program Page 10 either. Nonetheless, Dr. Neiman expressed the view that claimant did have real pain and that it was speculative to consider how much her current pain would be reduced through weight loss. Dr. Neiman also discussed his belief that claimant's psychological condition of depression is secondary to persistent back pain. Dr. Neiman agreed that back pain was not necessarily the sole cause of depression, but certainly felt it was a major aggravating factor. He further pointed out that depression itself can cause a psychomotor retardation which can interfere with a number of life activities, presumably including claimant's ability to cooperate with treatment modalities such as exercise or weight loss. Dr. Neiman felt that claimant had reached maximum healing on October 10, 1988, as pain had been fairly stable and did not seem to be getting better or worse. He further specified his belief that the back pain itself was causally related to the lifting incident that is the subject of this litigation. He rated claimant as having sustained a five percent impairment of the whole body. On October 30, 1988, Dr. Neiman filled out a functional capacity form indicating that claimant could sit, stand or walk four hours continuously with rests (in his deposition indicating his expectation that claimant would improve to eight hours), that she never lift over 51 pounds and only occasionally up to 30, and that she only occasionally carry 11-20 pounds or bend, squat, crawl, climb, or reach above shoulder level. He suggested mild restrictions against unprotected heights, being around moving machinery, exposure to marked changes in temperature and humidity and exposure to dust, fumes and gases. However, it does not seem that all these restrictions are causally related to the work injury itself. Claimant was referred by her attorney to a psychiatrist, L. Elaine Ham, D.O. After an initial visit on February 6, 1989, Dr. Ham assessed claimant as: Axis I: (1) Major depressive episode (2) Probable codependency Axis II: Suspect personality disorder dependent type Dr. Ham continued seeing claimant. Her chart notes reflect that claimant has in the past and now had a number of personal problems, including a tendency to engage in relationships with alcoholic men and her son being convicted of robbery. On August 21, 1989, Dr. Ham wrote to Social Security Disability Determination Services (claimant has unsuccessfully sought Social Security disability benefits) that claimant suffered from chronic depression secondary to her chronic pain and that the prognosis for her improvement was poor. She felt claimant to be disabled and incapable of Page 11 gainful competitive employment. Dr. Ham's chart notes repeatedly employ the phrase "totally disabled from gainful competitive employment," indicating to this reader that those notes were written specifically with Social Security disability in mind. Dr. Ham's chart notes of February 21, 1989 note that she specifically urged claimant to apply for Social Security disability and that she should qualify based on depression and physical problems. Dr. Ham is a Diplomate of the National Board of Examiners for Osteopathic Physicians and Surgeons and is board-eligible in psychiatry for purposes of the American College of Neuropsychiatrists. In a questionnaire as to mental residual functional capacity, apparently for Social Security purposes, Dr. Ham found claimant to be markedly impaired in many respects (e.g., ability to relate to others, constriction of interests, ability to carry out very short and simple instructions, the ability to accept instructions, etc.) and moderately impaired in others (e.g., deterioration in personal habits, the ability to simple work-related decisions, the ability to ask simple questions, etc.). Claimant was also seen for psychiatric evaluation by Michael J. Taylor, M.D. Dr. Taylor reported a diagnosis of major depressive disorder, recurrent, and stated to the extent claimant's current back discomfort was related to the work injury, her disorder had been aggravated. However, he opined that there was absolutely no indication of any permanent psychiatric impairment and that there was every reason to believe that with appropriate treatment, there would be absolutely no psychiatric functional limitations to claimant returning to her usual and customary employment. In a letter of March 21, 1990, Dr. Ham responded to Dr. Taylor's report, agreeing with everything except that there was no permanent psychiatric impairment. She felt that claimant would have chronic mild depressive symptoms which would become aggravated with stress and that to attempt full-time work with her degree of physical discomfort would cause a worsening of depressive symptoms. Claimant was offered vocational assistance with Jack Reynolds, rehabilitation consultant. However, claimant did not meaningfully seek to rehabilitate herself. Claimant decided against seeking to obtain her GED and against pursuing training in the bookkeeping field. She was not interested in pursuing job placement. In a report of December 21, 1988, Reynolds complained that claimant had not followed through with GED training or testing, had not pursued classes in income tax preparation, had not contacted her counselor at the Iowa Division of Vocational Rehabilitation (Paul Halferty), had not looked for employment, had not involved herself in exercise programs, no longer wished to pursue training, had made no attempt to learn how to drive an automobile, and spent the majority of Page 12 her time in her house, except for occasional walks of a few blocks. It might be noted that claimant testified to the ability to walk only two blocks, but continues to live four blocks from a bus stop, even though she does not and has never driven an automobile. Paul Halferty, Ottumwa area counselor for the Division of Vocational Rehabilitation Services, wrote claimant's attorney as follows on December 13, 1988: I am in possession of your letter of December 12 regarding Helen Maxine Chrisman. Assuming that she does decide to call for an appointment I will be happy to talk with her. I do wish, however, to clarify the reasons which led to the closing of the file on August 12, 1988. The reason was not a difference of an opinion between Maxine and I as to what she would be capable of working on for rehabilitation, but that Maxine wasn't doing anything at all. She did not keep appointments, she did not start her GED work. She wouldn't even look into to [sic] starting her GED work, just absolutely did nothing that I could see. Under those circumstances we simply do not have a client to work with and have little choice but to close the file. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on November 20, 1985 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of November Page 13 20, 1985 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 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 Hosp., 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant's credible testimony establishes that she suffered a falling incident as she described while assisting a patient on November 20, 1985. The incident was promptly reported and claimant sought medical attention the following day. There is no question but that she was engaged in the course of her normal duties when this incident occurred. Claimant has met her burden of proof in establishing that she sustained an injury arising out of and in the course of her employment. Various physicians in this record have attributed claimant's onset of symptoms to the lifting incident. No contrary evidence appears of record. Claimant has established that the work incident is causally related to both temporary and permanent disability, although there is conflict in the evidence as to the extent of permanent disability. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant has never returned to work. It is unclear from the record whether she would have been able to return to the same position with a 50-pound lifting restriction on May 27, 1986, but this date was, at least, the date upon which her condition "stabilized" in Dr. Berg's opinion and seems in retrospect to have been something of a high-water mark, as claimant's sciatic pain was resolving and markedly improved. Afterwards, she gained substantial weight and her Page 14 condition appears to have deteriorated, at least as shown by more restrictive medical limitations imposed years later. It is held that claimant is entitled to healing period benefits from the date of injury until May 27, 1986, a total of 27 weeks. 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., Page 15 (Appeal Decision, March 26, 1985). This case presents problems in determining industrial disability. Although claimant has seen numerous physicians and undergone extensive sophisticated testing, including magnetic resonance imaging, myelography and computerized tomography, there is absolutely no objective evidence of any structural abnormality. Claimant appears to have sustained some nature of soft tissue injury, a strain or sprain, which has never fully resolved. The testimony of Dr. Neiman and Dr. Berg indicates that in the ordinary course of affairs, claimant would have been expected to make a full or nearly full recovery. Unfortunately, claimant was about 30 pounds overweight at the time of the injury and has gained approximately 20 pounds since then (and in particular, since May 27, 1986). In addition to gaining substantial weight (on the order of a 10 percent increase), claimant has completely refused to take any steps whatsoever towards her own rehabilitation. Although an exercise program was suggested by Dr. Neiman, swimming or otherwise, claimant has done nothing. She has missed appointments. She has decided against pursuing a GED or other education. She candidly told Dr. Weinstein that she would not at all mind being a homemaker for the rest of her life if she could be financially secure. The best evidence in this case indicates that claimant had greatly improved by May 27, 1986, and could have reasonably been expected to continue to improve but for her self-limitation, weight gain and refusal to participate in such necessary rehabilitative steps as an exercise program. As a result, her pain has become worse (both Dr. Neiman and Dr. Berg gave graphic testimony of the "leverage" effect of increased abdominal weight as a back stressor) and the increased pain has contributed to her depression. There can be little doubt but that for many people accomplishing a large weight loss is easier said than done. Yet, who should bear the financial burden when excessive weight is directly related to industrial disability? In fact, it cannot even be said that claimant's problem is due to a failure to lose weight, but rather that she gained very significant weight after her physical condition "stabilized" in the words of Dr. Berg. In many cases this writer considers motivation to be perhaps a less significant factor in assessing industrial disability than certain others, especially medical restrictions. Industrial disability is a measure of the loss of earning capacity, and motivation often is more directly related to loss of actual earnings rather than earning capacity. But in this case, claimant's lack of motivation is so extreme that it is, itself, by far the greatest cause of her current state of ill-being and unemployed status. Even though the medical evidence is that claimant's depression was exacerbated or aggravated by her Page 16 pain, the continuing pain itself appears most probably related to her increased weight and failure to participate in therapeutic exercise. It is, of course, to some degree speculative to consider what claimant's condition might have been had she lost (or at least not gained) weight and otherwise attempted to assist in her own rehabilitation. Yet, it would be patently unjust to defendants to permit claimant to in effect create her own disability through an unwillingness to rehabilitate herself and then send defendants the bill for a claimed permanent total disability. Claimant may indeed be totally disabled as she claims, but it appears to be a disability mostly of her own making. Accordingly, it appears that the fairest result in this case is to evaluate claimant's industrial disability based on her condition at the end of the healing period discussed above. She at that time had a medical restriction against lifting in excess of 50 pounds, although Dr. Berg apparently felt this might improve within the next six months. This restriction might well prevent claimant from returning to work as a nurse's aide, but would not necessarily interfere with her previous career choices as day care provider and self-employed light housecleaner. In fact, had claimant exercised and kept her weight down, she might have no medical restriction whatsoever at this point. Considering all these factors then, and the record in general otherwise, it is held that claimant has sustained a permanent partial disability equivalent to 20 percent of the body as a whole, or 100 weeks. As the parties stipulated that defendants voluntarily paid 160 weeks, 2 days of compensation at the stipulated rate prior to hearing, claimant has already been paid benefits in excess of her entitlement. Claimant also seeks compensation under Iowa Code section 85.27 for a bill apparently owing to McWilliams Drug totalling $434.00, apparently incurred largely for psychoactive medications. The only evidence is a dunning letter from a debt collector. Defendants have disputed whether the expenses were incurred for reasonable and necessary medical treatment or causally connected to the work injury. It is claimant's burden of proof to establish the necessity of this treatment and the causal connection, and the record presented is simply too sparse to meet that burden of proof. order THEREFORE, IT IS ORDERED: Claimant shall take nothing further from these proceedings. The costs of this action shall be assessed to Page 17 defendants pursuant to 343 IAC 4.33. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. H. Edwin Detlie Attorney at Law 114 North Market Street Ottumwa, Iowa 52501 Mr. Walter F. Johnson Attorney at Law 111 West Second Street P.O. Box 716 Ottumwa, Iowa 52501 1402.60; 1802; 1803 Filed December 27, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : HELEN MAXINE CHRISMAN, : : Claimant, : : vs. : : File No. 812528 RIVER HILLS CARE CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1802; 1803 Claimant proved she suffered back injury -- a strain or sprain -- but no medical tests showed any structural abnormality. She recuperated well for six months, but afterwards gained substantial weight and took no steps whatsoever to assist in her own rehabilitation. Her condition deteriorated and she developed depression. Healing period held to end when claimant reached a "high water mark" six months after injury and her industrial disability was assessed as of that point (medical restrictions subsequently were more limiting, but this was found to be due to her weight gain and failure to exercise). 1402.60 Record was too sparse to support award of disputed medical benefits where the only evidence was a dunning letter from a debt collector. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ HAROLD C. LEOHR, JR., Claimant, vs. File No. 812964 R & A TRUCKING, R E M A N D Employer, D E C I S I O N and THE TRAVELERS COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ This matter is on remand from the Iowa District Court for Black Hawk County. ISSUE The issue on remand is the extent of claimant's healing period. FINDINGS OF FACT Claimant injured his right hand on December 4, 1985. Claimant was eventually referred to William F. Blair, M.D. Dr. Blair testified that it was his opinion on April 22, 1986 that claimant's hand had healed to the extent that significant improvement was not expected. At that time Dr. Blair felt he could render an opinion on permanent partial disability. (Exhibit 1, page 9, lines 15-25). Dr. Blair released claimant to return to work on June 1, 1986. Dr. Blair also testified that when he examined claimant on August 7, 1987 that there had not been any significant change in his condition since May 6, 1986. In a letter dated April 22, 1986 Dr. Blair wrote: "I anticipate a return to work date of June 1, 1986. ... Mr. Leohr has probably not reached his total maximum healing, as additional small amounts of increases in active range of motion and grip strength are a possibility. However, for all practical purposes I believe his healing period has ended." At the time of the hearing claimant had not returned to work. Also, he was not medically capable of returning to substantially similar employment. CONCLUSIONS OF LAW Iowa Code section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement from the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The question to be resolved in this case is when claimant achieved maximum medical recovery. The evidence of Dr. Blair indicates that claimant reached maximum medical improvement on April 22, 1986. However, the district court in its ruling has ruled that a decision ending the healing period on that date was in error. Although that appears to be the proper date, the district court decision in this case is the law of this case. For the sake of judicial expediency and efficiency, this agency will acquiesce to the court's ruling. Although Dr. Blair indicated there would be little increase in improvement after April 22, 1986, he nonetheless did not anticipate a return to work until June 1, 1986. Because claimant was not released to return to work until June 1, 1986, under the facts and law of this case, claimant did not reach maximum medical improvement until June 1, 1986. Therefore, claimant's healing period ended on June 1, 1986. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant healing period benefits from December 4, 1985 until June 1, 1986, at the rate of one hundred sixty-two and 40/100 dollars ($162.40) per week. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of June, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert D. Fulton Attorney at Law P.O. Box 2634 Waterloo, Iowa 50704 Mr. Scott E. McLeod Attorney at Law P.O. Box 2457 Cedar Rapids, Iowa 52406 BEFORE THE IOWA INDUSTRIAL COMMISSIONER HAROLD C. LEOHR, JR., Claimant, File No. 812964 vs. A P P E A L R & A TRUCKING, D E C I S I O N Employer, F I L E D and NOV 30 1989 THE TRAVELERS COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding healing period and permanent partial disability benefits. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 3, 5 through 8 and 10 through 12; and claimant's exhibits 4 and 9. Both parties filed briefs on appeal. ISSUES Claimant states the issues on appeal are: I. Whether the deputy industrial commissioner erred in not awarding the claimant a running award for healing period benefits and whether the deputy industrial commissioner erred in not entering an order authorizing the claimant to obtain further medical treatment from Dr. Delbridge or other qualified hand surgeons to relieve his pain syndrome and to get maximum function of the hand. In the alternative if the industrial commissioner should determine that there should not be a running award, the issue is whether the deputy industrial commissioner was correct in setting the end of the healing period as April 22, 1986 as opposed to June 1, 1986. II. Whether the deputy industrial commissioner erred in holding that the industrial commissioner is bound by the impairment ratings of the physicians in assessing disability for scheduled injuries and whether the industrial commissioner is required to make an independent assessment of the extent of disability resulting from a scheduled injury based on loss of use of the member. REVIEW OF THE EVIDENCE The arbitration decision filed October 26, 1988 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. Claimant is correct in stating that the industrial commissioner and deputy industrial commissioners are not bound by the impairment ratings of physicians in assessing disability for scheduled injuries. However, a review of the deputy's decision reveals that she properly considered the law and the evidence presented. In this case the deputy and the undersigned determined a physicians rating of impairment to be correct. That does not mean that evidence in another case might point to a different conclusion. FINDINGS OF FACT 1. Claimant was employed as a mechanic's helper with R & A Trucking. 2. Claimant is right-hand dominant. 3. Claimant sustained an injury arising out of and in the course of his employment at R & A Trucking on December 4, 1985 when his right hand became entangled in a dual semi-tractor tire show chain. 4. Claimant sought treatment with John Moes, M.D.; Dr. Ahrenholz; Dale G. Phelps, M.D.; and William F. Blair, M.D. 5. Claimant was examined by Bruce L. Sprague, M.D., and Arnold E. Delbridge, M.D. 6. Dr. Blair is an Associate Professor of Orthopaedic Surgery at the University of Iowa Hospitals and Clinics with a subspeciality of hand surgery. 7. Dr. Sprague is associated with Surgery of the Hand and Upper Extremity. 8. Dr. Delbridge has a practice limited to orthopaedic and hand surgery. 9. Drs. Sprague and Blair do not believe that further surgical intervention and medical treatment would benefit claimant, but subsequently felt that, given claimant's rather extensive pain syndrome, he was unlikely even with surgery to gain additional function of the hand. 10. The record is unclear as to whether claimant has sympathetic dystrophy of the hand. 11. Claimant does have a significant pain experience in the hand. 12. Additional surgery and medical treatment would not significantly benefit claimant and is not reasonable and necessary alternate care for claimant. 13. Claimant has significant loss of his gripping, pushing, pulling, prehension of pinching functions in the hand. 14. The AMA guides do not account for the function of pinch, grip, hook, and push in determining impairment. 15. The AMA guides primarily assess range of motion in determining impairment. 16. Losses of such functions do not necessarily not correlate at least reasonably well with losses of range of motion. 17. Dr. Delbridge's impairment rating took into account claimant's purported sympathetic dystrophy whereas Dr. Blair's impairment rating did not. 18. Claimant's purported sympathetic dystrophy could well be an attempt to account for claimant's significant pain in the hand. 19. Claimant has a loss of use of the right hand of 65 percent. 20. Claimant has not returned to work and is not medically capable of returning to substantially similar employment. 21. Claimant achieved maximum medical healing on April 22, 1986. CONCLUSIONS OF LAW Claimant has not established that he is entitled to additional medical care as recommended by Dr. Delbridge as reasonable and necessary medical care. Claimant has established that he is entitled to healing period benefits from his injury date through April 22, 1986. Claimant has established that he is entitled to permanent partial disability benefits of 65 percent of the right hand. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant permanent partial disability benefits for an additional one hundred twenty-three point five seven one (123.571) weeks at the rate of one hundred sixty-two and 40/100 dollars ($162.40) with those payments to commence on April 23, 1986. That defendants pay claimant healing period benefits at the rate of one hundred sixty-two and 40/100 dollars ($162.40 from December 4, 1985 through April 22, 1986. That defendants pay accrued amounts in a lump sum. That defendants.pay interest pursuant to Iowa Code section 85.30. That defendants pay the costs of the hearing proceeding and claimant pay the costs on appeal including the cost of the transcription of the hearing proceeding pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 30th day of November, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Robert D. Fulton Attorney at Law P.O. Box 2634 Waterloo, Iowa 50704 Mr. Scott E. McLeod Attorney at Law P.O. Box 2457 Cedar Rapids, Iowa 52406 5-1802 Filed June 25, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HAROLD C. LEOHR, JR., Claimant, vs. File No. 812964 R & A TRUCKING, R E M A N D Employer, D E C I S I O N and THE TRAVELERS COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 5-1802 On remand from district court it was determined that claimant's healing period ended when he reached maximum medical improvement. Under the facts and law of this case claimant reached maximum medical improvement when the treating doctor anticipated claimant would return to work. 1803 - 2500 - 2700 Filed November 30, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER HAROLD C. LEOHR, JR., Claimant, vs. File No. 812964 R & A TRUCKING, A P P E A L Employer, D E C I S I 0 N and THE TRAVELERS COMPANY, Insurance Carrier, Defendants. 1803 Claimant awarded permanent partial disability benefits of 65 percent of the right hand. Rating of physicians utilized even though based on AMA Guides which largely evaluate loss of range of motion and which do not generally evaluate other losses of hand function. 2500 - 2700 Claimant denied request for additional surgery where surgery not shown to likely produce significant improvement in function of injured hand. Deputy affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HAROLD C. LEOHR, JR., Claimant, vs. File No. 812964 R & A TRUCKING, A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Harold C. Leohr, Jr., against his employer, R & A Trucking, and its insurance carrier, The Travelers Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained December 4, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner at Waterloo, Iowa on October 8, 1987. A first report of injury was filed on January 2, 1986. The record in this proceeding consists of the testimony of claimant and of Sandra K. Leohr as well as of joint exhibits 1 through 3, 5 through 8 and 10 through 12 and claimant's exhibits 4 and 9. Defendants' objections to claimant's exhibit 9 are overruled. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimant's rate of compensation is $162.40; that claimant did receive an injury which arose out of and in the course of his employment; and, that there is a causal relationship between that alleged injury the claimed disability. The parties stipulated that claimant's disability is a scheduled member loss to the right hand, but indicated that the issues remaining to be decided are the nature and extent of any such loss and whether claimant is entitled to additional treatment under section 85.27. Claimant reasserted his request to bifurcate the claim for additional medical entitlement with the issue of permanency to be determined at a later date. REVIEW OF THE EVIDENCE Claimant was a mechanic's helper with the employer, R & A Trucking. As such, he washed trucks with a steam and pressure hose. He also changed oil and lubricated trucks. Claimant is right-hand dominant. The pressure hose required him to grip with his nondominant left hand while using his right hand to control LEOHR V. R & A TRUCKING PAGE 2 the trigger mechanism. Claimant used screwdrivers and hammers in his work. Claimant was injured on December 4, 1985 when his right hand became entangled in a dual semi-tractor tire snow chain. The hand and chain were pulled under the front dual while the semi was operating. Claimant initially treated with John Moes, M.D., who attempted to refasten the skin. Claimant saw Ahrenholz, M.D., for skin dressing on seven occasions from December 6, 1985 through December 31, 1985. He subsequently saw Dale G. Phelps, M.D., on his own. Dr. Phelps referred claimant to William F. Blair, M.D., who prescribed physical therapy and finger braces. Claimant also saw Bruce L. Sprague, M.D., at the insurer's request and Arnold E. Delbridge, M.D., at his counsel's request. Claimant testified that the insurer has not authorized the treatment Dr. Delbridge recommended. At hearing, claimant demonstrated his loss of use of his hand. Claimant is unable to perform a full pinch mechanism with his small, ring or middle fingers. Claimant can perform a limited pinch mechanism with his thumb and index finger, although the prescribed mechanism is such that the palm of the thumb slides to the side of the index finger. He cannot perform the normal pinch mechanism wherein the palm of both digits would meet. Claimant does use the thumb and index finger mechanism to pick up coins, pins and pencils. Claimant is able to write with a "claw-like" motion. Claimant can grasp a hammer awkwardly between the thumb and index finger. He uses a screwdriver in a similar manner. Claimant cradled a suitcase handle in the palm of his hand. He is unable to grasp in a normal manner. Claimant's fingers are very painful to touch. Claimant worked from 30-35 hours per week in the spring prior to hearing painting trim on an apartment building. Claimant reported that he held the one and one-half inch brush between his thumb and index finger and that he would hold any larger brush in the same manner. Claimant has not tried painting with a larger brush, however. Claimant drives a Datsun stick-shift pickup. He uses the heel of his hand to shift the vehicle. Claimant changes oil in his own truck and reported he could wash the truck since he uses only rags to do so. Claimant reported that he is able to grasp his own lawnmower by using a closed lefthand fist and the pinch mechanism of the right thumb and index finger. He reported that he had helped to saw Christmas trees in 1986. Claimant has not.tried driving any larger trucks. He is not registered with Job Service, but reported that he would undertake vocational rehabilitation following medical treatment and that he has looked into such. Claimant's wife, Sandra K. Leohr, substantiated claimant's testimony and his demonstrated loss of use of his right hand. William F. Blair, M.D., testified by way of his deposition taken August 20, 1987. Dr. Blair is Associate Professor of Orthopaedic Surgery at the University of Iowa Hospitals and Clinics. His subspecialty is hand surgery. The doctor saw claimant on March 11, 1986 with a stiff, contracted finger with inadequate dorsal skin coverage. He reported he recommended physical therapy and anti-inflammatory medications. The doctor reported that neither claimant's range of motion nor the physical functioning of claimant's hand significantly improved while the University of Iowa Hospitals and Clinics treated claimant. Claimant apparently was discharged from the University's care on LEOHR V. R & A TRUCKING PAGE 3 May 6, 1986. The doctor opined that claimant's healing period ended on April 22, 1986. He stated that he had never prescribed further surgery for claimant and did not recommend such. Claimant was released for work on June 1, 1986. Dr. Blair assigned a 58% permanent partial impairment of the right hand at approximately that time. He agreed that the impairment rating was arrived at through use of the AMA guides and considered claimant's loss of range of motion, but did not consider claimant's injury's effect on his daily life activities. Dr. Blair opined that claimant should still be able to put air in tires with a hose and should be able to use a pressurized hose to wash trucks. He agreed that he envisioned both activities as one-handed activities with the second hand assisting. He agreed he had not considered the possibility that claimant would need to actually drive trucks if he were to work as a truck washer. Dr. Blair opined that claimant could work on a caged platform, but stated claimant would possibly have difficulty grasping and gripping with the right hand if a free hand were needed for balance or support. The doctor opined claimant would be unable to handle a hammer right-handedly, but possibly could handle a shovel with modifications, although not proficiently. The doctor reported that he again envisioned such as a one-handed job with the second hand used only for assistance. Dr. Blair opined that claimant should be able to drive both a car and pickup, but felt that the vibration from operating heavy equipment could create a pain syndrome problem. He reported claimant physically could drive a dumptruck with modifications on the gear shift knobs and with power steering. Dr. Blair was skeptical that a pain clinic would benefit claimant. He felt that the nature of claimant's pathology and claimant's demonstrated distress from the injury were factors making any benefit less likely. The doctor stated he felt surgery was not recommended as a result of both the nature and complexity of claimant's problem. He described claimant's problem as a combination of fixed joint fractures, tendon adhesions and insufficient dorsal skin. He felt claimant had a dysfunctional pain syndrome with pain in the hand interfering with use of the hand. He also felt that claimant was distressed and angry with the employer and insurer. He opined that, in his experience, persons displaying such an emotional state are not optimum candidates for surgery. The doctor stated, ... as I view his circumstance, no simple, easy, relatively low-risk options...are available to us to improve his hand." (Exhibit 1, page 16). He opined that any medical treatment to improve the hand would involve a relatively major operative procedure with prolonged rehabilitation. Dr. Blair did not believe that claimant had reflex sympathetic dystrophy. The doctor described the hand's important functions, aside from range of motion, as gripping, pushing, pulling, prehension or pinching. He stated that a particular function's importance is relative to the task one wishes to accomplish. He agreed that the small, ring and large fingers are most important in gripping. He stated that claimant has very minimal grip capacity with those fingers, but can grip to a very limited extent. He reported claimant has almost no measurable pinch strength, though he can proximate the thumb to the side of the index finger. Dr. Blair agreed that the AMA guides' range of motion measurements LEOHR V. R & A TRUCKING PAGE 4 for determining impairments do not account very well for what goes on at the base of the thumb and that that activity is critical to the pinch function. He agreed that the guides do not account for the function of pinch, grip, hook, and push in determining impairment. The doctor opined that any surgery to pull the ring finger out into a more extended position would not translate into much greater functional capacity to push objects, although it had the potential for giving claimant a flatter hand surface. He stated the procedure described for surgery was not one he would attempt in the same circumstances, observing: Q. So you do not believe an operative intervention to get the ring finger out of the palm in some way probably by a combination of tendon grafts and repair and fusion of the PIP joint could be accomplished with Mr. Leohr? A. I would have to think very, very careful about that to be precise, but what's ominous about the plan -- first it's not precisely described. I can't tell what is connected and grafted where, extensors or flexors; and there's no indication in that description of in what sequence these activities are going to be performed. But one of the principles of tendon reconstruction is first obtaining an optimum range of passive motion across which the tendon graft is made. In Leohr's case he has significant contractures of all joints, MP, PIP and DIP joints. It's not logical to be tendon grafting across contracted joints until the contractures are first addressed. Further, it's an extremely unusual clinical circumstances, one which would simultaneously reconstruct tendons and fuse joints in the same fingers. Like with all these considerations in mind, I find the recommendation itself most puzzling and it becomes increasingly puzzling to me how that would benefit Mr. Leohr. Q. It it could free it from the hand, if it could free the fingers from the, hand, you could see how it would benefit him? A. Getting back to our previous comments on realistic expectation, it is not clear to me, given the complexity and the severity of the problems in his hand, how some small incremental amounts of improved extension in that finger is going to significantly improve Mr. Leohr's ability to function, driving truck, whatever. Q. And that's how you made your decision, on that basis? You look at the chance of success vis-a-vis what you would look at as a functional improvement and then you arrived at your decision? A. That along with other factors too. Q. The patient himself? A. Yes. LEOHR V. R & A TRUCKING PAGE 5 (Exhibit 1, page 36, line 10 through page 38, line 2) On April 22, 1986, Dr. Blair advised that claimant avoid activities requiring manipulation of small parts, tight pinch between the fingers and thumb, and the handling of parts or tools that require sustained tight grip with the right hand. He advised that claimant avoid climbing activities, the suspension of parts or equipment above shoulder level and work with a 20-pound, bimanual weight lifting restriction. The doctor then rated claimant's impairment at 58% of the hand, but agreed that the determination of impairment was somewhat difficult, given the complexity of the injury and the losses of active motion in multiple joints including the wrist and all fingers. On March 3, 1986, Dr. Phelps reported that claimant had what looked like Sudeck's [atrophy] and that he also had x-ray evidence of reflex sympathetic dystrophy with motteling of the bone. Dr. Phelps is a general orthopaedic surgeon. Bruce L. Sprague, M.D., of Surgery of the Hand and Upper Extremity, apparently saw claimant on July 23, 1986. He reported: On examination today, the patient has full range of motion of the elbow, forearm, and wrist of the right upper extremity. He has normal thumb and has full extension of the MP, PIP, and DIP joints of the index finger with flexion of the MP joint to 70 degrees, flexion of the PIP joint to 90 degrees, and the DIP joint to 30 degrees. He has very limited motion involving the MP, PIP, and DIP joints of the long finger, and the ring finger has a flexure contracture of 90 degrees at the PIP joint with no motion at the MP joint or DIP joint. The little finger has flexion of 30 degrees at the MP joint with limited flexion of 30 degrees at the PIP joint and no flexion at the DIP joint. He has dysesthesia involving the dorsum of the right hand of the long, ring, and little fingers. I feel that, because of this gentleman's dysesthesia, that no reconstructive surgery is going to be very beneficial, and at this point, I feel that the rating given by Dr. Blair at the University is a fair one and is the best avenue in order to settle this problem. I do not feel that he is a rehabilitative candidate, and I do not feel that further medical treatment would be beneficial. Arnold E. Delbridge, M.D., whose practice is limited to orthopaedic and hand surgery, saw claimant on June 3, 1986. He then described claimant's right hand as essentially useless, even as a helping hand, because of a flexed ring finger that gets in the way of anything he wants to grasp in his palm. He described the flexion as probably due to extensor disruption and subsequent flexion contracture of the PIP joint in particular and of the MP joint secondarily of the right ring finger. The doctor reported that claimant would like to have something done with his hand to improve function, it possible, and stated that that would be very difficult, although there were several things that could be done which might enhance function. The doctor proposed the following treatments: (1) sympathetic blocks done by anesthesia to relieve the element of reflex sympathetic dystrophy that was present, if LEOHR V. R & A TRUCKING PAGE 6 possible; (2) vigorous physical therapy to get all of the mobility possible out of the remaining good joints; (3) operative intervention to get the ring finger out of the palm in some way probably by a combination of tendon grafts and repair and fusion of the joint at the PIP joint; (4) utilization of a TENS unit and other pain relieving modalities as well as anti-inflammatories in addition to physical therapy to get as much function out of his hand as possible; and, (5) appropriate career counseling, if necessary. The doctor reported that, once claimant's finger was repositioned so that he could use his hand better, claimant may be able to return to some type of mechanic work, although he would continue to have problems in not being able to reach in tight areas with the right hand. The doctor stated claimant had chronic pain syndrome and needed vigorous treatment, even though with vigorous treatment, significant compromise might remain. He stated that, if treatment, rehabilitation and career counseling were not pursued vigorously, the patient could well be unemployable in the future. Dr. Delbridge once again saw claimant on October 5, 1987. On October 6, 1987, he reported that claimant had a 45% impairment of the upper extremity based on loss of motion of the wrist and fingers and additionally had severe hypersensitivity problems over his ulnar fingers in his upper extremity. He stated that claimant continued to have reflex sympathetic dystrophy of the right upper extremity as well as considerable scarring on the dorsum of the hand where he had had skin loss. The doctor reported that claimant had an additional 25% LEOHR V. R & A TRUCKING PAGE 7 impairment of the right upper extremity as the result of the reflex sympathetic dystrophy and the extensive scarring. He reported that claimant's permanent impairment of the right upper extremity was 59% when 25% and 45% were combined on the AMA guides' combined values charts. The doctor opined that, while initially he had felt claimant would receive some benefit from straightening, particularly the PIP joint of his ring finger, with claimant's rather extensive pain syndrome he was unlikely even with surgery to gain much additional function of the hand. He recommended that claimant's reflex sympathetic dystrophy be brought under control in order that his fingers be operated upon to position them in such a way that he could use the hand as a helping hand more effectively. The doctor opined it was unlikely that claimant would improve significantly in terms of function with the exception that, if the fingers were brought into a better position, he would have less impairment and there would be some hope of bringing his reflex sympathetic dystrophy under control. He stated: I am not optimistic that it could be brought under very good control, however. The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS Our first concern is whether claimant is entitled to additional medical treatment. Claimant seeks additional medical treatment by way of some sort of medical intervention which would straighten his hand further as well as relieve his constant pain. Section 85.27, unnumbered paragraphs 1 and 4 provide: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. * * * For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an LEOHR V. R & A TRUCKING PAGE 8 emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. Having viewed claimant's hand and its limitations at hearing, and having evidenced claimant's obvious pain on account of his condition, we are sympathetic with claimant's desire for further medical treatment. Unfortunately, we do not believe that claimant has established that such treatment would be of such significant benefit to him as to constitute reasonable and necessary care under our Act. Initially, Drs. Sprague and Blair, an examining and a treating physician, respectively, both of whom are orthopaedic hand specialists, do not believe that claimant would benefit significantly if at all from reconstructive surgery. Each does not believe that further medical treatment is warranted. Additionally, Dr. Blair does not believe that claimant has reflex sympathetic dystrophy. Likewise, the record taken as a whole does not clearly establish the presence of that condition. Dr. Delbridge initially opined that sympathetic blocks to deal with the reflex sympathetic dystrophy which he believed was present would be appropriate. He also advised vigorous physical therapy, use of a TENS unit, and operative intervention. He later opined that, with claimant's rather extensive pain syndrome, claimant was unlikely even with surgery to gain much additional function of the hand, however. Hence, the physician whose opinions are most in keeping with claimant's desire for additional treatment also ultimately offers little hope that additional medical intervention would significantly assist claimant. Furthermore, as Dr. Blair pointed out in his deposition as quoted in the review of the evidence above, the precise nature of the operative intervention proposed was not presented on this record. Without such, one must agree with Dr. Blair that "the recommendation [for surgery] itself [is] most puzzling and it becomes increasingly puzzling .... how that would benefit [claimant]." Therefore, while we sympathize greatly with claimant's plight, we must respectfully decline his request for additional medical treatment as claimant has not established that such treatment is reasonable and necessary treatment and appropriate alternate care under our Act. We reach the question of benefit entitlement. As claimant has not established that he is entitled to additional medical treatment and a running award of healing period benefits., we must initially determine whether claimant has reached maximum medical improvement. Section 85.34(l), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or, (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Company, Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 485 (1984). Claimant has not returned to work and is not medically capable of returning to substantially similar employment. As no further treatment would likely be beneficial to claimant, he has reached maximum medical improvement, however. Dr. Blair has opined that claimant's healing period ended on April 22, 1986. He released claimant for work on June 1, 1986 and assigned a LEOHR V. R & A TRUCKING PAGE 9 permanent partial impairment rating at approximately that time. Claimant was discharged from the University's care on May 6, 1986. Under various scenarios, any of the above events could be taken as demonstrating the point of maximum medical improvement. Each is in close proximity to the others also. We have the doctor's express opinion that the healing period ended on April 22, 1986. We believe that the point of maximum medical improvement is essentially an issue of medical evidence properly within the province of the doctor's expertise. Therefore, we defer to the doctor. Claimant is entitled to healing period benefits from his injury date through April 22, 1986. We next reach the question of the nature and extent of claimant's permanency entitlement. The parties have stipulated that claimant's injury is a scheduled member injury to the right hand. The fighting issue is whether the permanent partial impairment ratings assigned by the doctors and generally derived through use of the AMA Guides to Evaluation of Impairment are appropriate in this case. Claimant argues forcefully that the guides' reliance on loss of range of motion for determination of impairment represents an inappropriate standard for evaluating claimant's actual loss of use or function in his hand. Section 85.34(2)(1) provides that 190 weeks of compensation shall be paid for the loss of a hand. Section 17A.14(5) provides that the agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of evidence. The Iowa Supreme Court has' recognized that the Act was enacted to benefit the employee and the Act should be liberally construed, but there is also a recognition in scheduled injury cases of the legislatures privilege to draw definite lines, which are necessarily arbitrary, to guide the industrial commissioner. The guidelines are not subject to the commissioner's discretion. (Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 13-4). Section 85.34(2)(u), second unnumbered paragraph, provides: If it is determined that an injury has produced a disability less than that specifically described in said schedule, compensation shall be paid during the lesser number of weeks of disability determined, as will not exceed a total amount equal to the same percentage proportion of said scheduled maximum compensation. Dr. Blair has assigned claimant a 58% permanent partial impairment of the right hand. He arrived at that rating through use of the AMA guides considering claimant's loss of range of motion, but not considering claimant's injury's effects on his daily life activities. Dr. Sprague has concurred with that impairment rating. He also considered claimant's loss of range of motion as well as dysesthesia involving the dorsum of the right hand of the long, ring, and little fingers. Dr. Delbridge has given claimant a 45% impairment of the upper extremity based on loss of motion of the wrist and fingers and additionally severe hypersensitivity problems over his ulnar fingers. He gave claimant an additional 25% impairment of the right upper LEOHR V. R & A TRUCKING PAGE 10 extremity as a result of the reflex sympathetic dystrophy and extensive scarring. He reported that, under the combined values charts, that resulted in a 59% right upper extremity impairment. As claimant's injury is agreed to be limited to the hand and the impairments which Dr. Delbridge cites are also to the hand, Dr. Delbridge's rating equates to 65% permanent partial impairment of the right hand. As noted, claimant forcefully argues that the issue is the extent of disability and not simply the extent of impairment. We note, however, that the legislature has, through use of the schedule, equated loss or loss of use with disability in the case of scheduled member losses such as claimant's. Hence, we find no basis for the argument that compensating a scheduled loss through a medically arrived at permanent partial impairment rating is compensation which does not compensate for disability. Claimant further argues that the undersigned should assess claimant's loss as demonstrated at hearing and arrive at an evaluation substantially different from that of the various medical practitioners in that the loss demonstrated at hearing related to claimant's ability to function in daily life activities and in activities which his original employment involved, whereas the impairment ratings as arrived at by the physicians generally concentrated on claimant's demonstratable loss of motion and diagnosed medical conditions and not on his limitations of daily life. Claimant, in essence, asks that we substitute our judgment for that of the physicians assessing claimant's impairment and thereby his disability. We agree that claimant has a substantial loss of use of his hand. We note that Dr. Blair has stated the AMA guides do not account for loss of pinch function related conditions. We do not agree, however, that our subjective, nonmedical judgment would result in a more accurate assessment of claimant's actual loss of use than results under the AMA guides. While, as claimant notes, the AMA guides rely primarily on loss of range of motion in assessing the loss of use to the hand, no showing has been made that the degree of that loss evaluation does not correlate significantly with the degree of loss which might be found by assessing other losses of function such as the pinch, grip and grasping losses which claimant possesses. We will rely upon the doctors' assessments of impairment in assessing claimants loss of use. The doctors' assessments do not differ substantially. Drs. Blair and Sprague report 59% impairment of the hand; Dr. Delbridge, 65% impairment of the hand. Dr. Delbridge takes into account reflex sympathetic dystrophy which he believes is present, but which diagnosis is not altogether established on the record as a whole. Dr. Blair discounts that condition's presence; Dr. Sprague has noted claimant's dysesthesia. Claimant has a great deal of pain and it is proper to take pain into account when assessing impairment. Dr. Delbridge's reference to sympathetic dystrophy could well be an attempt to deal with claimant's pain syndrome. Dr. Blair apparently has not considered pain in arriving at his assessment. We accept the impairment rating of Dr. Delbridge as the most accurate assessment on the record of claimant's loss of use of his hand. Claimant is entitled to permanent partial disability on account of his loss of use of the hand of 65% of the hand. That rating entitles claimant to 123.5 weeks of permanent partial disability benefits at the appropriate rate of $162.40. FINDINGS OF FACT WHEREFORE, IT IS FOUND: LEOHR V. R & A TRUCKING PAGE 11 Claimant was employed as a mechanic's helper with R & A Trucking. Claimant is right-hand dominant. Claimant sustained an injury arising out of and in the course of his employment at R & A Trucking on December 4, 1985 when his right hand became entangled in a dual semi-tractor tire snow chain. Claimant sought treatment with John Moes, M.D.; ________ Ahrenholz, M.D.; Dale G. Phelps, M.D.; and, William F. Blair, M.D. Claimant was examined by Bruce L. Sprague, M.D., and Arnold E. Delbridge, M.D. Dr. Blair is an Associate Professor of Orthopaedic Surgery at the University of Iowa Hospitals and Clinics with a subspecialty of hand surgery. Dr. Sprague is associated with Surgery of the Hand and Upper Extremity. Dr. Delbridge has a practice limited to orthopaedic and hand surgery. Drs. Sprague and Blair do not believe that further surgical LEOHR V. R & A TRUCKING PAGE 12 intervention or further medical treatment would benefit claimant. Dr. Delbridge initially felt that additional surgical intervention and medical treatment would benefit claimant, but subsequently felt that, given claimant's rather extensive pain syndrome, he was unlikely even with surgery to gain additional function of the hand. The record is unclear as to whether claimant has sympathetic dystrophy of the hand. Claimant does have a significant pain experience in the hand. Additional surgery and medical treatment would not significantly benefit claimant and is not reasonable and necessary alternate care for claimant. Claimant has significant loss of his gripping, pushing, pulling, prehension or pinching functions in the hand. The AMA guides do not account for the function of pinch, grip, hook, and push in determining impairment. The AMA guides primarily assess range of motion in determining impairments. Losses of such functions do not necessarily not correlate at least reasonably well with losses of range of motion. Dr. Delbridge's impairment rating took into account claimant's purported sympathetic dystrophy whereas Dr. Blair's impairment rating did not. Claimant's purported sympathetic dystrophy could well be an attempt to account for claimant's significant pain in the hand. Claimant has a loss of use of the right hand of 65%. Claimant has not returned to work and is not medically capable of returning to substantially similar employment. Claimant achieved maximum medical healing on April 22, 1986. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established that he is entitled to additional medical care as recommended by Dr. Delbridge as reasonable and necessary medical care. Claimant has established that he is entitled to healing period benefits from his injury date through April 22, 1986. Claimant has established that he is entitled to permanent partial disability benefits of 65% of the right hand. ORDER THEREFORE, IT IS ORDERED: LEOHR V. R & A TRUCKING PAGE 13 Defendants pay claimant permanent partial disability benefits for an additional one hundred twenty-three point five (123.5) weeks at the rate of one hundred sixty-two and 40/100 dollars ($162.40) with those payments to commence on April 23, 1986. Defendants pay claimant healing period benefits at the rate of one hundred sixty-two and 40/100 dollars ($162.40) from December 4, 1985 through April 22, 1986. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30. Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendants file Claim Activity Reports as required by the agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of October, 1988. HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert D. Fulton Attorney at Law 616 Lafayette Street P.O. Box 2634 Waterloo, Iowa 50704-2634 Mr. Scott E. McLeod Attorney at Law 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406 1803, 2500, 2700 Filed October 26, 1988 HELENJEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER HAROLD C. LEOHR, JR., Claimant, vs. File No. 812964 R & A TRUCKING, A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS COMPANY, Insurance Carrier, Defendants. 1803, 2500, 2700 Claimant denied request for additional surgery where surgery not shown to likely produce significant improvement in function of injured hand. Claimant awarded permanent partial disability of 65% of the right hand. Ratings of physicians utilized even though based on AMA guides which largely evaluate loss of range of motion and which do not generally evaluate other losses of hand function. 5-1402.40 Filed November 5, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : MARK C. GOODE, : : Claimant, : : vs. : File Nos. 798415 : 813084 GEO. A. HORMEL & CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.40 Claimant failed to prove shoulder injuries caused permanent impairment.