Page 1 before the iowa industrial commissioner ____________________________________________________________ : MICHAEL A. CARNES, : : Claimant, : : vs. : : File No. 821400 IOWA DEPARTMENT OF : TRANSPORTATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Michael A. Carnes, (claimant) commenced with the filing of a petition on December 28, 1988 against the Department of Transportation for the State of Iowa (DOT), employer and the State of Iowa (State), (collectively defendants) DOT's insurer for worker's compensation benefits as a result of an alleged injury to claimant's back occurring on July 19, 1988. On January 3, 1991, the matter came on for hearing in Council Bluffs, Iowa. The parties appeared as follows: the claimant in person and by his counsel Robert Rodenburg of Council Bluffs, Iowa and DOT and the State by their counsel, Assistant Attorney General Mark Hunacek. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Wayne Wilson, and Deborah Carnes. 2. Claimant's exhibits 1-6 and defendants' exhibits A-D. preliminary matters Before the hearing commenced, claimant amended his injury date to July 19, 1988. DOT had no objection and the amendment was approved. Page 2 stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the rate of compensation, in the event of an award, is $246.34 per week.(1) Claimant is married and has two children and is entitled to four exemptions. The fees charged for medical services are fair and reasonable and the expenses were incurred for reasonable and necessary medical treatment. That defendants make no claim for employee nonoccupational group health plan benefits paid prior to hearing. That defendants have paid some weeks of workers' compensation benefits to claimant at the rate of $246.34 per week prior to hearing. Claimant was paid $7,404.05 in long term disability benefits. The parties agree that the defendants are entitled to a credit for the long term disability payments received by claimant and the workers' compensation benefits received by claimant between the injury date and the date claimant returned to light duty. That there are no bifurcated claims. The amount of the costs have been stipulated by the parties. The parties agree that Exhibit 6, a letter from Rodenburg to Brott, is a request for an extension of a 90 day leave of absence that is unaccompanied by a doctor's statement. The parties agree that the DOT never received a doctor's statement releasing claimant back to work. Issues The issues for resolution are as follows: 1. Whether claimant sustained an injury on July 19, 1988, which arose out of and in the course of his employment with DOT. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed industrial disability and the extent of benefits if any. 3. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work (1). According to the Guide to Iowa Workers' Compensation Claim Handling, July 1, 1988, this rate contemplates a gross weekly wage of $375.00 per week. See, Division of Industrial Services, Guide to Iowa Workers' Compensation Claim Handling, p. 37 (July 1, 1988). This rate is consistent with an injury date of July 20, 1988. Page 3 injury and the causal connection of this condition to a work injury. 4. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13 (1991). facts After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. Claimant is 39 years old. He is a high school graduate. He entered the armed forces after high school. He received a medical discharge. He was discharged because of injuries he had received in a automobile accident when he was 18. Claimant has no other post high school training except on the job training. Claimant resides on a 40 acre farm near Pacific Junction, Iowa. On this farm, he maintains a limited livestock operation involving cattle and hogs. 2. Claimant's work history indicates that he has done medium to heavy manual labor most of his life. He has worked primarily for DOT. He began working for DOT in 1972. He was trained through DOT as an Equipment Operator I. Claimant can also operate a motor grader and a heavy or light duty truck. Claimant has also assisted with some mechanical work in the shop for maintenance and repair of equipment. Claimant is licensed to apply chemicals commercially for the State of Iowa and individually for agricultural purposes. Additionally, claimant is a self employed livestock producer and farmer. In connection with his livestock operation and farm work, claimant raises cattle and hogs, bales hay, operates farming equipment and assists his father with his farming operation. Claimant was also self employed as a bulldozer operator and drove a truck for Vinton Equipment Company. 3. As an Equipment Operator I, claimant performed heavy work in all weather. The work consisted of operating trucks, tractors, and other equipment with manual transmissions, pavement breakers, a 90 pound jack hammer, air tampers, a hand mower, hand scythes, and other equipment required to maintain highways, culverts, ditches, and the terrain surrounding the roadways and areas within the purview of DOT's administration. Claimant also operated snow removal equipment for long periods of time under adverse weather conditions. Claimant's job also required him to lift at least 50 pounds at one time and lift and carry 100 pounds on occasion. On July 19, 1988, claimant was being paid at pay grade 18. This grade is equal to approximately $17,000. 4. Claimant has a significant work injury history during his employment with DOT. The following chart shows the approximate dates and types of injuries claimant has experienced. Date Injured What Time Off Returned Page 4 to DOT 1974 Hand 3 months Yes 1976 Hand some yes 1980 Broke ribs 2 months yes 1982 Broke R.Hd 3 months yes 1986 Low back 6 months yes 1988 Back since injury yes and no The injury to claimant's hand in 1982 is the only injury that claimant did not suffer while at work. He broke his little finger when it caught in a machine at a bowling alley. Claimant's other health problems include a prolapsed valve in his heart and susceptibility to upper respiratory infections. 5. The injuries of significance to the dispute in this case occurred on April 14, 1986 and July 20, 1988. On April 14, 1986, claimant was helping another employee put an end gate spreader on a heavy duty truck. He was carrying it across the floor and he slipped and hurt his lower back. At the time of the accident he felt a twinge in his back. When he fell, claimant's back twisted. Eventually, claimant saw Dr. Schima, a neurosurgeon, for this first injury. Dr. Schima reviewed results of a myelogram study and a MRI study. He determined that claimant had a bulge in one of the discs in his lower back, but no definite disc problem. He also indicated that claimant had pain in the lumbar region. Dr. Schima's diagnosis was lumbosacral strain. Dr. Schima also commented: The story is brief and begins in mid April with the abrupt onset of pain in the lumbar area during strenuous exertion with persistent difficulties until the present time despite a prolonged trial of conservative therapy which has included physical therapy, bed rest and analgesics. The patient can't work at his present job since driving aggravates his discomfort. 6. Claimant was released to return to work after six months of inactivity by a letter from Dr. Schima to DOT on September 17, 1986. Claimant received workers compensation benefits for this injury. During this period, claimant saw Dr. Schima regularly. With each visit, claimant reported pain in his lower back. 7. After claimant was released to return to work in 1986 claimant continued to have back pain. During the next two years, claimant saw Dr. Schima on several occasions. He complained of intermittent back pain aggravated by lifting and other work activities. During this time period, Dr. Schima treated claimant conservatively, recommending exercises, a back support and pain medication. 8. As a result of an examination performed June 8, 1988, Dr. Schima concluded that claimant will continue to experience intermittent discomfort that may be aggravated by the strenuous exertion sometimes required by claimant's job. Page 5 Dr. Schima found that claimant had a 5 percent functional impairment from the injury to his back suffered on April 14, 1986. Dr. Schima gave this rating on July 20, 1988, prior to the time he examined claimant for the injury to his back suffered on July 20, 1988. 9. On July 20, 1988, claimant testified that he was working on a pavement blow out on Highway 34 with a jackhammer. He pulled straight back on the jackhammer and as the concrete gave way he fell. He landed on his buttocks on the concrete. Claimant had a dull aching pain in his lower back after the fall. Claimant finished his shift and later in the day experienced severe pain in his lower back. Claimant saw Dr. Schima on July 21, 1988 but did not describe this incident. Rather, claimant told Dr. Schima that he always had back pain and that the pain had increased during the last 7 days. It was present in the morning, less noticeable in the day and increased in the evening. Claimant also told Dr. Schima that his pain increased with lifting, shoveling, and standing all day flagging traffic. Since Monday, July 18, 1988, claimant had been running an air hammer. Dr. Schima gave this description of the incident at his deposition, in his hand written notes and in correspondence with DOT. This version shall be treated as the more credible report of claimant's continuing back problems and flare-up diagnosed on July 21, 1988. Additionally, even though claimant has alleged an injury date of July 19, 1988, Dr. Schima's records support an injury date of July 20, 1988 since this is the last day claimant was able to work. 10. After examining claimant, Dr. Schima indicated on July 21, 1988, that claimant was suffering from acute lumbosacral strain and chronic lumbosacral strain. He further indicated that claimant's back problem began in April of 1986 with the onset of low back pain following strenuous exertion with recurrent symptoms since then and a recent flare-up beginning on approximately July 16, 1988. Dr. Schima concluded that the symptoms were primarily muscular in origin. Claimant stayed off work until August 29, 1988 when claimant returned to light duty at full pay with DOT for 20 days in accordance with Iowa Department of Personnel rules. See, rule 581 IAC 10.3(6). When claimant returned to light duty, he was restricted to standing no more than one hour at a time and he could not lift more than 25 pounds. 11. From the day Dr. Schima took claimant off work until the time he returned to light duty, claimant received worker's compensation benefits totaling 5 and 4/7 weeks. (July 21, 1988 to August 29, 1988 equals 39 days). Defendants were asked to supply a payment record for purposes of calculating a credit. The only payment record that was supplied in defendants' brief was for the period between April 16, 1986 and September 26, 1986.(2) The total amount of benefits paid for the April 14, 1986 injury equals $10,503.41. 12. On September 22, 1988, Dr. Schima indicated to George Heaberlin, resident DOT engineer, that after he (2). Claimant's compensation payment record is as follows: DATE AMOUNT COMPENSATION MEDICAL 5-2-86 $499.46 5-16-86 $411.32 5-30-86 $411.32 6-13-86 $411.32 6-12-86 $200.00 6-30-86 $411.32 6-27-86 $2,760.55 6-26-86 $300.00 7-14-86 $411.32 7-25-86 $411.32 7-23-86 $94.00 7-23-86 $114.00 8-8-86 $411.32 8-7-86 $825.00 8-7-86 $559.35 8-22-86 $411.32 8-25-86 $51.39 8-25-86 $200.00 8-22-86 $411.32 9-5-86 $411.32 9-10-86 $60.00 9-15-86 $411.32 9-16-86 $192.00 9-16-86 $35.00 10-3-86 $88.14 TOTAL: $5,112.12 $5,391.29 TOTAL MEDICAL/COMP: $10,503.41 Page 6 reviewed claimant's job description, he did not think that claimant could return to his duties as an Equipment Operator I. Dr. Schima felt that claimant could not load materials, dig post holes, drive steel posts, unroll fencing material, compact material or use an air hammer. Additionally, claimant could not lift weights in excess of 50 pounds. Dr. Schima did not indicate the cause of claimant's current injury in this letter. 13. Claimant's light duty status ended on September 28, 1988. DOT did not extend the light duty period. Claimant was not released by Dr. Schima to return to his regular job duties. Claimant was off work with the DOT at that point. Additionally, DOT suspended claimant's workers' compensation benefits after claimant completed his light duty assignment with DOT. There was no explanation for the suspension of benefits. Nor is there any evidence in the record indicating that claimant received a notice terminating his benefits in accordance with Iowa Code Section 85.13 (1991) and Auxier v. Woodward State Hospital, 226 N.W.2d 139, 142-43 (Iowa 1978) At the time claimant left DOT, he used up his remaining sick leave and vacation days. This equaled 10 days. Long term disability payments began in February 1989. 14. On July 19, 1988 claimant was advised that he had not been selected for the job of Equipment Operator II. This was the second time claimant had applied for this job and had not been selected. Claimant subsequently filed a disability discrimination lawsuit against DOT for not selecting him for the job. 15. Between September 1988 and February 1989, claimant worked for Vinton Equipment Co. for a short time painting combines with a paint sprayer. Claimant also assisted a neighbor with planting in the spring of 1990. Claimant was paid for his work with Vinton Equipment Co. and he received Page 7 payment in kind from his neighbor. 16. During the fall of 1988, claimant saw Dr. Schima and Dr. McKinney for evaluation and continued treatment of pain. Dr. McKinney suggested that claimant participate in a work hardening program to control his pain. Dr. Schima agreed that a work hardening program was in order to strengthen claimant's back and to determine whether the pain could be alleviated. DOT refused to pay for the work hardening so this course of therapy was not pursued. 17. In order to return to work, DOT had asked claimant to obtain a release from his doctor after claimant was released from light duty service. However, Dr. Schima would not release claimant to return to his job as an Equipment Operator I. In December of 1988, claimant made application for unpaid medical leave from DOT. According to Iowa Department of Personnel rules, a state employee can be granted up to one year of unpaid medical leave. The leave is awarded in increments of 90 days. In order for the leave to continue, the employee must request leave every 90 days and the request must be supported with a doctor's statement each time leave is requested. Claimant and his attorney were aware of this policy as early as December 28, 1988 when claimant requested leave for the first time. Dr. Schima had seen a copy of claimant's job duties in September of 1988 and was aware of claimant's job duties when he wrote to the Principal Financial Group in February of 1989. This letter was written to support claimant's request for long term disability. 18. On March 30, 1989 DOT wrote to claimant's counsel advising of the need to obtain additional leave and that the request must be supported by a doctor's statement. DOT extended claimant's time to request leave for the second calendar quarter of 1989 to the close of business on April 5, 1989. Apparently, there was a telephone conversation between DOT representative, Suszanne Brott and claimant's counsel regarding the request for leave and the doctor's statement. Claimant was given additional time to complete the requirements for requesting leave for the second quarter of 1989. Claimant and his counsel were also reminded by letter on April 17, 1989, that claimant would have to request leave supported by a doctor's statement for the third quarter before June 29, 1989. DOT also warned claimant that if he failed to request leave for the third quarter and provide a doctor's statement for the second quarter leave, he would be terminated effective June 29, 1989. On May 11, 1989, Dr. Schima wrote Ms. Brott and advised her that claimant would not be capable of returning to work by May 2, 1989. This letter fulfilled the requirements for the leave requested for the second quarter. However, Claimant failed to request third quarter leave. DOT terminated claimant for failure to adhere to the rules regarding unpaid medical leave. Claimant was not terminated because he was unable to perform the physical demands of his position. The termination was effective June 29, 1989. Page 8 Claimant was notified by mail of his termination on August 3, 1989. 19. In the meantime, claimant continued to see Dr. Schima. Claimant's back pain had not abated as he continued to have daily low back pain. In May of 1989, Dr. Schima tried a new treatment program for claimant when he prescribed a TENS unit. Claimant began wearing the device and noticed an improvement in his pain. He indicated on June 28, 1989 that he was now able to look after his livestock. Claimant also was walking about one half mile per day. By the fall of 1989, claimant was able to go two days per week without the TENS unit and was able to walk about a mile per day. 20. In February 1990, claimant reported new pain in his testicles. His back pain remained the same. However, in order to eliminate claimant's back problem as the source of the difficulty with the pain in his testicles, a CT scan of his spine was ordered by Dr. Schima. The CT scan showed mild degenerative changes in claimant's spine but was otherwise normal. There was no linkage made between claimant's back pain and testicle pain. 21. On June 5, 1990, Dr. Schima again indicated that claimant has chronic permanent pain in his back. The TENS unit has helped the pain. The permanent nature of the pain was caused by the work injury on April 14, 1986. Dr. Schima also reaffirmed his opinion that claimant has been functionally impaired to the extent of 5 percent due to the injury suffered on April 14, 1986 and not the exacerbation in July of 1988. Dr. Schima indicated that claimant's condition will not change and the condition has remained stable since August of 1988. 22. After claimant was terminated, DOT representative, Wayne Wilson made contact with claimant regarding job possibilities with DOT within claimant's restrictions. There is a dispute regarding the timeliness of the DOT contacts with claimant. The evidence is clear however, that DOT did contact claimant after he had been terminated regarding employment with DOT. Wilson explained to claimant how he might obtain employment with DOT and be placed on a preferential hiring list. Wilson indicated that he would send the application to claimant if claimant wanted to be rehired by DOT. Regardless of the timing of DOT's contacts with claimant, claimant never requested the application for the preferential hiring list or to request employment with DOT. Claimant was familiar with the forms used by DOT to make application for other jobs and for transfers. Claimant qualified for the position of Engineering Aide I at the time of the hearing. Additionally, claimant remains eligible for the preferential hiring list. 23. Since his injury, claimant has made only the slightest effort to seek reemployment within his medical restrictions. Claimant, even though he had been terminated by DOT, apparently believed that there was nothing different in his terminated employment status with DOT and the Page 9 previous occasions he had returned to work after an injury. Claimant clung to the belief that he could still do his old job, even though he admitted that he could only do 40 percent of the tasks required by his position. 24. Even though claimant is unable to perform his job as an Equipment Operator I, claimant is capable of working in the competitive labor market. He worked for Vinton Equipment after he was released from light duty with DOT. Additionally, claimant can farm. At a minimum, he can take care of livestock and operate farming equipment. As a licensed chemical applicator, claimant can perform this type of light work within his medical restrictions. 25. The only evidence of wage differentials included in the record was the testimony of Wayne Wilson and the report prepared by Steve Kuhn. Claimant was making about $17,000 at the time of his injury. The jobs available within claimant's restrictions included Engineer Aide I with DOT, chemical applicator, exterminator, telemarketer, auto and farm equipment parts sales, and assembler. The wage range for these positions is approximately $14,500. If claimant obtained reemployment with DOT he would suffer about a 15 percent wage decrease. His new wage would be approximately $14,450. 26. Claimant's pain symptoms are inconsistent with the objective findings made by the physical therapist who evaluated claimant. Claimant gave a poor effort during this evaluation and his reactions to pain suggested that he is a symptom magnifier. The inconsistencies are also not physiological but relate to a psychological overlay which may be contributing to his condition. For example, claimant resisted any range of motion for his spine beyond 90 degrees and reported pain. However, he was able to bend forward beyond the 90 degree plane to tie his shoe with no difficulty. This evaluation was completed in 1989 and stands uncontroverted in the record. 27. The claimant has submitted the following medical bills for reimbursement in this dispute: DATE MEDICAL PROVIDER AMOUNT 2-6-90 Bergan Mercy $507.00 5-9-90 Bergan Mercy $14.60 11-23-88 Midwest Rehab $57.00 3-7-88 to LaRue Drug Co. $274.77 5-12-90 6-10-89 to Koley's Home Care $1,179.66 8-18-90 TOTAL: $2,033.03 28. Claimant made a reference to 13 trips to Dr. Schima's office from May 1989 to the date of the hearing. The round trip is 70 miles. Claimant provided no dates as to when these trips were made. However, the total mileage equals 910 miles. CONCLUSIONS OF LAW Page 10 1. Whether claimant sustained an injury on July 20, 1988 which arose out of and in the course of his employment with DOT. At the outset, it should be noted that claimant abandoned the first injury date of April 14, 1986 when the hearing began. Claimant, for the purposes of the dispute heard on January 3, 1991, adopted July 19, 1988 as the injury in issue. The injury of April 14, 1986 and the injury of July 19, 1988 are not the same injury. If claimant seeks compensation for the first injury, a separate contested case proceeding must be commenced. See rule 343 IAC 4.6. The issues raised by the injury of April 14, 1986 will not be considered in this decision. See also, Newcomb v. Ruan Leasing, File No. 877383, Slip op. at 5 (Iowa Ind. Comm'r Arbitration August 16, 1990). Claimant urges that the work injury that is in dispute arose out of and in the course of employment on July 19, 1988. He supports this argument with the records of Dr. Schima that are contemporaneous with the injury. Defendants urge that claimant did not injure his back on July 19, 1988. He was motivated to report an injury because he had been passed over a second time for a promotion. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 19, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The injury must both arise out of and be in the course of the employment to bring a case within the statute. Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). See also Sister Mary Benedict v. St. Mary's Corp., 124 N.W.2d 548, 551 (Iowa 1963); Hansen v. State of Iowa, 91 N.W.2d 555, 557 (Iowa 1958). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe, 68 N.W.2d at 65. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130; Crowe, 68 N.W.2d at 65. However, 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, 76 N.W.2d 756, 760-61 (Iowa 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., 115 N.W.2d 812, 815 (Iowa 1962). In this instance, claimant suffered an aggravation of a preexisting chronic lumbosacral strain around July 20, 1988. The injury may have occurred during the week preceding July Page 11 20, 1988. The evidence does not support claimant's version of a specific event that caused claimant's aggravation of his lower back. Rather, claimant reported that he had experienced increasing pain for the seven days preceding his examination by Dr. Schima on July 21, 1988. Claimant indicated that the only activities that he had been engaged in were work related activities and there is no evidence to the contrary. Claimant reported that he had been operating an air hammer on Monday March 18, 1988. He had been shoveling, and standing and flagging cars. Since claimant could no longer work after July 20, 1988, July 20, 1988 is held to be the injury date. An injury that arose out of and in the course of claimant's employment occurred on that day. Nor is claimant's motivation suspect. Even though claimant was passed over for the Equipment Operator II position on July 19, 1988, Dr. Schima found positive evidence of a flare-up when he examined claimant on July 21, 1988. Consequently, claimant has satisfied his burden of proof and demonstrated that he suffered a work related injury on or about July 20, 1988 that aggravated a preexisting chronic lumbosacral strain and caused him to be off work as a result of the aggravation. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed industrial disability and the extent of benefits if any. Even though claimant has been successful in establishing a work related aggravation of a preexisting condition, claimant next has the burden of proving by a preponderance of the evidence that the injury of July 20, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. Finally, when an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment caused Page 12 by the aggravation. Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 (Iowa 1960); Barz v. Oler, 133 N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service Stores, 125 N.W.2d 251, 256 (Iowa 1963); Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 1961); Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). The Supreme Court has also indicated that in order for an aggravation of a preexisting condition to be compensable, the aggravation should be material. Yeager, 112 N.W.2d at 302. In this instance, the claimant has failed to show that the aggravation of July 20, 1988 caused a permanent disability. The claimant has established that the aggravation caused a temporary total disability for which he is entitled to compensation. Since claimant has not established entitlement to permanent benefits the question of whether claimant qualifies as an odd-lot employee is moot. The evidence on the issue of permanency is uncontroverted. Dr. Schima stated in his deposition and in correspondence that the injury in April of 1986 caused claimant's pain and the accompanying limitations. These limitations have functionally impaired claimant to the extent of five per cent (5%) of the body as a whole. Even though claimant still has intermittent pain, according to Dr. Schima, the cause of this pain is the injury in 1986 and not the aggravation in 1988. Dr. Schima indicated that as far as claimant's pain was concerned, his disability was the same and his pain symptoms have simply responded to a different treatment modality. The basic pathology and physiology of claimant's condition has not changed since 1986. Nor does the authority cited by the claimant compel a different result. In Franks v. City of Council Bluffs, No. 784334, Slip op. at 5 (Iowa Ind. Comm'r Arb. December 18, 1989), there was a direct causal link between the claimant's injury and his permanent disability. Moreover, after four evaluations, the City of Council Bluffs specifically terminated claimant for health reasons. In this case, Dr. Schima, the only medical expert relied upon by both claimant and the defendants indicated that claimant's disability was caused by the April 14, 1986 injury rather than the injury of July 20, 1988. Moreover, the termination of claimant's employment with DOT occurred after claimant failed to comply with a procedure for unpaid leave rather than claimant's inability to perform his job duties. Regarding temporary disability benefits, Iowa Code sections 85.32 and 85.33 (1989) provide that an injured worker is entitled to such temporary disability benefits from the date of injury until claimant returns to work or until claimant is medically capable of returning to substantially similar work the claimant was performing at the time of the injury, whichever occurs first. Clute v. Countryside Retirement Home, File No. 876351, Slip op. at 6 Page 13 (Iowa Ind. Comm'r Arbitration November 29, 1990); Millar v. Iowa Realty, (Valley West Inn), File No. 900518, Slip op. at 8 (Iowa Ind. Comm'r Arbitration March 27, 1990). Temporary disability benefits will also end if claimant begins working at a different job. Clute, File No. 876351, at 6. However, maximum medical improvement, one of the tests for ending a healing period, is not a test for determining the end of temporary total disability. Blanchard v. Omaha Cold Storage, File No. 931382, Slip op. at 9 (Iowa Ind. Comm'r Arbitration February 26, 1991); Clute, File No. 876351, at 6. If claimant had only briefly returned to work or only had occasional employment during the recovery period, such work would not affect his temporary total disability benefits. Millar, File No. 900518, at 8. In this case, claimant was medically capable of returning to work in June of 1989 when he resumed his duties with his livestock operation. There is no evidence that claimant could work until this date. While claimant had occasional employment during the period of recovery, it was not long enough or substantial enough to suggest that his temporary total disability period had ended. Claimant worked briefly for DOT on light duty. (20 days). He worked briefly for Vinton Equipment to paint a combine. He assisted a neighbor with the 1990 planting. In return, the neighbor helped claimant put in his crops. Claimant reported to Dr. Schima that he had returned to his duties as a self employed livestock operator on June 28, 1989. Since claimant returned to work at another job on this date, it is at this point that his temporary benefits came to an end. Claimant is therefore entitled to 49.14 weeks of temporary total disability benefits at the stipulated rate. DOT is entitled to a credit for amounts paid to claimant in connection with this injury. However, the credit in the amount of $10,503.41 claimed by DOT will not be allowed against the amount awarded here. DOT submitted payment records for an injury not in dispute in this matter. DOT is not allowed to take a credit against future weekly benefits. Van v. Clarinda Correctional Treatment Complex, File Nos. 832067, 841123, Slip op. at 15 (Iowa Ind. Comm'r Arb. February 28,1990); See also, Rule 343 IAC 8.4. 3. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. Claimant has the burden of demonstrating that the medical services obtained were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). In this instance, the claimant has shown that he aggravated a preexisting condition while at work. As a consequence, the necessary nexus has been established and DOT must provide medical benefits to the claimant. DOT has put into issue whether the expenses incurred by the claimant were reasonable and necessary for the medical Page 14 treatment required by claimant's aggravated back condition. A review of the expenses described in paragraph 28 demonstrates that all the medical services rendered to claimant through June 28, 1989 were reasonable and necessary to resolve the symptoms of pain claimant was experiencing. Moreover, the medical costs associated with the rental, maintenance and eventual purchase of the TENS unit are certainly reasonable and necessary and directly related to the claimant's aggravation of his back problem. Consequently, DOT must pay for these expenses and the future expenses associated with the maintenance of the TENS unit and its use. Likewise, DOT is responsible for claimant's pain medication associated with his aggravated back condition. DOT is not responsible for the cost of the charges incurred at Bergan Mercy in February of 1990. These costs were attributable to an investigation made to determine the cause of pain in claimant's testicles. There is no evidence that the pain or the subsequent tests were related to the exacerbation of claimant's back condition suffered in July of 1988. Nor is DOT responsible for the mileage requested by the claimant. While mileage was not identified as a separate expense item in the material submitted by the claimant with the prehearing report, there was testimony from the claimant that indicated that he made 13 trips to Dr. Schima's office after May of 1989. However, claimant made no effort to show when these trips were made, whether the trips corresponded with a doctor visit and whether the trips were made in connection with the first injury of April 14, 1986 or the second injury of 1988. In this regard, claimant has failed in his burden and mileage expenses will not be awarded. The final issue in connection with claimant's entitlement to medical benefits is whether DOT authorized claimant to obtain the treatment form Dr. Schima. Under Iowa Code section 85.27 (1989) an employer has the responsibility to provide an injured worker with reasonable medical care and has the right to select the care the worker will receive. In order for the employer to be held responsible for claimant's medical expenses, claimant must show that the treatment sought was either of an emergency nature or was authorized. Templeton v. Little Giant Crane & Shovel, 1 State of Iowa Industrial Commissioner Decisions No. 3, 702, 704 (Iowa Ind. Comm'r Appeal 1985). An employee may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion. 2 Larson's Workmen's Compensation Section 61.12(g) (1990). If the treatment is unauthorized a claimant may still recover if the treatment improves the claimant's condition and ultimately mitigates defendants' liability. Thomas v. Broadlawns Medical Center, File No. 81240, Slip op. at pp. 6-8 (Iowa Ind. Comm'r October 31, 1990); Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 Page 15 (1983); Rittgers v. United Parcel Service, III Iowa Industrial Commissioner Report 210 (1982). While claimant did not obtain direct authorization to see Dr. Schima for his back injury, he could reasonably imply that DOT had given him approval to see Dr. Schima when he advised DOT that he needed to see a doctor after the aggravation to his back occurred. DOT could have directed claimant to a doctor of its choice at that point and did not do so. Even if the treatment was unauthorized, Dr. Schima was able to control claimant's symptoms with the TENS unit enough so that claimant could resume his duties as a livestock operator. This treatment mitigated DOT's liability. As a result, DOT must pay for these medical services. 4. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13 (1991). The final issue for resolution involves the question of whether claimant is entitled to penalty benefits under Iowa Code section 86.13 (1991) since DOT terminated claimant's benefits in October of 1988. Iowa Code section 86.13 provides in relevant part: If commenced, the payments shall be terminated only when the employee has returned to work or upon thirty days' notice stating the reason for the termination and advising the employee of the right to file a claim with the industrial commissioner. * * * If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapters 85, 85A or 85B up to fifty per cent of the amount of benefits that were unreasonably delayed or denied. Under Section 86.13, a penalty is not awarded for nonpayment of medical expenses. Penalty benefits are only applicable to weekly compensation benefits. Zahn v. Iowa State Men's Reformatory, IV Iowa Industrial Commissioner Report 409, 410 (1983) If it is alleged that an employer wrongfully withholds weekly compensation benefits from a claimant, or an employer wrongfully terminates weekly compensation benefits, claimant must establish the benefits were withheld unreasonably or terminated unreasonably in order for the claimant to receive additional benefits under section 86.13. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88, 93 (1984). It is reasonable for an employer to withhold benefits when the employer was not alerted to occurrences which would notify a reasonable person that benefits would be due or when there was no work time lost. McCormack v. Sunsprout, I Iowa Industrial Commissioner Decisions No. 1, 142, 144 (1984). However, if there are no contradictions in the claimant's claim then a penalty will be assessed. Willis v. Ruan Page 16 Transport Corporation, IV Iowa Industrial Commissioner 395, 396 (1984) (The doctors' reports and the claimant's statements regarding the injury and its connection to an incident at work are consistent. Withholding benefits in this instance was found to be unreasonable and a penalty was assessed to the healing period benefits. Employer was given the benefit of the doubt as to whether the injury caused a permanent impairment due to claimant's preexisting back complaints); Peterman v. American Freight System, File No. 747931 Slip Op. at 3-4 (Iowa Industrial Comm'r Arbitration August 10, 1988). Additionally, failure to give notice of the termination of benefits is a violation of the due process rights of the claimant and results in a penalty. Auxier, 266 N.W.2d at 142-43. The record is silent as to whether the notice requirements of Auxier were met in this case. Since claimant has the burden of proof and failed to indicate that he did not receive an Auxier notice, then it would be pure speculation on this writer's part to guess as whether DOT complied with the provisions of the Code and case law. See, Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 737-38 (Iowa 1955) (The findings of the commissioner must be based on testimony that tends to establish facts or upon proper inferences that may be drawn therefrom. The findings cannot be predicated upon conjecture, speculation or mere surmise). An award of penalty benefits cannot be made on these grounds. It appears from the record that DOT may have concluded that claimant had returned to work and this is the ground that DOT relied upon to withhold benefits. However, this conclusion is not readily apparent from the record as there is no testimony on this point. DOT never did explain why claimant was terminated. There was evidence that claimant performed light duty work, the painting work at Vinton Equipment and spring planting in 1990. However, the necessary link between the suspension of benefits and these work episodes was not made. Most particularly, return to light duty work is not a return to work where the claimant is limited to one 20 day period of duty and then released. Claimant had no choice but to leave his light duty employment when DOT indicated it would not extend light duty status for him. Nor did claimant return to work when he painted one or two combines. Given the limited nature of claimant's involvement in these jobs, and the irrelevance of the 1990 spring planting work to the time claimant's benefits were terminated, each of these instances, even when taken together, were not sufficient for DOT to reasonably conclude that claimant's temporary disability period had ended. See generally, Millar, File No. 900518, at 8. (Occasional employment does not disqualify a worker from benefits). Claimant has shown that he had a continuing total temporary disability after he was released from light duty by DOT. Dr. Schima confirmed that claimant could not do his job given his then existing condition. DOT was clearly Page 17 aware that claimant's aggravated back condition prevented him from performing a job substantially similar to the work he performed as an equipment operator or a farmer. When DOT did not extend the light duty work period for claimant, it knew that claimant was unable to work as a result of his aggravated back condition. Benefits should have been reinstituted at that point. Claimant established that DOT wrongfully withheld weekly compensation. Claimant has shown that DOT had no basis for withholding weekly compensation benefits. A penalty in the amount of 35 percent of the temporary total disability awarded herein is therefore awarded to claimant. ORDER THEREFORE, it is ordered that: 1. Defendants, the Iowa Department of Transportation and the State of Iowa, shall pay to claimant temporary total disability for the period of time between July 19, 1988 until June 29, 1989 at the stipulated rate of two hundred forty-six and 34/100 dollars ($246.34). Since these benefits have accrued they shall be paid in a lump sum with interest at the statutory rate from the date of this decision. 2. Defendants, the Iowa Department of Transportation, shall pay the following medical expenses: DATE MEDICAL PROVIDER AMOUNT 11-23-88 Midwest Rehab $57.00 3-7-88 to LaRue Drug Co. $274.77 5-12-90 6-10-89 to Koley's Home Care $1,179.66 8-18-90 TOTAL: $1,511.43 3. Defendants, Department of Transportation and the State of Iowa, shall be liable for all future medical costs associated with claimant's TENS unit including maintenance, repair and replacement as required until there is no medical reason that requires claimant to use the TENS unit. Additionally, Department of Transportation and the State of Iowa shall pay for all accessories required for use of the TENS unit including but not limited to the patches and the leads that attach to claimant's skin and the TENS unit. 4. Defendants, Department of Transportation and the State of Iowa, are assessed a penalty in the amount of thirty-five percent (35%) of the temporary total disability benefits awarded in this dispute for suspending claimant's benefit payments for no reason apparent in the record made in this proceeding. 5. Defendants, Department of Transportation and the State of Iowa, shall have a credit for all amount paid to claimant in connection with the exacerbation of his preexisting back problem on July 19, 1988. This credit Page 18 shall include any amounts paid for long term disability benefits and for any weekly benefits paid to claimant. Department of Transportation and the State of Iowa shall not have a credit for amounts paid in connection with the injury suffered by claimant on April 14, 1986. 6. Defendants, Department of Transportation and the State of Iowa, shall file a claim activity report in connection with payments made pursuant to this order and rule IAC 3.1(2). Signed and filed this ____ day of April, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Page 19 Copies To: Mr Robert V Rodenburg Attorney at Law 500 Willow Avenue 100 Park Building Council Bluffs Iowa 51503 Mr Mark Hunacek Assistant Attorney General General Counsel Division Iowa Department of Transportation 800 Lincoln Way Ames Iowa 50010 5-1402.40; 5-1801; 5-2500; 4000 Filed April 23, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : MICHAEL A. CARNES, : : Claimant, : : vs. : : File No. 821400 IOWA DEPARTMENT OF : TRANSPORTATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1402.40, 5-1801 Claimant exacerbated a preexisting back condition. Physician clearly indicated that the original injury was the cause of claimant's impairment rather than the exacerbation episode. Claimant did not prove permanancy but was temporarily disabled. Temporary disability ended when he returned to his livestock operation. 5--2500 Employer was responsible for paying for TENS unit. Additionally, employer responsible for future cost of TENS unit. 4000 Light duty work in accordance with the Iowa Department of Personnel rules where the claimant is limited to a single period of light duty for 20 days does not constitute a return to work that allows for the termination of compensation benefits. Penalty benefits were awarded. Page 1 2203 3001 3002 51803 Filed March 13, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : MARY MARTIN, : : Claimant, : : vs. : : File No. 821570 UNIVERSITY OF NORTHERN IOWA, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2203 Graduate assistant in UNI Art Department developed asthma as a result of exposures to fumes and art materials. Such was held to be occupational disease rather than injury. 3001 3002 Gross earnings of graduate assistant included all actual earnings for work in the library, her stipend and the value of her scholarship. When converting to determine the rate, the earnings from the stipend and library work were applied under section 85.36(10) through the benefit schedule. To that amount was added 80 percent of 1/50 of the value of the scholarship. The value of the scholarship was not applied through the benefit schedule since the benefit schedule reduces the gross amount for taxes, none of which were applicable to the scholarship. To do so would have understated the rate of compensation. 51803 Thirty-three-year-old single woman with masters in art which she was unable to use due to her occupational disease returned to school and obtained a masters in special education. Earnings as an art or special education teacher are equal. Claimant awarded 25 percent permanent partial disability due to loss of access to jobs and loss of opportunity to pursue career as an artist.