Page 1 before the iowa industrial commissioner ____________________________________________________________ : JUNIOR ALDRIDGE, : : Claimant, : : vs. : : File No. 822896 J. P. CULLEN & SONS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by claimant Junior Aldridge against defendant employer J. P. Cullen & Sons and defendant insurance carrier Wausau Insurance Companies to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on May 8, 1986. This matter came on for hearing before the undersigned in Davenport, Iowa, on June 2, 1989. The cause was considered fully submitted at the close of hearing. The record in this proceeding consists of joint exhibits A through F, defendants' exhibit 1 and claimant's testimony. issues Pursuant to the prehearing report submitted by the parties and approved at hearing, the following issues have been stipulated: that an employment relationship existed between claimant and employer at the time of the injury; that claimant sustained an injury on May 8, 1986, arising out of and in the course of that employment; that the injury caused temporary and permanent disability; that the appropriate rate of weekly compensation is $318.18; that affirmative defenses are waived; that defendants have voluntarily paid claimant benefits from the date of injury and continue to do so. Issues presented for resolution include: the extent of claimant's entitlement to compensation for temporary total disability or healing period; the extent of claimant's entitlement to compensation for permanent disability, the nature of his disability and the commencement date thereof; the extent of claimant's entitlement to medical benefits; taxation of costs. review of the evidence Page 2 Claimant testified that he was 62 years of age as of the date of hearing and that his education was limited to the eighth grade. He indicated that his work history included farm work, a 19-month stint in the United States Army at age 18 (with training as a mechanic), heavy construction work from 1947-1950, and employment as a bricklayer's helper since 1950. Claimant's employment as a bricklayer's helper included duties such as mixing mortar, carrying bricks, building scaffolding, climbing up to 11 stories and lifting up to 90 pounds. Claimant testified that he has never smoked and has never been treated for allergies. He indicated his health was "perfect" and that he had missed zero days of work due to illness in the year before the subject injury. Claimant further indicated that he had no prior history of breathing or respiratory problems, although on one occasion approximately seven years before the subject injury, he required medical treatment (one visit) when he breathed fumes from a cleaner or solvent. In addition, claimant had surgery for removal of nose polyps on three occasions, the most recent occasion being 5-7 years prior to the work injury. Claimant described his injury as occurring when he fell approximately ten feet from a scaffold. He was immediately taken to the hospital where he was seen by Richard A. Roski, M.D. Claimant described his injuries as including three spinal fractures, a broken thumb, two broken toes, a broken nose, lacerations, a hiatal hernia, detached lining of the stomach and pulmonary problems. Claimant was treated for his orthopaedic problems by Dr. Roski, began respiratory treatment at the hands of Akshay Mahadevia, M.D. Claimant also testified to seeing several other physicians during his first hospitalization. At the present time, claimant indicated that his toes and head have recovered. His thumb hurts in cold weather and his legs become numb if he lifts items even as light as a gallon of milk or an iron skillet. He was prescribed a cane and back brace by Dr. Roski, and has problems with his balance and numbness of the right foot. He is unable at present to perform such common functions as lawn mowing, working on automobiles, watching television for any length of time, hunting, climbing stairs (except slowly, one at a time) or breathing easily (his back brace puts pressure on his lungs). Claimant testified that prior to his injury, he was able to constantly walk, climb, bend, twist, stoop, and lift heavy weights at work. Now, his limitations from Dr. Roski include a ten-pound weight limit, an injunction against walking in grass, turning too fast, or bending (even to tie his shoes). Claimant indicated that his typical day now includes watching television, doing light yard work, reclining when his legs become tired, sitting up to one hour, standing for up to a few minutes (when he does, his back hurts, his legs Page 3 become numb, and he is required to lie down for 10-15 minutes), and walking up to perhaps one-half block. He is at all times short of breath at least a little, but more so upon exertion, such as walking. On cross-examination, claimant testified that he was required to mix mortar during his many years as a bricklayer's helper. This is a very dusty type of job. He had no prior history of back pains, despite the work being so heavy. His history of nasal polyps began more than 25 years ago, and claimant believed that the polyps were caused by cement dust. Claimant agreed that he probably told a nurse he was allergic to any dust and that he is now "allergic" to tobacco smoke. Asked if he now had any worse spasms or other problems as opposed to 1986, claimant indicated that his condition is essentially the same. From September, 1988 through February, 1989, he was frequently hospitalized. However, claimant agreed that he had not suffered bronchial spasms during the four months prior to hearing, and that this improvement coincided with his discontinuing use of the metal back brace. In general, claimant indicated that he has undergone repeated hospitalizations for respiratory problems since this injury. These have been as often as perhaps every six weeks. Admitting records of Mercy Hospital in Davenport show that claimant was seen by Richard A. Roski, M.D. Admitting diagnosis was of multiple trauma with scalp laceration, nasal fracture, thoracic compression fracture and fracture of the thumb. Past medical history was of allergies possibly to aspirin and some diuretics and including nasal polyps and emphysema. Claimant was on no active medication. Claimant was admitted to the intensive care unit for observation due to poor partial pressure of oxygen and Dr. Mahadevia was to follow for evaluation of pulmonary status. A. E. Berkow, M.D., did a chest x-ray on May 9, finding cardiac enlargement and pulmonary vascular congestion. A CT scan of the thoracic spine read on May 9 by E. L. Johnson, M.D., showed marked degenerative changes from the inferior portion of T-7 through the upper border of T-12. The bridge at T10-T9 showed evidence of recent fracture through the bone bridge anteriorly. Dr. Johnson's impression was of osteoporosis with severe degenerative changes and recent fracture through a bone bridge of T9-T10. Radiologist R. Picchiotti, M.D., reported on May 8 that one view of the chest showed the heart at the upper limits of normal and lung fields essentially clear, a fracture of the nasal bones with angulation towards the face, no evidence of fracture in the cervical spine (but moderate arthritic changes of the degenerative and hypertrophic variety, a compression fracture of T-10 and conceivably a fracture of the osteophyte bridging T-10 and 11, a slightly comminuted fracture of the proximal left first metacarpal with anterior angulation of the distal portion, and Page 4 hypertrophic degenerative osteoarthritis of the lower lumbar spine with no evidence of fracture. Dr. Mahadevia first saw claimant on May 9, 1986. Chest x-ray failed to reveal any pneumothoracic pneumonia or any abnormalities except some chronic changes and small calcified nodular density. Claimant denied any history of asthma, bronchitis, chronic obstructive pulmonary disease (hereafter "COPD") or pneumonia. Dr. Mahadevia's initial impression was of hypoxemia, etiology unclear. Asthma and COPD were initially ruled out. However, Dr. Mahadevia's discharge diagnosis on May 27, 1986 was of severe COPD; claimant was discharged with the advice to take seven separate medications, although he was not discharged on oxygen. Mercy Hospital records show numerous subsequent hospitalizations, primarily for treatment of respiratory problems. However, claimant also was seen for various gastrointestinal problems. These gastrointestinal problems included findings of a large, sliding hiatal hernia with gastroesophageal reflux. Dr. Roski authored a series of letters to defendant insurance carrier. On July 14, 1986, he stated that claimant had developed a compression fracture of the T-10 vertebral body by reason of his fall. He noted in that letter that surgery to stabilize claimant's spine was quite risky due to claimant's chronic lung problems, which had been markedly exacerbated following the fall. On September 22, 1986, Dr. Roski wrote that claimant had continued to heal from the compression fracture and noted that he did not directly relate claimant's gastrointestinal bleeding to the job injury. On January 28, 1987, Dr. Roski wrote that claimant's neurological condition appeared normal, but that he still had some intermittent pain in the rib area, probably related to the fractures. "The deformities that he has in his spine from his area of fracture I think would make it difficult for him to ever get back to any kind of strenuous work activity * * *." He did not realistically believe that claimant could be rehabilitated as to his back to any reasonable degree, even under better conditions. He certainly would not want to have claimant undergoing "any kind of lifting or strenuous activity because of the continued condition of his spine." Dr. Roski wrote on March 24, 1987 that due to the severe nature of claimant's spine problem, he was not a candidate to do any kind of manual labor now or in the future. On April 27, 1987, Dr. Roski wrote that claimant continued to have thoracic pain and that he was rated under the American Medical Association guidelines as having sustained a 20 percent permanent disability of the whole person by reason of his thoracic compression fracture. Because of the poor healing of that fracture and persistent Page 5 pain, claimant would be required to stay in his back brace permanently "and I do not recommend he undertake any lifting in the future." Dr. Roski wrote claimant's counsel on November 20, 1987 to note that claimant was an extremely high risk for a major posterior rod stabilization procedure because of his other medical problems. In this letter, Dr. Roski noted that claimant had a severe underlying pulmonary problem, but further opined that the pulmonary function was further compromised by the deformity in claimant's thoracic spine, and that the situation was still progressing and further deterioration might still force reconsideration of high risk surgical intervention. Dr. Roski wrote claimant's counsel again on May 12, 1988: Mr. Aldridge has not been seen back in this office since April 27th 1987. We have had some phone contact with him up through 11-2-87. It is my understanding that his medical condition has continued to gradually deteriorate. This is compounded both by the condition of his spine as well as progressive pulmonary compromise. Certainly, from my standpoint as far as his spine is concerned, he is unable to do any active heavy work. This would include any type of bending and lifting or repetitive lifting activities. I think that along with his pulmonary condition would make him totally disabled at this time. I certainly do not envision that improving at all in the future. Dr. Roski wrote again on December 5, 1988: I subsequently seen [sic] Mr. Aldridge in the office on August 5 and September 14, 1988. Mr. Aldridge's condition overall remains quite poor. I have been seeing him because of a compression fracture of his thoracic spine. He also, as you well know, has severe pulmonary problems for which is followed by Dr. Mahadevia. His two problems are quite intertwined and that his compression fractures decompensate his breathing capacity. His poor pulmonary function allows for continued exacerbation of his back and rib problems. At present time, I do not think him capable of any further full time employment and not rehabilitatable to any kind of significant work level. Claimant was treated for his gastrointestinal problems including hiatal hernia and bleeding from esophageal ulcers by B. N. Shivakumar, M.D. Dr. Shivakumar wrote on September 9, 1986, that he could not say that claimant's entire problem was related to the job injury, but that the bleeding and ulcer "might" have been precipitated by the stress of the trauma and possibly analgesic medications. Dr. Shivakumar wrote again on December 16, 1986 that it was very difficult to say that the injury had been directly Page 6 responsible for gastrointestinal problems, but that "I certainly feel that the recent accident has something to do with this, although it is not a direct effect of the accident." Dr. Mahadevia wrote defendant carrier on October 27, 1986 to opine that although claimant's fracture did not directly cause his COPD, it caused an acute exacerbation of COPD and significant deterioration in claimant's respiratory status. He opined again in a letter of December 4, 1986 that claimant's COPD was "acutely exacerbated from the vertebral fracture, and the immobilization necessary following." Dr. Mahadevia testified by deposition on May 30, 1989. Dr. Mahadevia is a specialist in pulmonary medicine who had practiced in that specialty in the Quad City area for five and one-half years. He first saw claimant on May 8, 1986. The doctor was called in for a consultation because claimant was short of breath and panting or breathing shallowly. One x-ray had been done, but Dr. Mahadevia requested another. He found suggestions of chronic lung disease and a small calcified nodular density. Inflammation of the bronchial tubes was seen. Nodular densities are caused by previous infection. Claimant had only one small nodular density which was probably not a by-product of any occupational lung disease. Claimant did not give a history of emphysema, but did give history of a prior exposure to chlorine bleach which caused acute respiratory distress at the time. Although Dr. Roski's history included a reference to emphysema, Dr. Mahadevia concluded claimant does not suffer from that disease. As has been seen, Dr. Mahadevia concluded that claimant suffered from chronic obstructive pulmonary disease. He noted that claimant's enlarged heart is a common result of COPD. He also testified that claimant's COPD probably preexisted the work injury because radiographic changes would not have shown up so quickly; it appeared to the doctor that claimant had initially acquired COPD at least one month prior to the work injury. Claimant's history of asthma probably produced the COPD. He also noted that an asthmatic condition can become very symptomatic or very noticeable all at once, where the individual had in reality suffered the asthmatic condition to an undetectable degree for some time. Asthmatic conditions may also be traumatically aggravated or induced. Dr. Mahadevia felt from claimant's clinical examination and history of allergic nasal polyp that it was more likely he had a preexisting asthmatic component which could have been aggravated by injury. Multiple allergies are a potential cause of nasal polyps. As to claimant's subsequent history, Dr. Mahadevia testified: Q. In Mr. Aldridge's case you've continued to Page 7 treat him down to the present time, haven't you, Doctor? A. Yes, I have. Q. And I certainly don't want to go through the many, many pages of records that we've given the judge about that treatment but is it a fair observation that Mr. Aldridge has had a real succession or recurrence of asthmatic attacks every six weeks to two months where he needs to be hospitalized? A. Correct. Q. It looks like the hospitalizations may be overnight or a day and two in length at most; is that a fair summary? A. Yes. Q. What do you basically do for him when he's in the hospital with one of these acute attacks? A. I usually treat him with intravenous medicines which are bronchodilators and also give him corticosteriods and oxygen and relieve the spasm of the bronchial tubes. (Dr. Mahadevia deposition, page 21, line 13 through page 22, line 10) Questioned by defense counsel as to the cause of subsequent bronchospasms or asthmatic reactions: [Q.] If we looked at one of the recent typical hospitalizations, is there any way within a reasonable degree of medical certainty that you could indicate whether the bronchospasms or asthmatic reaction were caused by something he inhaled or was allergic to? A. Yes. It is possible. Q. All right. And if a person repetitively inhales an irritant that the bronchial tubes don't like and you get a bronchospasm as a result, depending on how much you inhale or how exposed you are to that irritant, does that control the severity of the reaction? A. Yes. Q. The severity of the bronchospasms themselves? A. Yes. Q. Doctor, is it likely in your opinion that a number of Mr. Aldridge's recent bronchospasms or asthmatic attacks have been related to some Page 8 unknown irritant that he is being exposed to? A. That is correct. Q. Again, for the judge's benefit if a person is allergic to a particular irritant and is exposed to that irritant on a repetitive basis, can the reaction, the degree of bronchospasms, become progressively worse? A. Yes. As time goes by, it gets worse. Q. Is that a pretty well accepted medical fact? A. Yes. Q. I have just kind of as an overview sensed from Mr. Aldridge's medical records that his bronchial condition is worse today than it was, say, in 1987. A. Yes. Q. Is that your observation? A. Correct. Q. Could a large measure, if not all, of that worsening of his bronchial condition be related to the repetitive exposure to whatever irritant is triggering the bronchospasms? A. Correct. (Dr. Mahadevia deposition, page 22, line 18 through page 24, line 11) However, upon inquiry by defense counsel as to the causative impact of the work injury, Dr. Mahadevia testified: Q. Is there any way, Doctor, within a reasonable degree of medical certainty that you could say it is more probable that his asthma was aggravated by the fall that he suffered as opposed to it being a progressing or developing adult onset of asthma? A. I think it was aggravated by the fall. Q. Why do you say that is more probable than the fact that he was suffering a developing asthmatic reaction as a result of simply what he was being exposed to in daily life? A. The reason to state that that is more likely because he was not hospitalized or he wasn't in the emergency room or in any physician's office with similar symptoms before the date of the accident. Page 9 (Dr. Mahadevia deposition, page 27, line 13 through page 28, line 3) And: Q. Doctor, is it entirely possible that Mr. Aldridge could suffer an acute short-term aggravation of his underlying chronic obstructive pulmonary disease as a result of a fall and perhaps a compression fracture of osteophytes bridging between one or more of the thoracic vertebrae? A. Yes, it is likely. Q. In other words, there could be a physiological reaction such as splinting which might account for an acute aggravation of an underlying chronic obstructive pulmonary condition? A. Yes. Q. Now, Doctor, what would there be about a fall and an acute aggravation that would convert the fall or the trauma into a suspected cause of a chronic aggravation of a [sic] underlying obstructive pulmonary disease? Page 10 A. Usually once the effect of the trauma goes away, it should not longer be a factor. Q. In other words, you could have in layman's terms a short-term reaction where your asthma or your obstructive lung disease was aggravated but you would expect those symptoms to subside as you moved away from the trauma date? A. That's correct. (Dr. Mahadevia deposition, page 29, line 22 through page 30, line 23) And: Q. Doctor, is there any way in Mr. Aldridge's case that his current bronchial sensitivity and hyperreactivity can be said to be caused by any effect of that original fall in 1986? A. No, it doesn't present any factor. (Dr. Mahadevia deposition, page 31, lines 2 through line 7) Dr. Mahadevia further specified that if claimant were being exposed in some unknown fashion to an irritant that tended to trigger bronchospasms in his home or local environment, this would cause his condition to literally worsen month by month. Possible irritants could include dust, fumes, pollen, ragweed, humidity, cold air, or other known specific environmental factors. Claimant was not given allergy tests, since these are normally not productive with an individual of his age, largely because in any event nothing can be done to cure the problem. However, on examination by claimant's attorney, Dr. Mahadevia testified: Q. Do you feel that the fall accelerated his symptomatology? A. Yes. Q. Do you feel that it accelerated it significantly? A. Yes. Q. And is this an opinion within a reasonable degree of medical and surgical certainty on your part? A. Yes. My conclusion really depends on the history I obtained from Mr. Aldridge on the first day of May 8th, '86. (Dr. Mahadevia deposition, page 41, lines 10 through 21) Page 11 And: Q. Is it true that his orthopedic condition can have a direct relationship on his pulmonary situation? A. Yes, it can. Q. In what way? A. It can cause muscle spasm, pain, splinting which can impair his ability to breathe. Q. And do those orthopedically induced impairments make him any more susceptible to the type of asthmatic or allergic reactions you're treating him for? A. It can make him more symptomatic from that. Q. Mr. Aldridge wears a brace, doesn't he? A. Yes. Q. Does that have any impact on his pulmonary situation? A. Yes. People who have brace, usually they tend to be more short of breath than people who don't wear a brace. Q. And if he needs to wear that brace as a direct result of the fall that he sustained in 1986, would that change your opinion as to whether or not the fall is contributing to his current chronic problem? A. Yes, indirectly. Because of his injury he needs rest and because of rest his breathing is somewhat more restricted. Q. And does that restriction caused by the brace impact negatively on his overall pulmonary condition? A. Yes, that's correct. Q. Is there any known traumatic component of adult onset asthma? A. No, but trauma can aggravate it. Q. And once aggravated it will only get worse? A. Yes. (Dr. Mahadevia deposition, page 42, line 2 through page 43, line 14) And: Page 12 Q. Has Mr. Aldridge been capable of working at any time since you first saw him? A. No. Q. Do you have an opinion based upon a reasonable degree of medical and surgical certainty as to whether or not the injury sustained by Mr. Aldridge at work is causally related to his current inability to work? A. It is one of the precipitating factors, yes. (Dr. Mahadevia deposition, page 44, lines 2 through 11) And: Q. Is there anything about Mr. Aldridge's carriage or posture which impacts upon his pulmonary condition? A. Yes. Q. And what would that be? A. Any kind of deformity or spinal deformity would impair ability to breathe. (Dr. Mahadevia deposition, page 46, line 25 through page 47, line 6) Page 13 On redirect examination, Dr. Mahadevia testified it was possible that claimant suffered an acute exacerbation or flare-up of his bronchial problem by reason of the fall or sequelae of the fall in that the episode cleared up within a few days of initiation of treatment and claimant thereafter had increasingly severe repetitive attacks and that the most likely cause for the current repetitive attacks is environmental in nature, that is, some irritant claimant is encountering in his environment. However, on recross-examination, Dr. Mahadevia agreed that he was speaking only of the direct cause of claimant's condition and that each attack makes claimant more susceptible to the next attack: Q. And is it your opinion within a reasonable degree of medical and surgical certainty that the fall Mr. Aldridge sustained, in fact, made him more susceptible to the initial attacks that he suffered while under your care? A. Yes. Q. And any attacks he may have suffered while -- that were directly caused by that fall, in fact, made him more susceptible to all subsequent attacks? A. Yes. Q. In that regard is the fall the man sustained in 1986 a cause of his current condition? A. As a factor, definite factor. Q. You differentiate between factors and causes. A. Cause in my opinion means it is one condition which caused that. A factor means he may have that before and aggravated it and I'm unable to say whether he had it or he didn't. Q. Do you have an opinion within a reasonable degree of medical and surgical certainty as to whether or not Mr. Aldridge's condition of ill-being would be better or worse absent the injury he sustained at work in 1986? A. I would have to guess that it would have been better. (Dr. Mahadevia deposition, page 52, line 18 through page 53, line 20) applicable law and analysis As has been seen, the parties have stipulated that claimant sustained an injury arising out of and in the course of his employment and that the injury is causally connected to temporary and permanent disability. The Page 14 fighting issue in this case is the nature and extent of claimant's disability. In particular, defendants are of the view that claimant's pulmonary difficulties and particularly his current pulmonary status lack a causal relationship to the work injury. Defendants' brief further asserts that the chronic nature of claimant's asthmatic or COPD condition is such that his recuperation from the back injury has been impaired. However, the mere fact that claimant's pulmonary difficulties impede recovery from his orthopaedic problems (they make surgery high risk and inadvisable) is irrelevant. An employer takes an employee subject to any active or dormant health impairments. Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). There is no evidence in this record to controvert the finding that claimant's fracture at T-10 was caused by the injury. Dr. Roski has opined that claimant is disabled from any active heavy work, including any type of bending, lifting or repetitive lifting. Dr. Roski felt claimant incapable of any further full-time employment and not rehabilitatable to any kind of significant work level. Claimant has only an eighth grade education and a work history limited to hard manual labor as a farm and construction worker and bricklayer's helper. By reason of his orthopaedic problems alone claimant is clearly unable to return to meaningful employment in any field in which he has experience. His age and educational level make it unlikely in the extreme that claimant could be rehabilitated to any other meaningful employment, even in the absence of his pulmonary problems. By reason of his back injury alone, claimant has sustained a permanent and total industrial disability; there was no competent evidence introduced to show that there exists any other gainful employment which claimant now or at any later time might reasonably be expected to enter and carry on successfully. Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935). The Iowa court found that the Diederich claimant suffered a compression fracture and was 59 years of age, had worked as a streetcar motorman for 30 years, and had little education. The court noted that to suppose such a person could become a stenographer, lawyer, clerk or bookkeeper was to suppose the impossible, for a man of his age with no education was not capable of securing or filling any such position. From the standpoint of his ability to go back to work to earn a living for himself and his family, Diederich's disability was a total disability. The same observations are true in this case. It is held that claimant has established that he is permanently and totally disabled from an industrial viewpoint. Yet, claimant's orthopaedic problems do not stand alone. It seems clear that claimant is also totally disabled by reason of his pulmonary difficulties. As if the limitations to his ability to function by reason of COPD were not severe enough, it is difficult to imagine that claimant could ever find an employer willing to accept the likelihood that claimant will require repeated Page 15 hospitalizations for pulmonary problems perhaps every six weeks or two months for the indefinite future. But, can claimant's present pulmonary status be directly traced to the work injury? Defendants properly point out that the answer to this question must be found in the testimony of Dr. Mahadevia. A review of his deposition shows that Dr. Mahadevia has employed language which gives comfort to each side of this dispute. Defendants point out that Dr. Mahadevia believed that claimant's asthma and COPD preexisted his work injury. They are of the further view that even if the work injury aggravated claimant's pulmonary condition, the aggravation was temporary in nature and that his repetitive subsequent problems are too remote to trace to the work injury. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 8, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Page 16 Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Although claimant has had surgery for removal of nasal polyps on three occasions and has suffered one acute incident of respiratory distress when he inhaled chlorine, the record is clear that he suffered no industrial disability by reason of asthma or COPD prior to the work injury. His condition may have preexisted the injury, but was asymptomatic. During the year prior to the injury, claimant missed zero days of work. Following the injury, he has been totally disabled from any sort of remunerative employment by reason of his pulmonary condition, regardless of his orthopaedic status. Dr. Mahadevia was clearly of the view that the work injury aggravated the preexisting condition. He further points out that each subsequent attack has made claimant more susceptible to the next. He specifically opined that claimant's fall is a cause of his current condition and that claimant's current condition would be better at the present time absent the work injury. Where a work injury has been established, the employer is liable for all consequences that naturally and proximately flow from the accident. Oldham v. Scofield & Welch, 222 Iowa 764, 266 N.W. 480 (1936). That is to say, naturally occurring sequelae of an original injury are compensable. For example, a bathtub injury did not break the chain of causation in a case where claimant was actually in the tub by reason of the original work injury, Rust v. Quaker Oats, 2-1 Iowa Industrial Commissioner Decisions 475 (1985). In the present case, it appears that the work injury Page 17 that aggravated and lit up claimant's preexisting condition is not the sole proximate cause of claimant's repetitive subsequent attacks, but is one substantial proximate cause. The subsequent attacks and claimant's current pulmonary status flow directly and naturally from the original aggravation and lighting up of claimant's chronic obstructive pulmonary disease. It is therefore held that claimant has met his burden of proof in establishing that his current pulmonary condition is causally related to the work injury. There can be little doubt but that claimant's current pulmonary condition independently disables him from gainful employment on a total and permanent basis. Because it is found that claimant has sustained a total and permanent disability, it is unnecessary to consider the issue of temporary total disability or healing period. Still at issue is claimant's entitlement to medical benefits under Iowa Code section 85.27. The stipulation entered into by the parties at hearing was that if the commissioner were to find claimant's pulmonary treatment to be causally related to the industrial accident and a source of compensable disability, all such medical services would be compensated by defendants, even though actual bills were not submitted into evidence. As it is found that claimant's pulmonary condition is attributable to the work injury, defendants shall bear the responsibility for payment of those medical bills. findings of fact THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant sustained an injury arising out of and in the course of his employment on May 8, 1986. 2. As stipulated, the appropriate rate of weekly compensation is $318.18. 3. By reason of the work injury, claimant sustained a fracture to the tenth thoracic vertebra which could not be treated surgically by reason of claimant's serious pulmonary condition of chronic obstructive pulmonary disease. 4. Claimant's treating physician with respect to the thoracic fracture has restricted claimant against any kind of lifting or strenuous activity including any type of bending, lifting or repetitive lifting. That physician also found that claimant had sustained a functional disability of 20 percent of the whole person under American Medical Association guidelines. 5. Claimant was also required to employ a back brace on a permanent basis. The compression fracture further compromises claimant's pulmonary problems and vice versa. 6. By reason of the work injury, claimant also aggravated and lit up a preexisting condition of chronic obstructive pulmonary disease. Since the injury, claimant Page 18 has suffered repetitive pulmonary attacks which have cause regular hospitalizations every 6-8 weeks since, except for several months prior to hearing. Claimant's primary pulmonary physician finds him disabled from any gainful employment by reason of his pulmonary disease. 7. Claimant is currently and for the foreseeable future disabled from any meaningful employment in any recognized and regular field of endeavor by reason, independently, of his thoracic fracture and by his chronic obstructive pulmonary disease. conclusion of law WHEREFORE, based on the principles of law previously cited, the following conclusion of law is made: 1. Claimant is permanently and totally disabled by reason of his work injury of May 8, 1986. order THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant three hundred eighteen and 18/100 dollars ($318.18) per week as permanent total disability compensation from May 8, 1986 and during such time as claimant remains totally disabled. Defendants shall be entitled to credit for all weekly benefit payments made on a voluntary basis. As per the stipulation of the parties, defendants shall pay all outstanding medical bills attributable either to claimant's orthopaedic or to his pulmonary condition. The costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 19 Copies To: Mr. William G. Gillies, Jr. Mr. Christopher J. Klockau Attorneys at Law 1808 Third Avenue P.O. Box 3460 Rock Island, Illinois 61204-3460 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Square 400 Main Street Davenport, Iowa 52801 1108.50, 1804 Filed April 27, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : JUNIOR ALDRIDGE, : : Claimant, : : vs. : : File No. 822896 J. P. CULLEN & SONS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.50, 1804 Stipulated work injury caused thoracic compression fracture and aggravated and lit up preexisting but asymptomatic chronic obstructive pulmonary disease. Problems intertwined, as surgery was inadvisable due to COPD, and COPD was worsened by orthopaedic problems. Subsequent repetitive attacks of COPD were found causally related as sequelae of original injury. Claimant found totally and permanently disabled by orthopaedic and pulmonary problems independently. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHERRY MEARS, Claimant, vs. File No. 823071 ALDI BENNER (ALDI, INC.), A P P E A L Employer, D E C I S I O N and CNA INSURANCE COMPANIES, 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 October 9, 1991 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: A contingent fee for attorney's services is not applicable to medical benefits obtained if the action also sought disability benefits. Toalson v. Purolator Courier Corp., Decision on Attorney Fees, February 27, 1989, file number 808332; Webb v. Lovejoy Construction Company, Ruling on Rehearing, December 16, 1992, file number 474988. Attorney Craig Warner shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of April, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Craig D. Warner Page 2 Attorney at Law 321 North Third Street Burlington, Iowa 52601 Mr. D. Raymond Walton Attorney at Law 3370 Westridge Drive Waterloo, Iowa 50701 Mr. Elliott R. McDonald, Jr. Attorney at Law P O Box 2746 Davenport, Iowa 52809 9999 Filed April 22, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHERRY MEARS, Claimant, vs. File No. 823071 ALDI BENNER (ALDI, INC.), A P P E A L Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed October 9, 1991 with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHERRY MEARS, Claimant, File No. 823071 vs. A R B I T R A T I O N ALDI BENNER, (ALDI, INC.), D E C I S I O N Employer, F I L E D and APR 27 1989 CNA INSURANCE COMPANIES, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Sherry Mears against Aldi Benner, also known as Aldi, Inc., her former employer, and CNA Insurance, the employer's insurance carrier. The case was heard and fully submitted at Burlington, Iowa, on July 25, 1988. The record in the proceeding consists of testimony from Sherry Mears, Jim Dumse, Sandra Powell and Mary Ann Buck. The record also contains claimant's exhibits A through J. ISSUES Claimant seeks compensation for permanent disability and alleges to be totally disabled. Claimant also seeks to recover medical benefits under Code section 85.27. It was stipulated that claimant sustained an injury which arose out of and in the course of her employment and that her entitlement to healing period ran from November 18, 1985 through January 7, 1987. It was further stipulated that claimant had been paid 139 weeks of compensation for permanent disability effective as of July 18, 1988 and that the correct rate of compensation is $173.30 per week. Claimant relies upon the odd-lot doctrine to assert her claim for total disability. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this casE. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Sherry Mears is a 36-year-old married lady who lives at West Burlington, Iowa, with her two children whose ages are 16 and 13. She is currently separated from her husband. Mears is a 1971 high school graduate. She has completed a drafting course at Southeast Community College and a course in shorthand. Claimant has been employed as a dental assistant and also as a receptionist. Claimant was employed by General Electric as a draftsman for five years where she earned $6.00 per hour, the highest rate of earnings that she enjoyed from any of the positions she held prior to commencing work with Aldi Benner. Sherry Mears commenced work with Aldi Benner on April 19, 1985. She worked as a warehouse selector, a job which consisted of loading boxes of groceries onto pallets on a forklift-type piece of equipment referred to as a "tugger." She would move about the warehouse filling orders and placing the boxes onto the "tugger" pallet. When it was filled, she would then move to the loading dock where other employees would load the boxes into semis. Claimant stated that her work standard was handling 280 boxes per hour. Claimant testified that the work was hard, but that she liked it. She acknowledged experiencing occasional aches, pain and soreness. Claimant testified that, on November 18, 1985, she had been at work approximately 30 minutes when she bent over to pick up a box and something in her back snapped. Claimant stated that she felt a lot of pain in the left side of her low back. Claimant stated that she tried to resume working, but her back started hurting more. She reported the incident to her supervisor and was sent to the Burlington Medical Center Emergency Room where she was examined, treated with medications and advised to stay off work for two or three days to see what happened (exhibit B, pages 1-3). Claimant testified that she was miserable and then went to her family physicians in New London, Iowa, Harry M. Readinger, M.D., and W. R. Vaughan, M.D. She was again given medication and advised to use a heating pad. Her symptoms did not improve. In January, 1986, claimant had been seen by Koert Smith, M.D., an orthopaedic surgeon in Burlington, Iowa. Dr. Smith noted that claimant had a spina bifida occulta at the S1 level of her spine. He indicated that claimant had suffered a lumbar strain, that she should recover in two to four weeks and should be able to return to her prior employment without restriction and without having any permanent impairment (exhibit C). Claimant was referred to Richard Neiman, M.D., a neurologist in Iowa City, Iowa. After conservative treatment was again unsuccessful, claimant underwent a myelogram and CT scan on April 17, 1986 which showed her to have congenital abnormalities at the L5-S1 level of her spine, a minimally bulging annulus at the L4-5 level and stress arthrosis of the facet joints (exhibit E, page 7). Approximately a month later, claimant was involved in an automobile accident (exhibit E, page 9). Claimant was evaluated by E. A. Dykstra, M.D., an Iowa City orthopaedic surgeon. Dr. Dykstra felt that claimant's primary problem was degenerative disc disease with central bulging at the L4-5 and L5-S1 levels and the spina bifida occulta. Dr. Dykstra felt that claimant would be unable to return to a job which involved heavy lifting. He did not recommend a surgical fusion (exhibit F). Claimant was evaluated at the Institute for Low Back Care in Minneapolis, Minnesota, in November, 1986. The report issued following the examination indicates that the claimant sustained a significant musculoligamentous strain and had a mechanical low back problem and injured facet joints. Alexander Lifson, M.D., the author of the report, stated that he did not believe claimant was a candidate for a lumbosacral fusion (exhibit G). Dr. Neiman became claimant's primary treating physician. On January 9, 1987, he indicated that her recovery seemed to have plateaued and he rated her as having a 20% permanent partial impairment of the body as a whole due to her low back condition (exhibit E, page 22; exhibit A, page 26). Dr. Neiman explained that claimant suffers from gross instability in her lower back which is a result of a congenital malformation being aggravated by time and probably by the lifting which she performed at her place of employment. He stated that the aggravation of the preexisting condition was permanent (exhibit A, pages 5-6, 10-12 and 35). Dr. Neiman indicated that the automobile accident seemed to worsen claimant's low back, but that it was not a major aggravating factor affecting her back (exhibit A, pages 16, 17 and 27; exhibit E, page 14). Dr. Neiman indicated that, during his course of treatment, the main reason for seeing claimant was her low back and that whenever he saw claimant for her low back, he also looked at her neck (exhibit E, page 11; exhibit A, page 18). Dr. Neiman advised that claimant restrict her activities to lifting of no more than 15 pounds and that she also avoid flexion, extension, prolonged sitting or standing (exhibit A, page 22). He expected that claimant would have difficulty performing housework or performing activities which involved rotation of the body (exhibit A, pages 30 and 31). He felt that she should not return to perform heavy lifting or other vigorous work, but that she could possibly work as a secretary if the condition of her neck had resolved (exhibit E, page 14; exhibit A, pages 31 and 32). Dr. Neiman felt that fusion surgery might improve claimant's symptoms by removing the instability, however the orthopaedic surgeons with whom he had consulted were not recommending surgery (exhibit A, pages 14, 29 and 39-41; exhibit E, page 28; exhibit F; exhibit G). Dr. Neiman indicated that the ongoing litigation process was probably aggravating claimant's symptoms (exhibit E, pages 29-31). He stated that claimant's headaches and arm complaints were due to her neck condition which had resulted from the automobile accident and were not related to the low back injury (exhibit A, pages 21 and 28). Dr. Neiman strongly recommended swimming as a preferred form of therapy for claimant, but he also indicated that with a problem such as claimant's, therapy would not have made much difference (exhibit A, pages 20 and 45). Dr. Neiman explained that the instability problem in claimant's low back is such that whenever she bends forward the vertebral body shifts forward, pinches off the nerve root and causes pain (exhibit A, pages 36 and 37). He indicated that the mechanical instability appeared to have damaged the right L5 nerve root (exhibit A, page 42). Exhibit D contains the notes of claimant's treatment obtained from her family physicians starting in 1971. A note of October 18, 1985 reports that claimant had pain in her hips and worked lifting boxes all day (exhibit D, page 4). None of the earlier notes make any reference to back complaints. Jim Dumse, claimant's brother, testified that prior to the time of claimant's injury, she was very active and engaged in activities such as exercising and water skiing, but that since the injury, she does little activity other than swimming. Dumse stated that claimant got along better with her children prior to the injury and that she is now short-tempered. Dumse confirmed that the death of their mother, the automobile accident and the ongoing litigation is stressful to claimant. Sandra Powell, a long-time friend of claimant, testified that during the year before claimant's work accident, she and claimant exercised at the "Y" including nautilus and running on the track. Powell stated that claimant had been the more active of the two of them prior to her injury, but that now claimant cannot do the things that she could before the injury. Powell stated that claimant is irritable, but that now swimming is the only exercise in which claimant engages. Powell stated that claimant is well-motivated and is not afraid of work. To Powell's knowledge, claimant had been steadily employed prior to the work injury. Mary Ann Buck, a rehabilitation specialist for Intracorp, testified that she was retained to work with claimant starting in August, 1986. Buck stated that she observed the work at the Aldi warehouse and met with Dr. Neiman. Buck stated that she phoned and spoke with claimant's husband and daughter and that claimant's husband advised Buck that she should not talk with the daughter. Buck stated that she was advised that claimant was stressed by her involvement in the case. Buck testified that a "Y" membership was arranged for claimant. She stated that the Kline Hospital facility is part of Burlington Medical Center is for residents and is not open to the general public or for people like claimant. Buck stated that her last contact with this case was in January, 1987 when she met with Dr. Neiman and was advised that claimant was not motivated to help herself and that therapy had been discontinued. Dr. Neiman did not recall telling Buck that claimant was not motivated to help herself improve (exhibit A, page 44). Claimant testified that she had arranged to perform her swimming therapy at the Kline pool because the cold water in the pool at the "Y" aggravated her back. Claimant testified that an older couple managed the pool and that the pool was available two times per week for individuals who had sustained injuries. APPLICABLE LAW AND ANALYSIS As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man."' Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The commissioner has ruled that a person must make bona fide job seeking efforts in order to benefit from the burden shifting provisions of the odd-lot doctrine. Collins v. Friendship Village, Inc., file number 679258, (App. Decn., October 31, 1988); Emshoff v. Petroleum Transportation Services, file umber 753723, (App. Decn., March 31, 1987). A worker is deemed totally disabled when that worker has insufficient residual earning capacity to be self-supporting. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 182 (Iowa 1980); Diederich v. Tri-City Railway, 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). From the evidence introduced, it appears that the vocational consultant performed no meaningful activities aimed toward returning claimant to gainful employment. There is no evidence that Buck performed any testing to determine claimant's skills and aptitudes, made a search for available jobs or investigated areas of retraining. It appears that Buck primarily functioned to monitor claimant's physical therapy activities. Buck apparently arranged a "Y" membership, but did not determine whether the facilities at the "Y" were suitable. She did, however, apparently put forth considerable effort in attempting to refute claimant's statements of having performed swimming therapy at the Kline pool where the water temperature was warm enough that it did not aggravate her back. Buck's appearance and demeanor were observed as she testified at hearing. She is perceived to have functioned primarily as an advocate for the defendants, particularly when her assessment of Dr. Neiman's statements regarding claimant's motivation is considered in comparison to Dr. Neiman's own assessment. Dr. Neiman's assessment of claimant's condition and the cause of the condition as having been an aggravation of a preexisting condition are accepted as correct. His statement that the aggravation is permanent is likewise accepted as correct. Dr. Neiman's restrictions are adopted. All the physicians, except Dr. Smith, indicated that claimant could not return to the type of employment she had performed at Aldi Benner. Dr. Neiman also indicated, however, that she could possibly work as a secretary. Claimant has work experience as a receptionist. She has problems, however, with prolonged sitting. Her limitations would certainly restrict her from certain secretarial positions, but there are many secretarial positions which do permit a wide latitude with regard to standing, sitting or moving about. Accordingly, it is determined that claimant is not totally disabled. None of the physicians have indicated that claimant is totally incapable of engaging in gainful employment. Claimant's physical capabilities are, however, quite limited in comparison to her physical capabilities as they existed prior to the work injury of November 18, 1985. Clearly, claimant's preexisting congenital condition may have predisposed her to injury and made her more likely to be injured, but prior to the time of the injury, she was not functionally impaired. Her physical capabilities are clearly quite different now from what they were before the injury occurred. Having observed claimant's appearance and demeanor as she testified and having considered it in light of the medical evidence in the record, her complaints are accepted as being correct. There are many occupations which she was formerly capable of performing which are now beyond her capabilities. She has clearly sustained a considerable loss of earning capacity by virtue of her loss of access to a number of fields of employment and also by the reduction of wage levels as is evidenced when the wage level of her earnings at Aldi is compared to the wage levels of which she testified when she was in some of her prior positions. When all the appropriate factors of industrial disability are considered, it is determined that claimant sustained a 50% permanent partial disability as a result of the injuries that occurred on November 18, 1985. Claimant testified that she traveled to Cedar Rapids for an MRI on April 6, 1987 and to Iowa City on June 10, 1987 for her back and has not been reimbursed for those travel expenses. Exhibit H contains the prescriptions for which claimant seeks reimbursement. A review of the medication prescribed, the issuing physician and comparison with the notes shows that the Percocet, Xanax, Tylenol III and Feldene were all used in treating claimant's low back. Accordingly, they are the responsibility of the defendants. The charges for Soma and Diazepam are not shown by the records to have been related to claimant's low back. Accordingly, the amount of prescription expense claimant may recover is $176.34. Claimant is also entitled to recover transportation expense for her travels to Iowa City in April, 1987 and June, 1988. Reference to an official Iowa highway map shows the distance from Burlington to Iowa City to be 74 miles each way. Accordingly, two round trips would be 296 miles which at $.21 per mile entitles claimant to receive $62.16. FINDINGS OF FACT 1. The assessment of claimant's case as made by Dr. Neiman is accepted as being correct. 2. Claimant's description of her symptoms and complaints is accepted as being correct. 3. The injury claimant sustained on November 18, 1985 was an aggravation of a preexisting latent condition which had formerly been asymptomatic. 4. The aggravation is permanent. 5. The injury claimant sustained on November 18, 1985 was a substantial factor in producing the permanent disability with which she is currently afflicted. 6. Claimant's medical expenses as shown in exhibit H, except for the prescriptions for Soma and Diazepan, were prescribed for treatment of claimant's low back condition. The reasonable charges for those prescriptions total $176.34. 7. Claimant traveled 296 miles obtaining medical treatment for her low back injury for which she has not been compensated. 8. Sherry Mears sustained a 50% loss of her earning capacity as a result of the injuries she sustained on November 18, 1985. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury claimant sustained to her low back on November 18, 1985 arose out of and in the course of employment with Aldi Benner, also known as Aldi, Inc. 3. The injury of November 18, 1985 was a proximate cause of the physical disability which currently afflicts claimant, the prescriptions she obtained as shown in exhibit H in the amount of $176.34 and the travel of 296 miles for medical treatment which entitles her to receive $62.16 under the provisions of Code section 85.27. 4. Claimant has sustained a 50% permanent partial disability of the body as a whole which under the provisions of Code section 85.34(2)(u) entitles her to receive 250 weeks of compensation for permanent partial disability. ORDER IT IS THEREFORE ORDERED that defendants pay claimant two hundred fifty (250) weeks of compensation for permanent partial disability at the stipulated rate of one hundred seventy-three and 30/100 dollars ($173.30) per week payable commencing January 10, 1987. Defendants are entitled to credit for all amounts of permanent partial disability compensation previously paid and shall pay any unpaid past due amounts in a lump sum together with interest pursuant to Code section 85.30. IT IS FURTHER ORDERED that defendants pay claimant one hundred seventy-six and 34/100 dollars ($176.34) as reimbursement for prescription medications and sixty-two and 16/100 dollars ($62.16) for transportation expenses under the provisions of Iowa Code section 85.27. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 including forty and 00/100 dollars ($40.00) for the transcript of the deposition of Dr. Neiman IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this 27th day of April, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. D. Raymond Walton Attorney at Law 3370 Westridge Drive Waterloo, Iowa 50701 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 Page 1 before the iowa industrial commissioner ____________________________________________________________ : SHERRY MEARS, : : Claimant, : : vs. : : File No. 823071 ALDI BENNER (ALDI, INC.), : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening upon the petition of claimant which was filed on March 26, 1990. Claimant suffered an injury arising out of and in the course of her employment on November 18, 1985. After she filed a petition seeking arbitration, a hearing was held on July 25, 1988. A decision was filed on April 27, 1989. A ruling on the application for rehearing was filed on May 16, 1989. Claimant was found to have sustained a 50 percent permanent partial disability. Her rate was established as $173.30 per week. The hearing on the petition for review-reopening was thereafter held in Burlington, Iowa on April 2, 1991. The additional record consisted of claimant's exhibits 1-22, defendants' exhibits A-G, and attorney lien seeker's exhibit number 1. issues The issues to be determined are: 1) whether claimant has experienced a change of condition since the prior arbitration hearing and, if so, the extent of her current industrial disability; 2) whether certain medical bills are covered by section 85.27 of the Iowa Code; and, 3) whether certain attorneys' fees are due to claimant's former attorney. This deputy adopts and incorporates by reference the decision of Deputy Industrial Commissioner Mike Trier which was filed on April 27, 1989. In that decision, Deputy Trier awarded claimant a 50 percent permanent partial disability. Page 2 findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant has not returned to any type of gainful employment since the date of her arbitration hearing. At the review-reopening hearing, she appeared using crutches to assist her with walking. Claimant testified she could not step on her right foot without pain and she experienced numbness in her right leg. Claimant alternated standing and sitting throughout the duration of the hearing. Claimant testified she had been wearing a body cast from beneath her breasts down to her knees. She stated the purpose of the cast was to stabilize her spine, but that the cast did not aid her and that on March 27, 1991, she had her brother slit the cast open and remove it from her body. Claimant testified she could not walk without limping. She also testified she experienced back problems on a daily basis and that she took the following medications for her back pain: 2-3 Percodan per day and 3 Xanax per day. Claimant testified she is depressed because of her back pain and because of other factors unrelated to her work injury. Claimant attempted counseling on a minimal basis. She also attempted to take an antidepressant but it upset her stomach and claimant discontinued its use. Claimant also discontinued all counseling. Richard F. Neiman, M. D., claimant's treating physician, testified that as of March 29, 1990, claimant was about the same as before as far as her level of back dysfunction was concerned (Exhibit F, page 256, lines 20-23, page 257, lines 1-7. Dr. Neiman, in his deposition of March 25, 1991, rated claimant as still having a 20 percent functional impairment. This was the same functional impairment rating he had assessed prior to claimant's arbitration hearing. Dr. Neiman opined claimant was unable to return to work as of March of 1991. However, he indi cated his opinion was subject to change given the success of the body cast he had prescribed for claimant. Claimant testified at the review-reopening hearing there were no jobs she could perform. She stated she could not work as a dental assistant or a drafts person, even though she had previous experience in those occupations. Claimant made no attempts to seek employment. She did not seek any retraining nor did she participate in vocational rehabilitation. Defendants offered no rehabilitation to claimant. conclusions of law The case law relating to review-reopening proceedings Page 3 is rather extensive. The opinion of the Iowa Supreme Court in Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940) stated "that the modification of...[an] award would depend upon a change in the condition of the employee since the award was made." The court cited the law applicable at that time which was "if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded" and stated at 1038: That the decision on review depends upon the condition of the employee, which is found to exist subsequent to the date of the award being reviewed. We can find no basis for interpreting this language as meaning that the commissioner is to re-determine the condition of the employee which was adjudicated by the former award. The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957) cited prior decisions and added a new facet to the review-reopening law by stating at page 69: But it is also true that unless there is more than a scintilla of evidence of the increase, a mere difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury would not be sufficient to justify a different determination by another commissioner on a petition for review-reopening. Such is not the case before us, for here there was substantial evidence of a worsening of her condition not contemplated at the time of the first award. In a somewhat analogous vein, the Iowa Court of Appeals held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening petition may allow a change in compensation when a claimant has failed to improve to the extent initially anticipated. A major pronouncement came in the case of Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). The opinion there, at 732, stated that "[o]n a review-reopening hearing claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that accorded by a prior agreement or adjudication." The opinion went on to discuss the common understanding that "if a claimant sustained compensable injuries of which he was fully aware at time of prior settlement or award, but for some unexplainable reason failed to assert it, he cannot, for the first time on subsequent review proceedings, claim additional benefits." The opinion continued at 733 "[b]ut according to the apparent majority view, if a claimant does not know of other employment connected injuries or disability at time of any prior agreement or adjudication, he is not ordinarily barred from later asserting it as a basis for additional benefits." The court went on to hold at 735 that "cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence, sometimes referred to as a substantive omission due to mistake, at time of any prior settlement or award." Page 4 Each of these cases rest upon some disparity between claimant's actual or anticipated physical condition at the time of the previous assessment and the physical condition which exists at the time of the review-reopening proceeding. Thus, the question initially becomes has claimant established a change in his physical condition since the time of the former proceeding. The required change of condition to satisfy the requirements of review-reopening need not rest solely upon a change of physical condition if economic hardships causally related to a compensable injury but not contemplated within the initial award or agreement are demonstrated. An increase in industrial disability may occur without a change in physical condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question thus secondarily becomes whether or not claimant's industrial disability has changed. With respect to the instant case, claimant failed to prove she had a change of condition not reasonably contemplated by the parties at the time of the arbitration hearing. Claimant's functional impairment rating from Dr. Neiman remained 20 percent. Claimant, at the time of the original hearing, had not returned to her position with defendant-employer. Nor had claimant even sought other employment either prior to the arbitration hearing or subsequent thereto. Dr. Neiman indicated claimant was about the same after years of treatment by him. Basically claimant's condition remained unchanged. Her physical capabilities in April of 1991, were equal to those capabilities which she possessed on the day of the arbitration decision. There was not a change of physical condition. While it is acknowledged that claimant is restricted, she is still capable of working at various secretarial positions. Claimant has prior experience as a receptionist. She is not totally disabled. She is not especially motivated to find employment, or to engage in the various modalities prescribed by her treating physicians, including psychiatric treatment. Claimant seems content to take medication and to fixate upon her pain. Her motivation is minimal at best. She has not had a change in earning capacity. When all of the factors of industrial disability are considered, it is determined that claimant's permanent partial disability remains at 50 percent. There has not been a change in claimant's economic condition. The next issue to address is whether certain medical expenses are attributable to the claimant's original work injury. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital Page 5 services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27.; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review decision 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Constr. Specialists, Inc., file number 850096 (Appeal Decision 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App. 1983). In the case at hand, it is determined that defendants are responsible for all bills relating solely to the low back. Those bills which relate to the low back and to the neck, or to the low back and to the carpal tunnel syndrome, are assessed to defendants at 50 percent of the total charge. In light of the above, the defendants are responsible for: HOSPITALIZATION CENTER 1 BED $ 117.50 CENTER 1 BED 117.50 CENTER 1 BED 117.50 CENTER 1 BED 117.50 CENTER 1 BED 117.50 CYCLOBENZAPRINE 9.75 ALPRAZOLAM TAB 1 3.00 CYCLOBENZAPRINE 5.85 ALPRAZOLAM TAB 1 1.50 CYCLOBENZAPRINE 1.85 ALPRAZOLAM TAB 1 .75 XRAY LUMBAR SPEC 55.30 CAT SPINE 466.60 MED-SURG SUPPLIE 4.25 MED-SURG SUPPLIE 7.08 LAB HEMATOLOGY 8.52 LAB URINALYSIS 5.67 LAB CHEMISTRY 12.95 PHYSICAL THERAPY 24.35 PT ULTRA SOUND 2.18 Page 6 PT HUBBARD TANK 6.48 PT MASSAGE 1.18 PHYSICAL THERAPY 24.35 PT ULTRA SOUND 2.18 PT LARGE WHIRLPO 8.65 PT HOT PACKS 1.18 PT MASSAGE 1.18 PT HUBBARD TANK 6.47 PHYSICAL THERAPY 24.35 PT LARGE WHIRLPO 4.33 PT ULTRA SOUND 2.18 PT HOT PACKS 1.18 PT MASSAGE 1.18 PHYSICAL THERAPY 24.25 PT LARGE WHIRLPO 4.33 PT ULTRA SOUND 2.18 PT HOT PACKS 1.18 PT MASSAGE 1.18 PHYSICAL THERAPY 37.13 PT ULTRA SOUND 2.18 PT LARGE WHIRLPO 4.38 PT HOT PACKS 1.18 PT MASSAGE 1.18 PT INSTRUCTION 2.25 ELECTROCARDIOGRA 16.80 STEINDLER ORTHOPEDIC CLINIC 160.00 (100% BACK) 265.00 UNIVERSITY OF IOWA HOSPITALS 62.47 (WINSTON BARCELLAS, M.D.) 45.00 TOWNCREST X-RAY DEPT. 10.00 (LOW BACK AND 38.50 LEFT FOOT) 85.50 MERCY SERVICES (2-28-89) 424.06 (LUMBAR TRACTION, PELVIC BELT) RICHARD F. NEIMAN, M.D. (50% BACK FROM 8-18-88 TO 3-19-91) 01-03-89 17.50 01-30-89 15.00 02-14-89 17.50 04-06-89 50.00 04-06-89 62.50 04-13-89 20.00 06-15-89 20.00 Page 7 08-31-89 20.00 11-30-89 20.00 03-01-90 20.00 06-28-90 20.00 09-27-90 20.00 02-13-91 20.00 HAWKEYE REHABILITATION (50% BACK) 164.00 VINOD BHATARA, M.D (50% BACK PAIN) 90.00 SE IA MENTAL HEALTH 57.75 (50% BACK) J.C.N. BRAUN, M.D. 185.00 (50% BACK) Page 8 K-MART PHARMACY 59.52 8-1-88 TO 11-23-88 (PAID BY CLAIMANT) (50% BACK) WALMART PHARMACY 43.14 (50% BACK) (PAID BY CLAIMANT) SHORES PHARMACY 33.92 (50% BACK) (PAID BY CLAIMANT) APATHECARY-24 98.25 (50% BACK) (PAID BY CLAIMANT) WALGREEN COMPANY 239.76 (50% BACK) (PAID BY CLAIMANT) OSCO DRUG 1,013.70 (50% BACK) (PAID BY CLAIMANT) MILEAGE FOR 13 MEDICAL TRIPS TO 202.02 IOWA CITY & RETURN: (PAID BY CLAIMANT) 74 X 2 = 148 X 13 X .21 = 404.04 2 The final issue addresses attorneys' fees for claimant's former attorneys. The issue was not listed as a disputed issue on the prehearing report of October 26, 1990. Nevertheless, at the start of the hearing, claimant's former attorney requested this deputy to grant their Application for Approval of Fees. In support of their application, the attorney cited their detailed records of time spent, at the requested hourly rates, plus costs incurred. Claimant presented no evidence in response. The matter was taken under advisement, but no ruling was made at that time. Then upon review of the file by the undersigned in September of 1991, this deputy noted the matter was preheard on August 8, 1991, before the prehearing deputy and the matter was set for hearing in Burlington, Iowa on October 3, 1991. Since the same deputy will be hearing the case in October, pursuant to the August 12, 1991 prehearing report, a decision on this issue is reserved for a later date. It appears this is the classic case of the right hand not knowing what the left hand is doing. Page 9 The undersigned apologizes for any inconvenience this may have or will have caused the parties. The matter will be taken up on October 3, 1991. order IT IS THEREFORE ORDERED: defendants pay reasonable and necessary medical expenses as detailed in the aforementioned pages. This sum totals three thousand two hundred eighty-nine and 99/l00 dollars ($3,289.99). IT IS FURTHER ORDERED THAT: defendants pay claimant one thousand four hundred eighty-eight and 29/l00 dollars ($1,488.29) as reimbursement for prescription medications and two hundred two and 02/l00 dollars ($202.02) for transportation expenses under the provisions of Iowa Code section 85.27. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to rule 343 IAC 4.33 including the following costs: 1. filing fee $ 65.00 deposition cost 195.35 deposition fee R. F. Neiman, M.D. 150.00 $410.35 IT IS FURTHER ORDERED THAT: defendants file claim activity reports as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 10 Copies To: Mr. Alan N. Waples Attorney at Law 507 Tama Bldg Burlington IA 52601 Mr. Elliott R. McDonald, Jr. Attorney at Law P O Box 2746 Davenport IA 52809 Mr. Robert A. Engberg Attorney at Law 321 N Third St Burlington IA 52601 51402.40, 51803, 52206 54100 Filed April 27, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHERRY MEARS, Claimant, File No. 82307l vs. A R B I T R A T I O N ALDI BENNER, (ALDI, INC.), D E C I S I O N Employer, and CNA INSURANCE COMPANIES, Insurance Carrier, Defendant. 51402.40, 51803, 52206, 54100 Claimant had a preexisting spina bifida occulta which was permanently aggravated by lifting at her place of employment. She was rated at 20% permanent impairment by her treating physician and had not resumed any gainful employment. Claimant had medically-imposed restrictions against lifting more than 15 pounds, flexing, extending, rotation of her body and also against prolonged sitting or prolonged standing. Claimant awarded 50% permanent partial disability. Claimant held not totally disabled as she had claimed. The odd-lot doctrine was not applied since claimant had not made bona fide efforts to obtain employment. 2905 Filed September 17, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : SHERRY MEARS, : : Claimant, : : vs. : : File No. 823071 ALDI BENNER (ALDI, INC.), : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2905 Claimant did not prove a change of condition. There was no evidence of a physical change of condition. Claimant's treating physician opined claimant was about the same since prior to the arbitration hearing. Likewise, there was no evidence of a non-physical change of condition. Claimant had still made no effort to seek a job or to obtain retraining. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SHERRY MEARS, Claimant, File No. 823071 vs. R E V I E W - ALDI-BENNER COMPANY, R E O P E N I N G Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Sherry Mears, claimant, against Aldi-Benner Company (Aldi, Inc.), employer, and CNA Insurance Companies, defendants, for the recovery of further workers' compensation benefits as the result of a work injury on November 18, 1985. Prior arbitration and review-reopening decisions for this injury were filed on April 27, 1989 and September 17, 1991 respectively. The arbitration decision was not appealed and the review-reopening decision was sustained on appeal. On April 19, 1995 a hearing was held on a second review-reopening petition filed by claimant and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, it was stipulated that the providers of the requested medical expenses would testify as to their reasonableness and defendants are not offering contrary evidence. Defendants also indicate in the report that causal connection of the requested medical expenses to a condition related to the original injury is in dispute. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to additional disability benefits. II. The extent of claimant's entitlement to further medical benefits and any penalty for failure to pay medical benefits under Iowa Code section 86.13. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross- examination as to the extent of the injury and disability. From her demeanor and mannerisms while testifying, claimant is found credible. The original work injury involved the low back which occurred when claimant, Sherry Mears, was lifting a box while performing her manual labor job at one of Aldi's warehouse facilities. Sherry's primary treating physician since 1986 has been and continues to be Richard Neiman, M.D., a neurologist from Iowa City, Iowa. Although claimant had prior-existing congenital back problems, it was found in the arbitration decision, based upon the views of Dr. Neiman, that the injury permanently aggravated this condition. It was further found that this aggravation, at that time, caused a 50 percent loss of earning capacity. The review-reopening decision found that claimant's condition had not changed and further benefits were denied. As aptly set out in her attorney's brief and argument, claimant presented evidence on the following concerns raised by defendants and the deputy commissioner who previously denied benefits in the review-reopening decision: 1. Change of Physical Condition Defendants argue that there has been no change in the impairment rating and work restrictions imposed by Dr. Neiman since the last proceeding in 1991. This is not the case. Although in his August 1994 report, he again rates claimant as having a 20 percent impairment to the body as a whole under the AMA Guides, he goes on to state as follows: "I think frankly that she has increasing difficulties as far as the degenerative changes in the back and should be given a higher impairment as far as industrial impairment" (Exhibit 1). The undersigned interprets this statement to mean that claimant is less able to perform work. Also, Dr. Neiman's work restrictions are more restrictive. Before, there was only a general restriction against lifting over 15 pounds with no flexion, extension or prolonged sitting or standing. Today the restrictions consist of no lifting greater than 5-10 pounds repetitively and no more than 15-20 pounds every four hours with only sitting or standing of 1 hour at a time. Starting in 1993, Dr. Neiman began issuing reports clearly stating that Sherry's condition had worsened and that MRI tests indicated a more noticeable deterioration in her condition. He states in his last report of March 1995 that there is "no question" that Sherry had worsened over the years. All of Dr. Neiman's views herein are uncontroverted in the record. At the time of the last review-reopening, Dr. Neiman stated that although claimant was not then able to work, this view could change depending upon the outcome of the body cast therapy. It may be true that the body cast had been removed at the time of the last hearing. However, the removal had only been shortly before the hearing and the long-term effect of the cast had yet to be assessed. It can now be clearly found that the body cast was not of any benefit. Claimant now has chronic pain syndrome with depression, all causally related to the pain brought on by the original aggravation injury according to the March 30, 1995 report of Dr. Neiman. This pain syndrome further aggravates the back disability. Therefore, it is found that there has been a material worsening of claimant's physical and mental condition since the last review-reopening. 2. Refusal of Treatment Although Sherry consented to epidural steroid injection therapy on one occasion in the past, she refused a second procedure at the time of the last proceeding. However, since then, Sherry has underwent a second steroid injection without obtaining any lasting improvement and no further treatments are recommended. 3. Use of Medication Dr. Neiman, over the years, has continued to express concern over Sherry's reliance on medication and has counseled her on this problem. This was noted by the deputy in the review- reopening decision. Apparently, in January 1992, claimant ceased use of Percodan and she was congratulated at the time by Dr. Neiman for doing so. However, at hearing, she testified that she has again resumed its use. Obviously, she is working with Dr. Neiman but her efforts to date have failed largely due to the continued lack of success in reducing her symptoms with other forms of treatment. 4. Lack of Motivation As strongly noted in the review-reopening decision, Sherry was not found motivated to find suitable work despite being found capable of secretarial and receptionist work. Indeed, at that time she had not made any effort to seek suitable work. However, unlike before, Sherry has now made a considerable effort to find suitable work. She has been in contact with the Iowa Vocational Rehabilitation counselors who have made no recommendation other than that she attend a pain clinic. She has unsuccessfully applied for all forms of work including secretarial work in the geographical area of her residence. Between November 1993 and the spring of 1994, she made a good attempt to work part-time at a restaurant first as a waitress and then as simply a hostess. Despite accommodations by this employer, claimant was compelled by her continued pain to end this employment. Sherry's employer testified at hearing that she was a valued employee but that her inability to physically handle the work, even the hostess work which only required sitting or standing, was readily apparent to him. Sherry now is 42 years of age. Except for her recent brief attempt at employment, she has been unemployed since the injury. Given the new restrictions imposed by Dr. Neiman against sitting or standing and her experience as a restaurant hostess, it is found that even secretarial or receptionist work is precluded from claimant. Such restrictions also preclude work as a draftsman which was found to be her most significant past employment in the original arbitration decision. Despite a wide range of jobs at Aldi to this date, Aldi has not made any effort at accommodation or to rehire her to suitable work. Defendants have not made any effort to assist in vocational rehabilitation. This is clear evidence that she is incapable of any work. From examination of all of the factors of industrial disability, it is found that as a result of the change of condition caused by the work injury of November 18, 1985, Sherry now has suffered a 100 percent loss of her earning capacity and is unemployable. Although Dr. Neiman has opined that 20 percent of her disability is related to the non-work related neck condition caused by a 1986 auto accident, defendants have not shown by the evidence that this neck condition independently produces disability, separate from the back condition. The disability rating of Dr. Neiman only involved the low back. The work restrictions appear to arise only from the low back condition but may overlap. However, no significant work restriction is independently caused by the neck injury. Therefore, as was done in the past, no apportionment of disability will be made for any prior neck injury. Defendants assert lack of authorization but deny causal connection and liability for the condition treated in the hearing report. It is found that all of the requested expenses, including medical mileage, are causally related to the work injury based upon the uncontroverted views of Dr. Neiman. Defendants seek to apportion out 20 percent of the bills and medication attributable to the neck condition. However, treatment for the two conditions, like their resulting disability, overlaps. Defendants have failed to show that the neck injury alone is a cause of an independent, separate treatment modality. The treatment and drugs prescribed were given to claimant simultaneously for both conditions. The evidence if anything appears to indicate that even if claimant had a healthy neck, the treatment and prescriptions would not be significantly different. Therefore, no apportionment of medical expenses will be made. CONCLUSIONS OF LAW I. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact to determine from the completeness of the premise given the expert or other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence that he suffered a change of condition or a failure to improve as medically anticipated as a proximate result of his original injury, subsequent to the date of the award or agreement for compensation under review, which entitles him to additional compensation. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978). Such a change of condition is not limited to a physical change of condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition under Iowa Code section 85.26(2) and 86.14(2). See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980). As the claimant has shown a change of condition, the degree of permanent disability must be re-evaluated pursuant to Iowa Code section 85.34(2)(u). A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors 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. See Peterson v. Truck Haven Cafe, Inc., Vol. I, No. 3 Iowa Industrial Comm'r Decisions 654, 658 (App. February 28, 1985). In the case sub judice, it was found that claimant has now suffered a 100 percent loss of her earning capacity as a result of the work injury. Such a finding entitles claimant to permanent total disability benefits as a matter of law under Iowa Code section 85.34(3) which entitles claimant to weekly benefits for an indeterminate period of time into the future during the period of her disability. Absent an improvement in her condition, this will continue for the rest of her life. Although a portion of this total disability maybe attributable to both work and non-work related medical conditions, apportionment of disability, as envisioned in Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984), is not appropriate or possible in a permanent total disability case. This is so because the benefits are not payable for a definite time period under Iowa Code section 85.34(2) but are paid to claimant indefinitely during the period of his disability under Iowa Code section 85.34(3). The change of condition since the last review-reopening decision was the proverbial "straw that broke the camel's back" and permanent total disability benefits shall be awarded accordingly. Wissler v. City of Freemont, Iowa, File No. 955181 (App. February 22, 1993); Auton v. The Celutex Corporation, File No. 873898 (App. May 27, 1993). Furthermore, in any event, apportionment of disability between a preexisting condition and an injury is proper only in those situations where a prior injury or illness "unrelated to employment independently produces some ascertainable portion of the ultimate disability." Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990), Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Also, once claimant establishes a causal connection between the claimed disability and the work injury, claimant does not have the burden to establish the lack of a preexisting disability. The burden of persuasion shifts to defendants to establish such a preexisting disability for purposes of apportionment. There is no agency precedent as to this precise point of law. However, drawing from the general law of torts, the undersigned believes that the correct law is that claimant has no such additional burden after establishing a prima facia case for disability. The plaintiff, in a personal injury case, is not normally charged with a burden of proof as to the actual apportionment of damages. Any burden of that nature must be assumed by the defendant since the defendant is the party standing to gain by litigating the apportionment issue. 2 Damages in Tort Actions, 15.34(1)(a); Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973). If no apportionment can be made the defendants are responsible for the entire damage. Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976). IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Defendants first assert lack of authorization for the requested expenses. However, this agency has held that it is inconsistent to deny liability and the obligation to furnish care on one hand and at the same time claim a right to choose the care. Kindhart v. Fort Des Moines Hotel, I Iowa Industrial Comm'r Decisions No. 3, 611 (App. 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Comm'r Report 16 (App. 1981). Also, defendants seek apportionment of expenses despite the fact that all of the treatment overlaps and that the treatment given and drugs prescribed were for both work and non work- related conditions provided simultaneously. Absent a showing that the non work-related condition independently requires separate treatment and medication, apportionment is not appropriate and will not be made in such circumstances. However, as agreed by claimant, no award can be made for medical expenses outstanding or unpaid at the time of the last review-reopening proceeding. Claimant also seeks a penalty under Iowa Code section 86.13 for an unreasonable nonpayment of medical expenses. Such a remedy is not available to claimant. The provisions of Iowa Code section 86.13 and 85.30 allowing the commissioner to award penalties or interest for delays in payment are only applicable to weekly benefits, not medical expenses. Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986). ORDER 1. Defendants shall pay to claimant permanent total disability benefits at a rate of one hundred seventy-three and 30/l00 dollars ($173.30) per week from the date of this decision for an indefinite period of time into the future during claimant's disability. 2. Defendants shall pay the medical expenses listed in the attachments to the hearing report which have been incurred by claimant since the last review-reopening decision, including the listed medical mileage to be reimbursed at the rate of twenty- four cents ($.24) per mile. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1995. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Newell Attorney at Law 323 E Second St Muscatine IA 5276l Mr. Elliott R. McDonald, Jr. Attorney at Law PO Box 2746 Davenport IA 52809 1200 Filed June 1, 1995 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SHERRY MEARS, Claimant, File No. 823071 vs. R E V I E W - ALDI-BENNER COMPANY, R E O P E N I N G Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ 1200 - Apportionment of Disability and Medical Expenses Denied. Apportionments of disability and medical expenses were denied as the non work-related condition did not independently produce separate or distinct disability or treatment. Both the disability and treatment for the work and non work-related conditions overlapped.