BEFORE THE IOWA INDUSTRIAL COMMISSIONER ANN K. SHOULTZ, Claimant, vs. File Nos. 823431 & 878976 LUTHERAN HOME, A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding brought by Ann K. Shoultz, claimant, against Lutheran Home, employer, and Home Insurance Company, insurance carrier, defendants. These cases come upon petitions for arbitration for benefits as a result of alleged injuries occurring on May 18, 1985 and July 7, 1986. The cases were heard by the undersigned in Davenport, Iowa and they were considered fully submitted at the completion of the hearing. The record consists of the testimony of Ann K. Shoultz, Fern Katherine Werning, Administrator of Lutheran Home, and Melodie Ann Schutt. The record also consists of joint exhibits 1-38A, claimant's exhibits 39 and 40, and defendants' exhibits 41-45. All exhibits are admitted as a part of the record. ISSUES The issues presented by the parties are as follows: 1) Whether claimant received an injury which arose out of and in the course of her employment; 2) Whether there is a causal connection between the alleged injuries and the disability; 3) Whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and, 4) Whether claimant is entitled to reasonable and necessary medical benefits. FACTS PRESENTED Claimant was employed as a nurse's aide for defendant at the time of the injuries on May 18, 1985 and on July 7, 1986. In both instances, claimant was struck by patients of defendant's. In the first situation, claimant was hit on the right side of her SHOULTZ V. LUTHERAN HOME PAGE 2 face, near her jaw. In the second situation, claimant was struck on the left side of her jaw. At the time of the injuries, claimant was working on a part-time basis. She reported that from 1980 through 1985, she was working between 16 to 24 hours per week. Claimant terminated her employment in December of 1987. She was earning $6.58 per hour. Approximately four months after the date of the first injury, claimant sought the treatment of her family dentist, James T. Gimbel, D.D.S. Claimant voiced problems with her right jaw popping and clicking, and difficulties with closing her jaw. Dr. Gimbel referred claimant to Laurence R. Huber, D.D.S., a specialist in Prosthodontics in May of 1986. Dr. Huber then recommended claimant to Deborah L. Zeitler, D.D.S., an assistant professor in the Department of Hospital Dentistry, Division of Oral & Maxillofacial Surgery, University of Iowa Hospitals and Clinics. According to Dr. Huber: At the time that I saw Ms. Shoultz, it appeared to me that she had bilaterally anterior displaced disc with an occasional closed lock condition. I felt that the chances of surgery being indicated were great and that she best be seen in Iowa City. Claimant was seen by Dr. Zeitler in May of 1986. On June 11, 1986, claimant underwent arthrography of both temporomandibular joints. The arthrography, according to Dr. Zeitler, showed that: ... The diagnosis confirmed radiographically is anterior displacement of the meniscus without reduction of both temporomandibular joints. This is an anatomical disorder which can not be treated without surgery. The surgical procedure required to treat this problem is a bilateral temporomandibular joint arthropiasty which will involve either repositioning the meniscus on each side of her temporomandibular joint or removing it and replacing it with an implant.... The surgery was performed on August 7, 1986. Medical expenses were not paid by defendants. Immediately after the surgery, Dr. Zeitler found: I just completed Ms. Ann Shoultz's jaw surgery to reposition the cartilage within her jaw joints bilaterally. The findings at the time of surgery were anterior displacement of the meniscus on both sides of her temporomandibular joint without significant adhesions or bony abnormalities. The cartilage was easily moved into it's [sic] proper position and maintained there with sutures. There were no findings that would specifically support your contention that her jaw problems were related to a blow she received in May 1985. There were also no specific findings that would refute that contention. This is not unusual in the type of problem that Ms. Shoultz has. The reaction of the jaw joint to an injury is nonspecific and can result in the same SHOULTZ V. LUTHERAN HOME PAGE 3 appearance whether she had a blow from a patient at her nursing home or any other kind of injury. In a letter dated March 20, 1987, Dr. Zeitler discusses permanent impairment. She states to claimant's attorney: The next problem that I would like to address is that of permanent impairment. Ms. Shoultz can be considered to have permanent impairment of her jaw function with the expection [sic] for occasional exacerbation of pain and limitation of range of motion. Her function at this point in time is approximately 70% of normal. This estimate is based on maximum opening and lateral and protrusive movements of the jaw. She also is experiencing permanent impairment as regards to her dietary restrictions. Her chewing ability is limited to that of a soft diet and may permanently be so. Certainly such foods as tough meat and moderate to large amounts of raw vegetables can not [sic] be expected to be a part of her diet on a regular basis for the rest of her life. In December of 1987, Dr. Zeitler again evaluated claimant. She reports in her letter to claimant's attorney: I have studied the guide to "The Evaluation of Permanent Impairment" second edition published by the American Medical Association. I think there are several areas in this guide which are significant in Ann Shoultz's case. The first significant point is restriction of diet. When the diet is limited to semisolid or soft foods the percent of impairment of the whole person is 5-10%. This is true for Mrs. Shoultz. The second significant point involves limitation of range of motion. Ann Shoultz's range of motion of approximately 50% of what would be normal for the mandible. Unfortunately, range of motion of the mandible, as far as I can find, is not specifically rated in this guide book. However, range of motion of many other joints is discussed and there are various degrees of impairment due to loss of mobility of all the other joints. I feel that if the range of motion of the mandible is impaired approximately 50% we should consider this at least a 5% impairment of the whole body. Thirdly, Ann Shoultz has chronic pain. Again temporomandibular joint is not specifically addressed in this manual, however, pain due to cranial nerves and spinal nerves is addressed and in Ann Shoultz's case I believe that her chronic pain should result in a functional impairment of the body at whole of at least 5%. In combining these values you would have to consider then that the impairment of the body at [sic] whole in Ann Shoultz is between 15 and 20%. In August of 1988, Dr. Zeitler again reaffirms her impairment rating. She writes: I have reviewed my estimation of full body impairment in this case and have thoroughly re-evaluated this. I believe that my estimation of whole body impairment which was earlier stated to be between 15-20% is still accurate. This estimation was based on the guide to "The Evaluation of Permanent Impairment" second edition SHOULTZ V. LUTHERAN HOME PAGE 4 published by the American Medical Association. It is difficult to use this guide to judge impairment in cases of temporomandibular joint disease because it does not address this type of problem specifically. However, I have done the best that I can do in relating the guidelines within this document to cases of temporomandibular joint disease. The guideline does include a factor for impairment due to limitation of diet and certainly Ms. Shoultz has significant dietary restrictions. Chronic pain is also addressed in the manual in relationship to pain due to cranial and spinal nerves. The temporomandibular joint has the same type of chronic pain that occurs in other types of functional impairments. In combining these estimates I believe that a 15-20% range for permanent functional impairment is accurate in Mrs. Shoultz's case. Defendants requested a second opinion by another dentist. Claimant was examined and evaluated by Charles E. Newcomer, D.D.S. He provided the subsequent information to defendants' attorney in a letter dated July 22, 1987. He writes: By Ann's description she had jaw and neck pain following the accident. This included severe jaw pain with movement and chewing and severe, prolonged headaches. The neck pain may have been the result of the accident or may be a secondary involvement from the spasm and bracing and posturing of the jaw muscles. Neck pain, and jaw pain are very commonly associated clinically. Clinical Findings: 1. Limited jaw opening. Relaxed opening was 13mm. Forced opening was 19mm with pain. Normal opening should be 45mm to 55mm. There was also limited and gaurded [sic] movement with right and left movements. 2. Very severe pain upon palpation of the joint capsule lateral to the joint right and left. This is probably caused by dysfunction internal to the joint creating inflammation to the highly innervated capsule. 3. Very mild pain of a few of the jaw muscle upon palpation. The masseters, and the lateral pterygoids were the involved muscles. Probably not signifiant [sic]. 4. Mild pain of some of the neck muscle to palpation. The sternoclidomastoid [sic] and the splenius.capitus [sic]. Probably not significant. 5. No problems with the teeth and functional occlusion were evident from an initial examination. No prematurities were evident with all the functional movements. 6. Headaches are not being experienced for which Ann was very grateful. 7. No dissatisfaction was expressed by Ann regarding her TMJ condition. She felt she was much better following the surgery and that she could live with the situation as things are at present. 8. She has recurrent problems with the neck muscles. When she was under the care of a physical therapist she was much improved and he taught her many things to control the neck pain. Because of the cost she does not feel she can continue with the physical therapist. In a follow-up letter dated April 14, 1988, Dr. Newcomer SHOULTZ V. LUTHERAN HOME PAGE 5 writes: Ms. Kelly has asked me to review the disability rating given Ms. Shoultz by Dr. Zeitler. I have read the Forward and the Preface to the "Guides to the Evaluation of Permanent Impairment" published by the American medical Association. I understand the need for such a quantifing [sic] guide, but it does not address tempromandibular [sic] joint impairment at all well. I agree with Dr. Zeitler that Ms. Shoultz has a limited range of motion of the joint. I question that this represents 5 - 10% whole body impairment. If she were an opera singer or a violin player this lack of range or joint tenderness might interfer [sic] with her work. I do not clearly understand what the function of lifting has to do with the tempromandibular [sic] joint. There is a certain amount of "bracing" or bringing the teeth tightly together when strenuous muscle work is done. This should not be harmful to the joint, however. As to what the rating should be, I have no idea. The same is true of limitation of diet. How this limitation of diet is related to whole body impairment is not addressed that I could find. I also question impairment as related to chronic pain. The distinction between medical impairment (i.e. pain) and disability should not be confused. It is my understanding chronic pain should not have a whole-body rating unless the interference with work is direct. ... Most tempromandibular [sic] joint patients who have been treated with splints, or with surgery, or a combination show improvements. Many studies of people who are out of treatment five years or so show that approximately 90% show improvement to a point where they can comfortably live with the problem. This means 10% stay the same or are worse. The majority have episodes when some of the symptoms return. Claimant returned to work on or about January 1, 1987, per the written instructions of Donald M. Primky, D.D.S. However, claimant testified that when she would bend over or when patients would grab her around the neck, her face would swell and she would experience pain. Because of these complications, claimant was referred to David Scott, P.T., by her doctors at the University of Iowa. Claimant reported she received physical therapy on an intermittent basis until December of 1987. A restricted release for work was issued by Dr. Zeitler. According to her letter of May 14, 1987: Due to Ann Shoultz's jaw problem, I have recommended that she not be employed in a position in which a patient might accidentally hit her jaw or in a position where she is required to lift heavy articles. Specifically transferring patients, lifting heavy loads of laundry or lifting heavy pots of food. This most likely would include any items that weigh greater than 25 pounds. SHOULTZ V. LUTHERAN HOME PAGE 6 As of July 6, 1987, Dr. Zeitler lifted some of the restrictions placed upon claimant. Dr. Zeitler writes: I am writing this letter to indicate that Ann Shoultz [sic] condition has improved to the point where she may lift 50-75 pounds if necessary for her work. I believe that she can return to work at this time if an appropriate position is available. However, we do believe that lifting and transferring patients was a major problem with jaw dysfunction and still needs to be avoided. Claimant's work restrictions were again modified by Dr. Zeitler on August 17, 1987. Dr. Zeitler explains: On recent re-evaluation of Ann Shoultz it appears that her temporomandibular joint problem has improved sufficiently, and that her work restrictions may be modified. At this time I think it is safe for Ann Shoultz to work in either a dietary or laundry capacity with the ability to lift up to 75 pounds of weight during her work assignment. I believe that she should avoid direct contact with patients who are known to be uncontrolled or potentially violent. This would probable [sic] limit her from working in a direct patient care assignment. From May of 1987 until August of 1987, claimant remained at SHOULTZ V. LUTHERAN HOME PAGE 7 home. She testified she was unable to perform the lifting required by her position. Claimant was transferred to the kitchen as a dietary aide that August. Her job duties included cleaning and setting tables, serving trays of food, lifting bus pans and sweeping. Claimant held that position until she terminated on December 7, 1987. Claimant reported she was having problems with her jaws at that time. Melodie Ann Schutt, dietary director, testified for defendants. Ms. Schutt supervised claimant while claimant was employed in the kitchen. Ms. Schutt testified claimant was an excellent employee who tried hard and caught onto new tasks quickly. According to Ms. Schutt, claimant's job responsibilities involved wiping counters, cleaning shelves while standing on stools, cleaning dining tables and chairs, sweeping, lifting 8 to 20 pound dish pans and occasionally putting away groceries, including 50 pound sacks of potatoes. Ms. Schutt reported she never asked claimant to resign but Ms. Schutt was aware claimant had voiced difficulties with her neck and shoulders. Fern Katherine Werning, home administrator, testified for defendants. Ms. Werning testified she asked claimant to resign at one point because she feared residents would reinjure claimant. Ms. Werning did permit claimant to transfer to the dietary department. Ms. Werning reported claimant worked out well in the dietary department and claimant was not terminated by defendant. After claimant terminated her employment, she remained unemployed until June of 1988 when she was employed at Sears for one month. Claimant worked for minimum wage as a sales clerk. According to claimant, it was not financially advantageous for her to pay a babysitter while she worked 10 to 15 hours per week. Since her monthlong employment at Sears, claimant has looked for employment as a teacher's aide and for full time employment at various department stores. Claimant has also reported she wanted to attend classes in the fall of 1988 but her husband had had emergency surgery and she was financially unable to take word processing classes. Currently, claimant is unemployed. At the hearing she testified she is still having problems. According to claimant, if she talks too much, her jaw hurts. If she bends and stoops, she has trouble with her face. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received injuries on May 18, 1985 and July 7, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of May 18, 1985 and July 7, 1986 SHOULTZ V. LUTHERAN HOME PAGE 8 are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 861 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). 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, 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, 261 Iowa 352, 154 N.W.2d 128 (1967). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 197 ), Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 615, 106 N.W.2d 591 (1960). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 16 N.W.2d 569 SHOULTZ V. LUTHERAN HOME PAGE 9 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). As a 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." The opinion of the supreme court in Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, . cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Section 86.13 of the Iowa Code provides in relevant portion: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Under section 86.13 benefits are not awarded for medical expenses. The section 86.13 benefits are only applicable to weekly compensation benefits. Zahn v. Iowa State Men's Reformatory, IV Iowa Industrial Commissioner Report 409 (1983). If it is alleged that an employer wrongfully withholds weekly compensation benefits from a claimant, the claimant must establish the benefits were withheld unreasonably in order for the claimant to receive additional benefits under section 86.13. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88 at 93 (1983). In a previous decision before the Division of Industrial Services, a hearing deputy ruled that it was reasonable for an employer to withhold benefits when the employer was not alerted to occurrences which would notify a reasonable person that benefits would be due or when there was no work time lost. McCormack v. Sunsprout, I-1 Iowa Industrial Commissioner Decisions 142 at 144 (1984). In a separate decision before the Division of Industrial Services, the same deputy industrial commissions: awarded SHOULTZ V. LUTHERAN HOME PAGE 10 benefits under section 86.13. Here there was an unreasonable delay since there were no contradictions in the claimant's claim. Willis v. Ruan Transport Corporation, IV Iowa Industrial Commissioner Report 395 at 396 (1984). In the Willis case at 396 the deputy wrote: ... Reports and letters from the doctor are consistent with claimant's statements regarding his injury. There were no ambiguities and inconsistencies in claimant's claim. Withholding benefits was arbitrary and unreasonable. The five percent award based on Iowa Code section 86.13 will be attached to healing period only. Although the evidence presented clearly relates claimant's permanent impairment to his injury, defendants will be given the benefit of the doubt as to whether or not a failure to pay permanent disability also was unreasonable. Claimant had prior back troubles and conceivably some portion of his impairment might have been related to those difficulties or to a preexisting arthritis rather than to his injury. ANALYSIS Claimant has met her burden of proving a causal connection between the injuries she received on May 18, 1985, and on July 7, 1986, and the disability on which she now bases her claim. Claimant was struck on both sides of her jaw. She testified she experienced subsequent popping, clicking and pain. Dental records prior to the date of the first injury do not reflect preexisting jaw problems. Neither Dr. Zeitler nor Dr. Newcomer can refute the injury was work related. Defendants have been unable to establish another cause of the injuries. While defendants allege a preexisting condition and, there is some evidence to indicate that generally speaking women in their thirties may encounter temporomandibular joint (TMJ) problems, the record is devoid of any evidence that claimant was predisposed to such a condition. However, even if the record does establish claimant had a preexisting condition, she is not precluded from a work connected aggravation. Claimant has demonstrated the requisite causal connection. Of next concern is whether claimant's treatment, including surgery, was authorized and necessary. It is undisputed claimant's dentists were not selected by defendants. It is also undisputed various medical expenses have not been paid by defendants. However, unauthorized treatment which improves an employee's condition and which ultimately may mitigate the employers liability may subsequently be found reasonable and necessary for treatment of an injury. Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (Appeal Decision 1983); Rittgers v. United Parcel Service, III Iowa Industrial Commissioner Report 210 (Appeal Decision 1982); Hutchinson v. American Freight Systems, Inc., I-1 Iowa Industrial Commissioner Decisions 94 (Appeal Decision 1984). Dr. Huber believed surgery was necessary. He referred claimant to Dr. Zeitler. Dr. Zeitler determined claimant's condition could not be treated without surgery. Even Dr. Newcomer reports: "...If the splint treatment is not successful in relieving pain and dysfunction, then surgery is often recommended .... I do not know if any splint treatment was done SHOULTZ V. LUTHERAN HOME PAGE 11 either before or after the surgery." The surgery improved claimant's condition. The surgery was an acceptable method of treatment. It was reasonable and necessary. The medical treatment was causally connected to the injuries sustained by claimant at work. Claimant is therefore entitled to the payment of these medical expenses. Claimant has met her burden of proving she is entitled to permanent partial disability benefits. Dr. Zeitler was the treating dentist and an oral surgeon. She saw claimant on a number of occasions. While acknowledging the difficulty of using the AMA Guides to the Evaluation of Permanent Impairment, Dr. Zeitler did detail the basis for her 15 percent to 20 percent permanent impairment to the body as a whole. Such an opinion is totally consistent with Rule 343-2.4(85) of the Iowa Administrative Code (1987). Dr. Newcomer, on the other hand, only saw claimant on one occasion for purposes of examination and evaluation. Dr. Newcomer readily admits, "I know nothing of the details of the surgery, i.e. what type of derangements were found within the joint and what type of repair precedures [sic] were done." Dr. Newcomer admits: ... The exact nature of the damage to the TMJ's should be part of Ann;s [sic] medical records at University of SHOULTZ V. LUTHERAN HOME PAGE 12 Iowa Hospitals. This can best be determined by arthro grams [sic] which is radio opaque dye injected into the joint so that the internal structures of the joints can be observed while functioning. Arthrogram interpretation is difficult and requires much training and experience. I have little experience in this area." Dr. Newcomer agrees the AMA Guides do not easily address the problem of temporomandibular joint impairment. He also agrees claimant has a limited range of motion. He does refute the impairment rating provided by Dr. Zeitler. Dr. Newcomer does not provide a separate rating. He writes, "As to what the rating should be, I have no idea." The trier of fact is unable to afford much weight to the opinions of Dr. Newcomer. He was unable to provide an independent impairment rating. He did not appear to have all of claimant's medical records available with which to render his opinion. Consequently, claimant has established she has a functional impairment of 20 percent. Claimant's injury and resulting treatment were found to be causally connected to the two injuries which she sustained at work. Claimant sustained a permanent partial disability. Consequently, claimant is therefore entitled to healing period benefits. The parties have stipulated the period to be from August 6, 1986 to January 1, 1987 and from May 8, 1987 to July 6, 1987. Claimant alleges she has an industrial disability beyond the functional impairment rating of 20 percent. While it is true claimant has suffered a wage loss since the date she voluntarily terminated her employment with defendant, there is no evidence to establish claimant terminated her position because she was under medical restrictions which prohibited her from performing her tasks. Dr. Zeitler removed restrictions from claimant's work duties. The evidence establishes that claimant's superiors rated her as a good employee who performed her assigned tasks. Pursuant to claimant's requests, defendant cooperated with claimant in transferring her to a position where claimant would not have as much contact with residents of defendant's. Defendant transferred claimant at the same rate of pay claimant was earning as a nurse's aide. It was claimant's voluntary decision to terminate. She was not terminated by defendant. The record establishes that since the date of her voluntary termination, claimant has worked at Sears at minimum wage for one month. Claimant testified she also voluntarily terminated this position not because she was unable to perform the designated tasks, but because her babysitting charges made it economically prohibitive to continue her employment. Claimant has not worked since that date. Her testimony indicates she has only sought employment as a teacher's aide, made application at three department stores, applied at a weight loss clinic and at a day care center. There is no evidence to indicate claimant was refused employment because of her physical impairment or that claimant was unable to perform any of the potential job duties. In the case at hand, claimant has not met her burden of proving she has an industrial disability greater than the 20 SHOULTZ V. LUTHERAN HOME PAGE 13 percent functional impairment rating of the body as a whole. Claimant has established there is a loss of actual earnings since December 7, 1987. However, claimant has not established the loss is attributable to her injuries or to medical restrictions. Claimant likewise has not established there is a loss of earning capacity attributable to her injuries. With respect to the issue dealing with benefits under section 86.13, claimant has not met her burden of proving that defendants unreasonably withheld her weekly compensation benefits or that without probable cause, the defendants withheld the benefits. On May 18, 1985, the claimant sustained an injury arising out of and in the course of her employment. Claimant's jaw swelled and claimant left early on that evening. On her next regularly scheduled work date, claimant returned to work. There was no indication at the time of the injury that this injury necessitated medical attention. Claimant admitted she did not even mention the popping and clicking noises to her own dentist until September of 1985. Her dentist did not recommend a specialist to claimant until May of 1986. This was over a year later. Additionally, the requisite surgery was not performed until nearly 15 months after the first injury. Claimant did report her pending surgery to Ms. Werning prior to the date of the actual surgery. However, it would not be unreasonable on the part of defendants to assume the surgery was unconnected to an incident 15 months prior. Consequently, it would not be unreasonable for the defendants to deny benefits. A reasonable person could assume there would be no causal connection between a seemingly minor incident in May of 1985 and a surgery scheduled iii August of 1986. Consequently, it would not be unreasonable for defendants to deny benefits, especially since claimant had not lost work time since the date of the injury. After claimant had surgery on August 7, 1986, it still was not unreasonable for defendants to deny benefits. Dr. Zeitler, claimant's surgeon wrote: There were no findings that would specifically support your contention that her jaw problems were related to a blow she received in May, 1985. There were also no specific findings that would refute that contention. As a consequence, a reasonable person could question the causal connection and thus deny benefits under the Iowa Workers' Compensation Act. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained injuries arising out of and in the course of her employment. FINDING 2. As a result of her May 18, 1985 and July 7, 1986 injuries, claimant had TMJ surgery on August 7, 1986. CONCLUSION A. Claimant has established there is a causal connection between the injuries she received on May 18, 1985 and SHOULTZ V. LUTHERAN HOME PAGE 14 July 7, 1986 and the condition of her jaw. FINDING 3. The medical treatment including the TMJ surgery improved claimant's condition. CONCLUSION B. The medical expenses incurred were reasonable and necessary and causally connected to the injuries she sustained. CONCLUSION C. Defendants are liable for the following medical expenses: University of Iowa Hospitals $6,942.64 Medication 266.67 Physical Therapy Center 851.40 Mileage for Physical Therapy and Hospital 636.72 Total $8,697.43 FINDING 4. Claimant was off work because of her surgery from August 6, 1986 to January 1, 1987 and from May 8, 1987 to July 6, 1987. CONCLUSION D. Claimant is entitled to healing period benefits from August 6, 1986 to January 1, 1987 and from May 8, 1987 to July 6, 1987 at the weekly rate of $85.59 per week. FINDING 5. Claimant's injury on July 7, 1986 did not result in any permanent partial disability. CONCLUSION E. As a result of the May 18, 1985 injury, claimant has a functional impairment of 20 percent of the body as a whole. FINDING 6. Claimant's injury on May 18, 1985 resulted in a permanent partial disability. CONCLUSION F. Claimant has met her burden of proving she has a 20 percent permanent partial disability. FINDING 7. Employer delayed the commencement of benefits under Chapter 85 of the Code of Iowa (1987). FINDING 8. The delay in the commencement of benefits was not unreasonable. CONCLUSION G. The claimant is not entitled to additional benefits under section 86.13 of the Iowa Code (1987). ORDER THEREFORE, defendants are to pay unto claimant thirty (30) weeks of healing period benefits at the rate of eighty-five and 59/100 dollars ($85.59) per week. Defendants are to pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the rate of eighty-five and 59/100 dollars ($85.59) per week. Defendants are liable for the payment of the following medical expenses: University of Iowa Hospitals $6,774.72 SHOULTZ V. LUTHERAN HOME PAGE 15 Defendants are to pay unto claimant for reimbursable medical expenses and mileage: University of Iowa $ 167.92 Physical Therapy Center 851.40 medical prescriptions 266.67 Subtotal $1,285.99 Mileage 636.72 Total $1,922.71 Payments for accrued healing period and permanent partial disability benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. A final report shall be filed upon payment of this award. Signed and dated this 10th day of November, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Mark D. Cleve Attorney at Law P. O. Box 2746 Davenport, Iowa 52809 Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 1803 Filed November 10, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ANN K. SHOULTZ, Claimant, vs. File Nos. 823431 & 878976 LUTHERAN HOME, A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. 1803 Claimant awarded 20 percent permanent partial disability subsequent to injury resulting in functional impairment of the body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUSSELL HEATH, Claimant, File No. 823443 VS. A R B I T R A T I 0 N ARMOUR-DIAL, INC., D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Russell Heath against defendant self-insured employer Armour-Dial, Inc., to recover benefits under the Iowa Workers' Compensation Act as the result of an injury allegedly sustained on April 9, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Burlington, Iowa on April 28, 1989. The matter was considered fully submitted at the close of hearing, although both parties subsequently submitted briefs. The record in this proceeding consists of claimant's exhibits 1 through 18 (including four exhibits attached to the deposition of Jerome G. Bashara, M.D., exhibit 17), defendant's exhibits 1 through 13 and the testimony of the following witnesses: claimant; Roger Marquardt; Mary Heath; and Richard Leverington. 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 defendant at the time of the alleged injury; that claimant seeks compensation for temporary total disability or healing period from April 17, 1986 through September 2, 1986; that if permanent disability benefits are awarded, claimant has sustained an industrial disability to the body as a whole and the commencement date is September 3, 1986; that the appropriate rate of weekly compensation is $232.44; that defendant is entitled to credit under Iowa Code section 85.38(2) in the sum of $,6,182.40; that HEATH v. ARMOUR-DIAL, INC. Page 2 defendant has paid zero weeks of compensation on a voluntary basis prior to hearing. Issues presented for determination include: whether claimant sustained an injury arising out of and in the course of his employment on April 9, 1986; whether the alleged injury caused temporary or permanent disability; the extent of claimant's entitlement to compensation for temporary and permanent disability; taxation of costs. Defendant also asserted entitlement to apportionment of claimant's current disability to his preexisting condition if permanent partial or total benefits are awarded. In addition, defendant stipulated that if it be found that claimant sustained an injury arising out of and in the course of his employment as alleged, it agrees to pay claimant's medical expenses under Iowa Code section 85.27 and to reimburse claimant for those expenses he personally paid and which were not covered by his group medical insurance policy. REVIEW OF THE EVIDENCE Claimant testified that he was 51 years of age at the time of hearing, having been born on March 9, 1938. His educational background is limited to the eighth grade, although he participated in an adult education course in the state of Wisconsin for approximately three months. He did not complete the course. Claimant indicated that he found reading, writing and spelling difficult when he attended school. Even now he is unable to read a newspaper, although he can read headlines. Claimant's wife reads mail or other documents aloud to him. Claimant is unable to write so that others can understand his communication. Claimant is able to do basic arithmetic and is able to read a little at work, but is unable to follow "formulating" recipes. Claimant's work history includes working on his father's farm and employment for some 30 years with defendant and associated or predecessor companies. He is now retired on a "30 and out" early retirement program. Claimant has held numerous jobs with this employer and associated or predecessor companies in the meat packing business. These jobs have included hog kill, slicing and cutting, cooking, construction and inspection. At the time of his injury, claimant was employed as a silent cutter and had been for approximately one year. This position entailed heavy lifting, especially of 50-pound bags of potatoes. Each batch of hash required about 15 such bags and some 20 batches were prepared during each shift. Claimant HEATH v. ARMOUR-DIAL, INC. Page 3 frequently had to stoop for these bags and also carried 45-pound bags of curing spices. He also was required to clean the floor with a power hose. Claimant's alleged injury is to the lumbar spine. He testified to a previous episode in 1982 when his back "snapped" upon picking up an empty box, causing immediate and severe pain. Claimant was treated with traction for approximately ten days by his long-time family physician, David Castleberg, M.D. Thereafter, he felt fully recuperated from this injury and returned to work. Claimant testified that he had no medically imposed restrictions and had no further problems with his back until the subject injury in 1986. As detailed below, claimant testified to a number of problems he now suffers, but specified that none of those problems preexisted the subject work injury. As to the work injury, claimant indicated that he was employed making hash on April 9, 1986. He carried a 45-pound box of "cure" in his hands in a stooped posture under a 4-foot high conveyor. At that time, claimant indicated he felt "discomfort," although apparently not severe pain. However, some 1-2 hours later, pain developed and continued to worsen, after which claimant obtained keys to the medical department from night supervisor Richard Leverington to get aspirin. Claimant conceded that he did not advise Leverington what had happened to cause his discomfort because Leverington was busy. Claimant advised Bill Roberts, a supervisor on another line, that his back was hurting and was advised to fill out an accident report. Later, claimant was advised by his own supervisor, George Bloom, that he should fill out an accident report. Bloom advised him that he had "heard all about it." Claimant testified that he was in severe pain all night after leaving work. on the following morning, he found it difficult to arise from bed. He called the company nurse to advise that he would not be in because of back pains. He also indicated that he was unsure as to what caused his injury. The nurse (Martha) told him that it appeared the injury was not work related and that he should find his own physician. Plant nurse Martha Lutenegger gave an unsworn statement on April 25, 1986. A transcript of that statement is in evidence. She reported that claimant.called on April 10, 1986 about his back pain and reported that nothing specific happened, but that his back just started hurting while he was working. It was during the second call she had from claimant on April 17 that claimant first alleged that he may have been injured while carrying a box of cure underneath a machine. HEATH v. ARMOUR-DIAL, INC. Page 4 Claimant made his own appointment and visited Linda Schmidt Jabbari, D.O., on the same day. He was treated with pain medication and muscle relaxants and advised to return to work. He did so and was put on lighter work so that he was able to finish the week. Claimant further testified that he went to a different line of light work in the following week, but stiffened up on Tuesday so that he was unable to get out of bed due to pain on the following day. He again called the company nurse and was told to make his own arrangements for medical care. Claimant thereupon visited James Kannenberg, M.D., on April 17, 1986. Dr. Kannenberg hospitalized claimant. Claimant was next referred to Koert R. Smith, M.D., who eventually released him to work on September 2, 1986. Dr. Smith had earlier given claimant a light-duty release, but defendant refused to accept him back to work without a full release (defendant's policy is to require an unrestricted release to return to work in cases of injury it deems nonwork-related). Dr. Kannenberg treated claimant with traction and physical therapy, while Dr. Smith treated him with pain medication, muscle relaxants and "self-help" physical therapy. When claimant returned to work (still suffering leg pain at this time), he was given work as a can inspector. This was, of course, lighter work. During one week in which no inspection job was available, claimant elected to take vacation instead of attempting to perform more strenuous work. Claimant continued this lighter duty work until an incident on February 27, 1987, when he suffered acute exacerbation of his lower back and extremity problems while doing exercises for home physical therapy. He visited David C. Wenger-Keller, M.D., since Dr. Kannenberg was unavailable. Dr. Wenger-Keller prescribed medication and took claimant off work as of that date. Mr. Heath has not returned to work since then and eventually accepted early retirement on July 1, 1987. He has since moved back to Wisconsin where he owns a home he had rented out while working in Iowa. Claimant testified that he chose to retire because he was physically unable to tolerate returning to work, even the light-duty inspection jobs. He had earlier contemplated retirement when he moved to Iowa from Wisconsin (May 1984), HEATH v. ARMOUR-DIAL, INC. Page 5 but did not do so because he wished to take advantage of a company "30 years and out" retirement program. Claimant's net retirement income is only $483 per month. He had planned to supplement that stipend with work as a painter and handyman, but now finds himself unable because of his back pain. Complicating his situation, claimant suffered a heart attack on March 18, 1989 and was still under care at the time of hearing. Claimant testified that as of hearing and for the year and one-half prior thereto, his condition and limitations have included intermittent severe back pains, an inability to walk more than about one-half hour without pain, an inability to climb extensive stairs without pain, an inability to stand for more than 15-20 minutes (standing still) or one hour (if able to move about), an inability to lift, an inability to do yard work beyond approximately 20 minutes, inability to paint for profit; also a need for daily self-physical therapy, weekly professional physical therapy, and frequent visits to his current treating physician, Dr. Castleberg. Claimant is able to sit in a stiff-backed chair, is able to bend, can do some housework, and is able to drive some vehicles. On cross-examination, claimant stated that he now is certain when he was injured, but was not at the time and agreed he had advised defendant that he did not know the mechanism of injury. Further, he stated that he did not immediately know what was wrong or even if anything at all was wrong. He was aware that defendant has a strong policy of immediately reporting injury and agreed that he should have advised Leverington of the injury when he obtained keys to get aspirin. Further, claimant conceded that he did not advise Nurse Martha how he had hurt himself and that by the end of that day he had spoken to four representatives of defendant without specifying that his injury had occurred while he was carrying curing spices in a stooped position under a conveyor. Claimant also conceded that he has looked for no work whatsoever since his retirement. Chart notes from Chippewa Valley Hospital indicate that claimant required one hour to straighten up after his physical therapy injury in February, 1987. Claimant agreed that these notes were inaccurate. Mary Heath testified that she is claimant's spouse. She indicated that claimant is unable to accomplish much because of his injury, and believes that medications have HEATH v. ARMOUR-DIAL, INC. Page 6 affected his personality. She also agreed that claimant's activities have been further restricted since his coronary accident. Roger Marquardt testified to being a vocational rehabilitation specialist since 1968. He takes referrals both from plaintiffs and defendants. Mr. Marquardt indicated that he evaluated claimant beginning in April, 1987. He considers claimant to be in the lower semi-skilled category. Most of claimant's work prior to his injury was medium to heavy. However, painting is relatively light work. Noting claimant's age (49 at the time he began evaluation), which he viewed as approaching advanced age, and considering claimant's poor education and illiteracy and that his work history did not equip claimant with truly transferrable skills, Marquardt felt that claimant was essentially unable to develop an entire new salable skill and that his employment opportunities would be restricted to using his previous skills or what he might develop in brief on-the-job training. He originally considered claimant's motivation satisfactory, but agreed on cross-examination that claimant's motivation is now questionable because of his failure to seek work since February 1987. Based on physical restrictions Marquardt felt that claimant was limited to light work, which entails about a 44 percent loss of access to jobs for which he would otherwise be suited. He felt claimant might be able to accept employment as a watch guard, counter clerk, delivery driver or light bench assembler. The median wage of such employment in 1987 was $4.37 per hour. On cross-examination, Marquardt agreed that he did not contact defendant to view the plant where claimant had worked. He agreed that he did not use Dr. Smith's physical limitations because claimant had reinjured himself in February 1987. He agreed that claimant should have undergone recommendations of the Mayo Clinic in seeking low back relaxation therapy and a work hardening program. Mr. Marquardt felt that claimant is less employable today than he was at the time of his evaluation because he is older, retired, and has been away from the competitive labor market for a longer time. He felt it would have been better for claimant to have worked harder to get back to work at the time of the evaluation. Marquardt agreed that it is to be preferred that injured workers seek placement with their former employer, especially in the case of older workers. He noted that claimant had "self-disqualified" himself from work as an HEATH v. ARMOUR-DIAL, INC. Page 7 inspector and that was his reason for ruling out a return to that employment. Richard Leverington testified to being a supervisor at the time of the subject work injury. He stated that while making a routine tour, claimant approached with a complaint of back pain. Leverington asked whether claimant had had an accident, a slip or fall. Claimant responded that he had not and that his back had just started to hurt. Leverington further indicated that although he spoke to claimant on the following day, claimant still did not tell him his injury was work related. In fact, at least one week passed before he learned that claimant claimed his injury was work related. Mr. Leverington also described defendant's policy as requiring a full release to return to work following a nonwork-related injury, but seeking to find work within limitations for individuals who have suffered work injuries. Asked if there were jobs available with defendant that could be performed with a 25-pound lifting restriction, Mr. Leverington testified that there were at least 50 such jobs in approximately 20 classes. On cross-examination, he modified that opinion to indicate that from 100 up to 150 jobs might be available for individuals with a 25-pound lifting restriction. Leverington testified that he considered claimant to be a friend and an excellent employee, one who is dependable and honest. Chart notes of April 10, 1986 were prepared by Linda Schmidt Jabbari, D.O. She noted that claimant came into the office complaining of lower back pain, especially on the right side. The pain had developed the previous night. "Thinks he must have strained something while at work." Dr. Schmidt Jabbari's assessment was of muscle spasm. She gave a prescription for medication and permitted claimant to return to work. Claimant next saw James Kannenberg, M.D., on April 17, 1986. Dr. Kannenberg's chart notes reflect that claimant was carrying a box of "cure" across the floor and had to duck under a conveyor. "[H]e did not notice any immediate pain at that time, but as the night wore on he began to notice low back pain bilaterally and upper hip pain bilaterally /c some pain radiating down the right posterior lateral leg to about the level of the knee." Dr. Kannenberg reported that claimant had been able to tolerate lighter work for two days following his visit with Dr. Jabbari (Dr. Kannenberg had been unavailable) and did not notice much HEATH v. ARMOUR-DIAL, INC. Page 8 pain on Monday after resting over the weekend. However, claimant reported switching jobs on Tuesday and the pain began again in the lower back bilaterally, the upper hips and the right leg posteriorly laterally down to the level of the knee. Dr. Kannenberg noted that claimant had been diagnosed as suffering a herniated nucleus pulposis at an unknown level 8-10 years earlier, but that he had attained total resolution of the symptoms over approximately one month and had been totally asymptomatic since that time. "Has been able to do absolutely anything he's wanted to do. Patient had no neurological sequela [sic] from that episode." Dr. Kannenberg's admitting diagnosis was to rule out herniated nucleus pulposis at L3, L4, L5. Claimant was to be admitted for diagnosis and treatment of the low back injury, including a CAT scan and traction. While admitted to Fort Madison Community Hospital, claimant was seen in consultation by Donald Mackenzie, M.D. Dr. Mackenzie saw claimant on April 21, 1986. The history given Dr. Mackenzie was that claimant was carrying a 30-pound bag and ducked to go under a conveyor, thereafter feeling pain in the back within two hours as well as radiating pain to both hips. Dr. Mackenzie wrote Dr. Kannenberg on April 21. He noted that a CT scan demonstrated the presence of a small L4-5 central disc herniation, more pronounced on the right than the left, and no obvious evidence of neural tissue impingement. He believed that claimant had probably a protruding disc and certainly had very significant sciatic symptoms, but was concerned by the lack of correlation on the CT scan. He therefore recommended an EMG and nerve conduction study. A lumbar CT scan was read by David H. Rice, M.D., on April 18, 1986. He found a bulging annulus at the L4 and lumbosacral interspaces and could not rule out a small fragment of herniated disc just to the right of the midline at the lumbosacral interspace. L3 interspace was negative. Dr. Rice read another lumbar CT scan on June 10, 1986. He found minimal bulging of the annuli at the L4 and lumbosacral interspaces and the possible midline disc herniation at the lumbosacral interspace was again demonstrated. There was no definite evidence of impingement on neural elements by any of the above-mentioned changes; all of these findings were unchanged from the earlier CT scan. Dr. Kannenberg discharged claimant on May 1, 1986 with a diagnosis of herniated nucleus pulposis, L4,L5. He noted that Dr. Shivapour was consulted for an EMG test which revealed grade I, L5 nerve root lesion on the right. Based on this, an epidural steroid injection on the right at L4-L5 HEATH v. ARMOUR-DIAL, INC. Page 9 and L5-Sl was performed on April 25, 1986. Claimant showed slow improvement of his symptomatology. Koert R. Smith, M.D., saw claimant on referral from Dr. Kannenberg on June 20, 1986 and thereafter. Claimant gave a history of not recalling any definite injury to the back, but that a couple hours before the onset of pain he was bending over lifting about a 45-pound box of spice under a conveyor belt. Dr. Smith noted that about 2-3 weeks before, claimant had worsening of symptoms with increasing pain in the lower back and some radiating pain in both legs, more in the anterior thighs. Claimant stated most of his pain was in the low back area radiating out to the buttocks on both sides. His assessment at that time was of a history of old herniated nucleus pulposis L4-5 with recurrent acute strain, slowly resolving. Dr. Smith's chart notes of August 28, 1986 reflect that physical examination showed a full range of motion in the lumbar spine, no guarding. Straight leg raising was negative (as it had been since claimant's first appointment with Dr. Smith). Claimant was given a slip to return to work on September 2, 1986. Dr. Smith had given an earlier return to work slip effective July 7, 1986, which restricted claimant to lifting, pulling or pushing at 20-30 pounds and restricted bending. The return to work slip effective September 2, 1986 was unlimited and allowed claimant to return to regular employment in full capacity. Claimant was first seen by David C. Wenger-Keller, M.D., on February 27, 1987. Claimant came in because he had exacerbated his pain during his usual back exercises in the morning. Chart notes of February 27 indicate that claimant was doing his usual back exercises "More determinedly than usual." About one hour later claimant began having trouble with pain. Claimant gave the same history of injuring himself walking under a conveyor while holding a 40-pound box. Claimant complained of pain in both legs, but no more than usual. Dr. Wenger-Keller reported that when he very lightly (his emphasis) touched the area over the mid-lumbar spine, claimant "almost leaps of [sic] the table, and has tears." Claimant demonstrated loss of lumbar lordosis and, muscle spasm. There was decreased range of motion of the hips due to back pain. Dr. Wenger-Keller wrote on March 30, 1987 that claimant had been seen on three occasions for acute exacerbation of his back pain. "His time off is estimated to be permanent." HEATH v. ARMOUR-DIAL, INC. Page 10 Claimant was also seen at the Mayo Clinic in Rochester, Minnesota. X-rays of the lumbar spine taken June 23, 1987 showed mild hypertrophic changes. A magnetic resonance imaging study of August 18, 1987 was negative as to the lumbar spine with no evidence of mass or disc protrusion. An electromyographic study taken June 23, 1987 was normal as to the right lower extremity with no evidence of a radiculopathy. Philip G. McManis, of the Mayo Clinic, wrote Dr. Castleberg on September 9, 1987 to report findings. Mr. McManis (he identifies himself as holding M.B. and B.S. degrees, but is apparently not a physician) was of the view that claimant's pain was mechanical in origin and out of proportion to the degree of degenerative changes seen on lumbar spine films. Mr. McManis stated that a similar conclusion was reached in the Department of Physical Medicine and Rehabilitation, but does not identify the physician or other individual who reached that conclusion. Since retiring and returning to Wisconsin, claimant has been treated by David L. Castleberg, M.D. Claimant's attorney wrote Dr. Castleberg on April 19, 1988 to ask several questions. Dr. Castleberg wrote brief responses on the face of that letter as follows: 1. What is your diagnosis of Mr. Heath's condition? a: Mechanical low back pain, central disc. 2. Is his condition causally related to or was it aggravated by the work injury of April 9, 1986? a: Yes. 3. Do you recommend further treatment? If so, what do you recommend? a: Yes. Continue P T & possible [illegible word, possibly "surgery"] if Neuro Surgeon would deem it. 4. Do you believe he has permanent partial impairment. If so, how much? Is the permanent partial impairment causally related to the April 9, 1986, incident? a: Yes. 2-5%. It is totally related to the injury. HEATH v. ARMOUR-DIAL, INC. Page 11 (It is possible that Dr. Castleberg gave claimant a 25 percent impairment rating as is claimed in claimant's brief. Legibility is poor.) Claimant was also seen for evaluation by Jerome G. Bashara, M.D. Dr. Bashara, a board-certified orthopaedic surgeon, testified by deposition taken February 17, 1989. Dr. Bashara saw claimant on July 29, 1986. Claimant gave history of crawling underneath a conveyor belt to go to the other side of the room to pick up a 45-pound box of spices, that he felt some pain in his lower back, and that two hours later the back pain got worse and he developed pain into both hips. Dr. Bashara's diagnosis at that time was of a herniated lumbar disc.at L4-5 and a bulging disc at L5-Sl. He believed to a reasonable degree of medical certainty that these problems were due to an injury on April 9, 1986, with some preexisting factors involved, being the 1982 injury. Dr. Bashara believed that claimant should be limited to light work activity with a 25-30 pound lifting restriction with no excessive bending, stooping or twisting of the lower back. He also recommended that claimant be treated with physical therapy, an exercise program and a weight loss diet. Dr. Bashara next saw claimant on August 16, 1988. His diagnosis was the same and the restrictions were the same. Further, Dr. Bashara recommended that physical therapy include traction, and that claimant wear a corset and be given a TENS unit for control of pain. Dr. Bashara also testified to a reasonable degree of medical certainty that claimant had sustained a 15 percent permanent partial physical impairment to the body as a whole related to his back condition. Of this, 10 percent was directly related to the injury of April 9, 1986 and 5 percent was related to preexisting conditions. Dr. Bashara was of the view that CT scans showed a herniated disc at L4-5 and a bulging disc at L5-Sl. Ho was aware that the Mayo Clinic felt the MRI scan was essentially normal, but viewed the MRI himself and came to a different conclusion: that injuries at L4-5 and L5-S1 existed with bulging at both levels. He also felt there was a free fragment line outside of the disc at L4-5 and.pressing the nerves to the spine and lower legs. Dr. Bashara deposition exhibit 4 is a partial transcript of claimant's deposition. Claimant testified there as follows: HEATH v. ARMOUR-DIAL, INC. Page 12 Q. Why don't you tell me how you got hurt then, please. A. I was -- was going under this four foot conveyor with a box of spice or cure and transferred it to the other side so I could use it and that's where initially I believe it happened. Q. I noticed you said that's where initially I believed it happened. Do you have some question as to whether that is how you hurt your back? A. No, I don't, no. Q. What kind of weight are we talking about in this box of spices? A. About 45 pounds. Q. And to get to the other side of the conveyor, what did you have to physically do? A. You had to bend over -- way over to pass under it. Q. When you say it's a four foot conveyor, would that indicate that the belt was four foot above the floor level or the bottom part of the conveyor? A. The bottom part of the conveyor. That's the highest point. Q. What did you notice about yourself as you were going under the conveyor? A. Nothing immediately. Q. When did you first notice something? A. About an hour -- between an hour and two hours later. Q. So I take it, at least at the time you went under the conveyor there wasn't an instance where you felt a pop or a snap or something happen in your back? A. No. (Dr. Bashara deposition exhibit 4, page 19, line 7 through page 20, line 16) HEATH v. ARMOUR-DIAL, INC. Page 13 During his deposition, Dr. Bashara was asked to review claimant's earlier testimony concerning how the work injury occurred, including the quotation above. Dr. Bashara indicated that the history was about the same as he understood it to be and testified that "assuming those circumstances outlined in exhibit 4 would be true" that his answers to other questions would be the same as they were based on the history Dr. Bashara personally took from claimant. Dr. Bashara also indicated that the 1982 injury was a mild disc injury which produced a mild disc bulge which healed. He specified that the 1986 reinjury was an injury to both discs. His opinion that the disc injury of 1982 had healed was based on the fact that claimant returned to normal work activities for a period of four years. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 9, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 197.1); Musselman v. Central Telephone Co., 261 Iowa 352, 154,N.W.2d 128 (1967). 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 HEATH v. ARMOUR-DIAL, INC. Page 14 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 April 9, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W. 2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be HEATH v. ARMOUR-DIAL, INC. Page 15 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). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co ., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). The evidence is undisputed that claimant was at work performing his job on April 9, 1986, when he developed symptoms. He quickly reported the existence of those symptoms, but did not report his belief that a work injury had occurred until a week later. Even then, he has been inconsistent as to whether he first noticed symptoms or "discomfort" while carrying a 45-pound box of spice under a 4-foot conveyor belt. Claimant testified that he failed to recognize at first that he had been injured, but that he did feel "discomfort" when he went under the conveyor belt. However, it was one or two hours later that pain developed and continued to worsen. Claimant's demeanor at hearing indicated that he was testifying truthfully. It is accepted that claimant felt discomfort when he carried spice under the conveyor belt one or two hours before more intense pain developed, but that claimant did not recognize the injury.at the time or for up to one week later. As noted above, causal connection is largely within the sphere of expert medical testimony. No physician has opined that claimant did not injure himself at work or that the HEATH v. ARMOUR-DIAL, INC. Page 16 events of April 9, 1986 are not causally related to his present disability. Dr. Schmidt Jabbari noted on April 10 that claimant thought he had strained something while at work on the previous day, but expressed no opinion as to causation. Dr. Kannenberg reported on April 17, 1986 that claimant did not notice any immediate pain while ducking under the conveyor belt, but noticed low back pain bilaterally as the night wore on. He also rendered no opinion as to the causation issue. Dr. Mackenzie saw claimant on April 21, 1986. His history was that claimant was carrying a 30-pound bag and ducked to go under a conveyor, thereafter feeling pain within two hours. Dr. Smith saw claimant on June 20, 1986 and thereafter. His history was that claimant did not recall any definite injury to the back, but that he had ducked under the conveyor belt a couple hours before the onset of pain. His assessment was of a history of old herniated disc with recurrent acute strain. Dr. Wenger-Keller saw claimant after the exacerbation of his condition while exercising on February 27, 1987. His history was that claimant injured himself walking under a conveyor. Dr. Castleberg, who also treated claimant at the time of his 1982 injury, stated that claimant's condition (mechanical low back pain, central disc) was causally related to or aggravated by the work injury of April 9 and that claimant's permanent partial impairment was totally related to that injury. Dr. Bashara saw claimant on July 29, 1986 and August 16, 1988. When he first saw claimant, he was given a history of crawling under a conveyor belt, that claimant felt some pain in the lower back, and that two hours later the back pain got worse. He testified that two-thirds of claimant's permanent partial impairment was directly related to the April 9, 1986 injury, and one-third was related to the preexisting conditions. However, Dr I . Bashara was then given an opportunity to review claimant's deposition testimony to the effect that he noticed nothing immediately and first noticed pain between an hour and two hours later. Dr. Bashara further testified that assuming those circumstances were true, his answers to other questions would be the same as his answers based on the history of immediate pain going under the conveyor. HEATH v. ARMOUR-DIAL, INC. Page 17 Therefore, even if it were to be accepted that claimant felt no pain while ducking under the conveyor, there is direct medical opinion from a board-certified orthopaedic surgeon that the symptomatology which developed later that night is related to that lifting incident. It is therefore held that claimant has met his burden of proof in establishing that he sustained an injury arising out of and in the course of his employment with defendant on April 9, 1986. The parties have stipulated that claimant seeks healing period benefits from April 17, 1986 through September 2, 1986. He was on the latter date released without restriction by Dr. Smith. Pursuant to Iowa Code section 85.34(l), healing period runs until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment. As claimant was released to return to work on September 2, 1986, he shall be awarded healing period benefits from April 17 (when he first missed work) through September 2, 1986. As of September 3, 1986, claimant had no medically imposed restrictions. Claimant returned to work, but was given lighter duty work as an inspector. Meanwhile, he continued at home physical therapy and exercises per Dr. Smith's instructions. It was while performing those exercises that claimant exacerbated his condition on February 27, 1987. It has long been the case that "when an accident occurs to an employee in the usual course of his employment, 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). It has often been held that the employer is liable for further disability when a condition is aggravated or increased by treatment, provided the worker is not negligent in selecting the person who administers the treatment. Lindeken v. Lowden, 229 Iowa 645, 295 N.W. 112 (1940); Patchin v. Kroblin Transp., IV Iowa Industrial Commissioner Report 267 (,1983). At the time of the February 27, 1987 exacerbation, claimant was performing at home physical therapy pursuant to medical advice. There is no suggestion in this record that claimant was negligent in seeking treatment from Dr. Smith. As much of claimant's current condition is attributable to the aftereffects of that exacerbation, it is held that claimant's current condition is causally related to the original work injury. It is further held that the commencement date for the award herein of permanent partial HEATH v. ARMOUR-DIAL, INC. Page 18 disability is February 27, 1987, since claimant had not been given permanent medical restrictions prior to the exacerbation of his condition on that date. 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw HEATH v. ARMOUR-DIAL, INC. Page 19 upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant was 51 years old at the time of hearing, almost 49 years of age on February 27, 1987. He has an eighth grade education, but his state of literacy is such that he is unable to read a newspaper or write and his wife must read his mail for him. His work history includes farm labor and various duties with defendant and associated or predecessor companies, most of which involved fairly heavy work. The only medically imposed limitations claimant now has were imposed by Dr. Bashara. He is limited to light work activity with a 25-30 pound lifting restriction with no excessive bending, stooping or twisting of the lower back. Dr. Bashara has recommended that claimant be treated with physical therapy (including traction), that he wear a corset, that he undergo an exercise program and a weight loss diet, and that he be given a TENS unit for control of pain. However, these latter recommendations would not appear to give rise to additional industrial disability beyond that which the physical restrictions entail. Roger Marquardt noted that claimant was in the lower semi-skilled category and that most of his prior work was medium to heavy. He felt that claimant had suffered about a 44 percent loss of access to jobs for which he would otherwise be suited because he was limited to light work, although it is unclear what limitations Mr. Marquardt considered, particularly including self-imposed limitations (his reason for ruling out a return to work with defendant as an inspector was because claimant had "self-disqualified" himself from that work). This adversely affects the weight Mr. Marquardt's opinion can be given. Marquardt did point out that claimant might be able to accept employment as a watch guard, counter clerk, delivery driver or light bench assembler. The median wage of such employment in 1987 was $4.37 per hour, or roughly half what claimant earned with defendant, based on the stipulated compensation rate. Note that Marquardt felt that claimant was essentially unable to develop an entire new salable skill and that his employment opportunities would be restricted to using his previous skills or what he might develop in brief on-the-job training. On the other hand, Marquardt agreed it is preferable that injured workers seek placement with their former HEATH v. ARMOUR-DIAL, INC. Page 20 employer, particularly older workers. Richard Leverington testified that from 100-150 jobs might be available with defendant for individuals with a 25-pound lifting restriction (although he did not address how may jobs might be available to an individual with additional bending, stooping or twisting restrictions), but Marquardt did not visit the plant or contact defendant to consider the possibility of continued employment. While claimant was viewed as less employable at the time of hearing than was the case at the time of his evaluation because of being older, retired and away from the competitive labor market for a longer time, he felt it would have been better for claimant to have worked harder to get back to work at the time of the evaluation and conceded on cross-examination that claimant's motivation is questionable. This writer certainly agrees. While claimant states he retired because of his inability to continue work, there appears to be nothing in the restrictions given him by Dr. Bashara that would necessarily foreclose work as an inspector. Claimant had considered retiring at the time he moved to Iowa, and was able to take advantage of a "30 years and out" retirement policy by using his accumulated sick leave and vacation time. Claimant conceded that he has not looked for work since. It is clear to this observer that his motivation is low, a factor militating against increased industrial disability. There seems no doubt but that claimant has sustained physical impairment. Dr. Wenger-Keller believed in March, 1987 that claimant's time off "is estimated to be permanent." Dr. Castleberg felt that claimant had sustained a 2-5 percent or a 25 percent impairment, although the illegibility of his writing makes it impossible for this observer to be certain which he meant. However, given that he believed claimant should continue physical therapy and possibly undergo additional (surgery? legibility of this word is also poor) treatment, it seems entirely likely that he actually intended to assign a 25 percent impairment rating, even though the writing appears more to be 2-5 percent. Dr. Bashara believed that claimant had sustained a 15 percent permanent partial physical impairment, of which two-thirds was directly related to the injury and one-third related to claimant's preexisting condition. After considering the record in general and these factors in particular, it is held that claimant has sustained an industrial disability of 60 percent of the body as a whole. HEATH v. ARMOUR-DIAL, INC. Page 21 Defendant takes the position that claimant's current industrial disability should be apportioned between the disability attributable to the subject work injury and that attributable to his preexisting condition. Defendant is entitled to such an apportionment. However, even though claimant did have a preexisting condition as shown by his 1982 incident, and by Dr. Bashara assigning one-third of his impairment to that preexisting condition, it is nonetheless true that claimant had no preexisting industrial disability. Whatever physical impairment he may have had did not result in the imposition of any medical limitations whatsoever and did not in any way interfere with the performance of his job for a period of four years following the 1982 incident. Because none of claimant's industrial disability, as distinguished from physical impairment, is attributable to his preexisting condition, 100 percent of his current industrial disability shall be apportioned to the subject work injury. This decision also presumes that defendant will honor its stipulation made at time of hearing concerning claimant's medical expenses as set forth in the "Issues" section of this decision. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant was employed by defendant Armour-Dial on April 9, 1986. 2. Claimant sustained a work injury while at work on April 9, 1986, when he stooped and ducked under a low conveyor belt while carrying a 45-pound box"of spice. 3. Claimant's injury was to his back, and more specifically to his lumbar discs at L4-.5 and L5-Sl. 4. Claimant had preexisting problems with his back at those levels. However, his preexisting condition was aggravated and lighted up by the work injury. 5. Claimant's preexisting condition did not result in any medically imposed limitations and did not cause any loss of earning capacity, although claimant did have preexisting functional impairment to the back. 6. By reason of the subject work injury, claimant was disabled from work from April 17, 1986 through September 2, 1986 (19 weeks, 6 days). HEATH v. ARMOUR-DIAL, INC. Page 22 7. After being released to employment without restriction effective September 3, 1986, claimant exacerbated his condition while performing home physical therapy at the instruction of his physician on February 27, 1987. He subsequently retired and has not returned to work. 8. Although claimant was a credible witness, he is unmotivated to return to work. 9. By reason of his exacerbated condition, claimant has been limited to light work activity with a 25-30 pound lifting restriction with no excessive bending, stooping or twisting of the lower back. 10. By reason of the subject work injury, claimant has reduction in his earning capacity of 60 percent. 11. As stipulated, claimant is entitled to weekly beneifts in the sum of $232.44. 12.As stipulated, defendant is entitled to credit under Iowa Code section 85.38(2) in the sum of $6,182.40. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Claimant suffered an injury arising out of and in the course of his employment on April 9, 1986. 2. Claimant's work injury directly caused a healing period from April 17, 1986 through September 2, 1986 (19 weeks, 6 days). 3. Claimant's work injury has caused an industrial disability of 60 percent of the body as a whole (300 weeks). 4. Claimant's rate of compensation is $232.44. 5.Defendant is entitled to credit under Iowa Code section 85.38(2) in the sum of $6,182.40. ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant nineteen point eight five seven (19.857) weeks of healing period benefits at the rate of two hundred thirty-two and 44/100 dollars ($232.44) per week commencing April 17, 1986 and totalling four thousand six hundred fifteen and 56/100 dollars ($4,615.56). HEATH v. ARMOUR-DIAL, INC. Page 23 Defendant is to pay unto claimant three hundred (300) weeks of permanent partial disability benefits at the rate of two hundred thirty-two and 44/100 dollars ($232.44) per week commencing February 27, 1987 and totalling sixty-nine thousand seven hundred thirty-two and 00/100 dollars ($69,732.00). Defendant is entitled to credit under Iowa Code section 85.38(2) in the sum of six thousand one hundred eighty-two and 40/100 dollars ($6,182.40). All benefits ordered herein which have accrued shall be paid to claimant as a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs of this action shall be assessed to defendant pursuant to.Division of Industrial Services Rule 343-4.33. Defendant shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of March, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Arthur C. Hedberg, Jr. Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Square 400 Main Street Davenport, Iowa 52801 1402.30, 1402.40, 1803 1806, 2700 Filed March 22, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUSSELL HEATH, Claimant, File No. 823443 VS. A R B I T R A T I 0 N ARMOUR-DIAL, INC., D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.30, 1402.40, 1803, 2700 Claimant was released without restrictions after back surgery, but exacerbated his condition while doing home physical therapy exercises at direction of physician. Permanent disability caused by that exacerbation was awarded. 1806 Back-injured claimant had preexisting impairment, but no medical limitations and was able to continue his physically demanding work for four years without problems. One hundred percent of his current industrial disability was apportioned to subject work injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HARLAND ALLISON, : : Claimant, : : vs. : : File No. 823519 CEDARAPIDS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Harland Allison against Cedarapids, Inc., and its insurance carrier Liberty Mutual Insurance Company. The case was heard and fully submitted at Cedar Rapids, Iowa on December 20, 1989. The record in the proceeding consists of jointly offered exhibits 1 through 17, claimant's exhibits 1 through 15 and 18, and defendants' exhibits A and B. The record also contains testimony from Harland Allison, Wanda Allison, Walter E. Hanson, Edward Whittig and Regis H. Butz. issues Harland Allison seeks compensation for industrial disability based upon an injury that occurred on May 7, 1986. He claims that he is permanently totally disabled and seeks compensation for healing period as well as compensation for permanent disability. He relies upon the odd-lot doctrine. The issues to be determined include the healing period compensation claim, the claim for permanent total or permanent partial disability, and whether the injury is a scheduled injury of his leg or an injury to the body as a whole involving his back. The rate of compensation is in issue. Claimant seeks additional compensation under the fourth unnumbered paragraph of Code section 86.13. Claimant had been paid weekly compensation in the total amount of $11,104.58 as shown in an attachment to the prehearing report. findings of fact Harland Allison is a mechanic and serviceman who has been employed by Cedarapids, Inc., for approximately 30 years. When working as a mechanic in the shop, he was paid one rate of pay. When traveling for the employer as a service representative or service engineer, he was paid a Page 2 different rate of pay (claimant's exhibits 5 and 8). After closely analyzing those exhibits which contain claimant's pay stubs and a copy of the service engineer contract, it is found that at the time of injury, claimant was paid $11.73 per hour for his work as a mechanic in the shop and that the rate he was paid for service work while traveling for the employer was $15.525 cents per hour. On the pay stubs, the term "premium" refers to overtime. All "premium" or overtime pay was earned when claimant was performing service work rather than shop work, except for the eight hours on the April 13, 1986 pay stub. The breakdown of claimant's hours worked and whether they were at shop or service rate and whether they were regular or overtime hours computed at the regular hourly rate is shown in the following summary: Date Hours Status Gross 02/16/86 40 Reg Shop $ 469.20 02/23/86 40 Reg Shop 469.20 03/02/86 40 Reg Shop 469.20 03/09/86 8 Reg Shop 93.84 32 Reg Service 496.80 17.5 OT Service @ Reg 271.69 03/16/86 32 Reg Service 496.80 32 OT Service @ Reg 496.80 03/23/86 40 Reg Shop 469.20 03/30/86 32 Reg Shop 375.36 04/06/86 40 Reg Shop 469.20 04/13/86 32 Reg Shop 375.36 8 OT Shop @ Reg 93.84 04/20/86 39.25 Reg Shop 460.40 04/27/86 40 Reg Shop 469.20 05/04/86 8 Reg Shop 93.84 32 Reg Service 496.80 16 OT Service @ Reg 248.40 05/11/86 40 Reg Service 621.00 42.5 OT Service @ Reg 659.81 13-week Total $8,095.94 The foregoing shows that during the 13 calendar weeks used to compute claimant's rate of compensation, he earned $8,095.94 when all hours are paid at the regular rate of pay for the type of work being performed, namely $11.73 per hour for shop work and $15.525 per hour for service work. According to the stipulation contained in the prehearing report, claimant was married with two exemptions at the time of hearing. The average gross weekly wage is $622.76 which rounds to $623.00 per week. Allison was injured on May 7, 1986 when he was descending a ladder, slipped and fell with his left leg catching on a rung of the ladder. Claimant was suspended by his left leg being caught on the ladder and then dropped to the ground. Following that incident, he had difficulty walking. The incident occurred on a job site in South Dakota. Claimant reported the incident at work and received Page 3 medical care for his left knee from Des Moines orthopaedic surgeon Leland G. Hawkins, M.D. Claimant was taken off work for the knee from the period of time running from May 16, 1986 until he was released to return to work on June 7, 1986 (joint exhibit 6, page 37). Claimant did return to work, but on July 11 returned because of pain between his toes on his left foot (joint exhibit 7, page 46). The pain was attributed to claimant being unaccustomed to wearing his work boots. Claimant was authorized to return to work on July 18, 1986 (joint exhibit 6, pages 39 and 42). Thereafter, claimant continued to voice complaints and seek treatment for his knee occasionally. The record fails to show claimant ever mentioning any problem regarding his back until he was seen by orthopaedic surgeon Martin F. Roach, M.D., on or about January 20, 1987 (joint exhibit 9, page 48). Subsequent to that date, the history claimant gave generally included back pain having its onset at the time of the May 7, 1986 incident. He has been diagnosed as having degenerative disc disease, vacuum disc and stenosis. William A. Roberts, M.D., implied that claimant's back complaints were causally connected with the May 7, 1986 injury (joint exhibit 11, page 99). Neurologist Winthrop S. Risk, M.D., stated that claimant's back problem is causally connected to the May 1986 fall (joint exhibit 12, pages 120 and 121). Richard F. Neiman, M.D., implied that the back problem was aggravated by the fall (joint exhibit 16, page 134). Dr. Hawkins, claimant's original treating physician, felt that there was not a causal connection between the back problems and the May 1986 injury because claimant had not expressed any symptoms of back problems until January of 1987 (joint exhibit 17). The degeneration, foraminal narrowing, vacuum discs and other conditions found in claimant's spine by the various physicians are not necessarily the result of a fall of the type which claimant described. At the time of hearing, claimant was 63 years of age. Those conditions could easily be the result of aging and a life devoted to strenuous work. Those conditions are certainly something which could readily be aggravated by a trauma. As indicated, however, by Dr. Hawkins, if such were the fact of the matter, the symptoms would be expected to have manifested themselves shortly following the fall. According to claimant, he had back pain ever since the fall and it worsened gradually thereafter. Claimant's testimony regarding the onset of his symptoms is not corroborated in any manner by any of the medical records in this case, other than the histories he provided subsequent to January 1, 1987. Throughout all of 1986, there is no mention of back pain at any point. It is therefore found that claimant has failed to prove by a preponderance of the evidence that he had back pain prior to January 1987. Accordingly, the histories relied upon by Drs. Roach, Neiman and Risk are inaccurate. The history and Page 4 observations as related by Dr. Hawkins are found to be more accurate than the histories which claimant subsequently provided. It is therefore found that the evidence in this case fails to show it to be probable that any part of claimant's current back problem is a result of the May 7, 1986 fall. Claimant has voiced continuing complaints and symptoms regarding his leg. The record of this case does not contain any rating of impairment for his left knee or leg. Based upon the continuation of symptoms in that leg which commenced with the May 7, 1986 fall and the limited abnormalities found in the leg, it is determined that claimant has a five percent permanent impairment and permanent partial disability of his left leg as a result of the May 7, 1986 injury. It is found that claimant's absence from work since January 27, 1987 is related to his back condition which has not been shown by a preponderance of the evidence to have resulted from the May 7, 1986 fall, either directly or as an aggravation of a preexisting condition. Dr. Hawkins' assessment of this case as reported in his June 1, 1989 report is accepted as being correct. Page 5 conclusions of law Claimant's rate of compensation under Code section 85.36(6) is computed on a gross weekly wage of $623.00 and his marital status being married with two exemptions. The rate is $362.34 per week. The higher rate of pay which claimant received when performing service work is not premium pay. It is simply pay for a different type of work than the work which he performed when in the shop. Claimant is entitled to recover healing period compensation running from May 16, 1986 through July 6, 1986, a span of seven and three-sevenths weeks. He is also entitled to recover healing period compensation from July 11 through July 17, 1986, a span of one week. Claimant is entitled to recover permanent partial disability benefits for a five percent permanent partial disability of his left leg with the same being payable commencing July 18, 1986. Under Code section 85.34(2)(o), the entitlement is 11 weeks. Claimant has failed to prove any entitlement to a penalty under the fourth unnumbered paragraph of Code section 86.13. order IT IS THEREFORE ORDERED that defendants pay claimant eight and three-sevenths (8 3/7) weeks of compensation for healing period at the rate of three hundred sixty-two and 34/100 dollars ($362.34) per week with seven and three-sevenths (7 3/7) weeks thereof payable commencing May 16, 1986 and with the remaining one (1) week thereof payable commencing July 11, 1986. IT IS FURTHER ORDERED that defendants pay claimant eleven (11) weeks of compensation for permanent partial disability at the rate of three hundred sixty-two and 34/100 dollars ($362.34) per week payable commencing July 18, 1986. IT IS FURTHER ORDERED that claimant's entitlement to weekly compensation totals seven thousand thirty-nine and 90/100 dollars ($7,039.90). According to the attachment to the prehearing report, he has been previously paid in excess of twenty-seven thousand dollars ($27,000.00). Defendants therefore owe nothing further in the way of weekly compensation. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this ______ day of ____________, 1990. ______________________________ Page 6 MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Mr. Matthew J. Nagle Attorneys at Law 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. Ralph W. Gearhart Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 5-1402.30, 3001 Filed June 8, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : HARLAND ALLISON, : : Claimant, : : vs. : : File No. 823519 CEDARAPIDS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 3001 Claimant was paid one hourly rate when he worked in the shop and a different higher hourly rate when he performed service work outside the shop for his employer. When he worked overtime, he was paid time and one-half based upon the type of work he was performing at the time. It was held that the higher rate of pay when he performed service work outside the shop was not a premium pay and was used when computing the gross weekly wage. 5-1402.30 Claimant failed to prove that his back condition was proximately caused by the leg injury which he had sustained more than six months prior to the time that he first voiced back complaints. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES Q. COLE, Claimant, File No. 823600 vs. CONTINENTIAL BAKING COMPANY, Employer, A P P E A L and R U L I N G AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. On November 15, 1988, claimant filed what was purported to be notice of a cross-appeal and on December 7, 1988, claimant filed a brief in support of cross-appeal. The transcript was filed on May 8, 1989. On May 9, 1989, defendants filed a letter indicating that the transcript had not been prepared but would be. On May 10, 1989, claimant filed a motion to dismiss appeal stating the appeal should be dismissed for failure to file a transcript within 30 days after notice of appeal. Claimant's motion requested as an alternative that the record be closed to further activity by defendants. On May 22, 1989, defendants filed a motion for additional time to respond to pleading. Defendants requested an extension to May 25, 1989. Because that time has expired and defendants have filed nothing further that motion is moot and will not be considered further. The motion for dismissal is now considered. Division of Industrial Services Rule 343-2.1 provides: "For good cause the industrial commissioner or the commissioner's designee may modify the time to comply with any rule." Division of Industrial Services Rule 343-4.30 provides: When an appeal to or review on motion of the commissioner is taken pursuant to 4.27(86,17A) or 4.29(86,17A), a transcript of the proceedings before the industrial commissioner shall be filed with the industrial commissioner within thirty days after the notice of the appeal COLE V. CONTINENTIAL BAKING COMPANY Page 2 is filed with the industrial commissioner. The appealing party shall bear the initial cost of transcription on appeal and shall pay the certified shorthand reporter or service for the transcript. In the event there is a cross-appeal, the appellant and cross-appellant shall share the cost of the transcript. In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the appealing party or parties within thirty days after notice of appeal or cross-appeal shall reimburse the cost of the transcript to the nonappealing party and if not so reimbursed the appeal shall be dismissed. In this matter the transcript has already been filed and claimant has filed his brief on crass-appeal. There is conflicting evidence in the record when a transcript was ordered by defendants. The claimant attempted to file a cross-appeal but apparently did not initiate steps to prepare or share the costs of the transcript. Good cause exists to extend the time for filing the transcript until May 8, 1989, the date which the transcript was filed. Division of Industrial Services Rule 343-4.36 provides: If any party to a contested case or an attorney representing such party shall fail to comply with these rules or any order of a deputy commissioner or the industrial commissioner, the deputy commissioner or industrial commissioner may dismiss the action. Such dismissal shall be without prejudice. The deputy commissioner or industrial commissioner may enter an order closing the record to further activity or evidence by any party for failure to comply with these rules or an order of a deputy commissioner or the industrial commissioner. Claimant requests in the alternative that the record be closed to further activity by defendants. Failure to comply with rule 4.30, supra, and failure to file the transcript in a timely manner has the effect of delaying the time in which to file briefs. The delay in this instance is a delay of approximately six months. Claimant attempted to file a cross-appeal. Until this ruling which will hold that the cross-appeal was untimely, both parties could have reasonably assumed that the costs of the transcript were to be shared as provided in rule 4.30. There is no indication that claimant paid for half the costs of the transcript nor any indication that claimant had taken steps to see that the transcript was filed. Had this been a situation where the delay in filing the transcript was clearly caused solely by the defendants, sanctions might be appropriate. However, this is a situation where both parties should have shared the responsibility of preparation of the transcript. The facts of this case do not warrant sanctions against the COLE V. CONTINENTIAL BAKING COMPANY Page 3 defendants. The defendants should serve their appeal brief within twenty (20) days of the date of this order. Subsequent briefs by the parties shall be as provided in Division Industrial Services Rule 343-4.28(1). Claimant filed an untimely notice of cross-appeal. That cross-appeal will not be considered. However, claimant's brief, as much as is relevant, will be considered. WHEREFORE, claimant's motion to dismiss defendants' appeal is overruled in its entirety. Signed and filed this 2nd day of June, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES Q. COLE, Claimant, File No. 823600 vs. A R B I T R A T I O N CONTINENTAL BAKING COMPANY, D E C I S I O N Employer, and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by James Q. Cole, claimant, against Continental Baking Company, employer (hereinafter referred to as Continental), and Aetna Casualty & Surety Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on April 15, 1986. On May 6, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing only from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On April 15, 1986, claimant received an injury which arose out of and in the course of employment with Continental; 2. Claimant is seeking temporary total disability or healing period benefits from April 17, 1986 through May 22, 1987 and from July 21, 1987 through December 15, 1987. Claimant agrees that he has been paid weekly benefits for the period extending from April 15, 1986 through December 23, 1986; 3. If the injury is found to have caused permanent disability, the type of disability is.an industrial disability to the body as a whole; 4. With reference to claimant's rate of weekly compensation, claimant was married and entitled to four exemptions at the time of the injury; and, 5. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the medical condition upon which the claimed hearing is based, but that the issue of their causal connection to any work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determination, in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; II. The extent of claimant's entitlement to weekly benefits for disability; III. Claimant's rate of weekly compensation; and, IV. The extent of claimant's entitlement to medical benefits. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that he worked for Continental from 1976 until May 22, 1987 at which time he was terminated by Continental because there was no work available within his restrictions imposed by claimant's physicians. Claimant stated that he was a maintenance engineer. According to the rate agreement submitted to this agency on July 2, 1986, claimant's average weekly earnings over the 13 week, period prior.to the injury was $461.15. Claimant testified that he worked at least 40 hours per week at Continental. Claimant testified at hearing that he was quite active outside of his employment at Continental. Claimant conducted two small businesses on a part-time basis out of his home, namely: J & J Heating and Refrigeration and J & J Printing. Claimant said that he was quite active in these businesses before the work injury in this case and earned from $200 to $800 per week from these operations prior to the work injury. The facts surrounding the work injury are not in dispute. Claimant testified that on April 15, 1986, while lifting a floor safe weighing approximately 180 to 200 pounds with another employee, the other employee let go placing full weight upon claimant's back. Claimant said that he felt a sharp pain in his lower back. The pain continued but claimant was able to finish out the day. The next day claimant was scheduled for a day off and claimant said he remained in bed. The following day claimant returned to work but could not perform his work due to the low back pain and claimant was referred for medical treatment to the company physician, C. L. Peterson, D.O. After a CT scan, Dr. Peterson placed claimant on medication and claimant remained off COLE V. CONTINENTAL BAKING COMPANY PAGE 3 work. However, despite this treatment, claimant failed to improve and he was referred to an orthopedic surgeon, Marvin L. Skoglund, M.D. As Dr. Skoglund was out of town, his office referred claimant to a neurosurgeon, Harry Honda, M.D. Dr. Honda hospitalized claimant for 10 days for physical therapy and tests including a myelogram and CT scan. Dr. Honda's diagnosis was lumbosacral strain and.minimal bulging of the three discs in the lower spine, L3-4, L4-5 and L5-Sl. Claimant was advised upon discharge from the hospital to lose 60 to 70 pounds by Dr. Honda to improve his chances for recovery. Care under Dr. Honda continued until claimant was released to return to work in mid December, 1986 upon a final diagnosis of herniated nucleus pulposus. At the time of his release to return to work, Dr. Honda imposed work restrictions against lifting over 40 pounds with no excessive bending or stretching. Claimant testified that he return to work on December 23, 1986 and was assigned to buffing, sanding and stripping floors which, according to claimant, required a considerable amount of twisting, bending and lifting. Claimant said that he just got to the point where he could not work and reported to Dr. Skoglund who took claimant off work from April 17, 1987 to May 22, 1987. Upon returning to work on May 22, 1987, claimant was told by Continental that there was no work available within his restrictions and claimant was terminated. Claimant had a recurrence of low back pain in July of 1987 and Dr. Skoglund indicated that claimant was not able to return to work until mid December, 1987. Claimant also received chiropractic treatments in 1987. Claimant testified that Continental denied paying these bills and said that Dr. Skoglund was aware of the chiropractic treatments and claimant thought Dr. Skoglund was working with the chiropractors. In February, 1987, claimant was evaluated but not treated by Raymond W. Dasso, M.D., a board certified orthopedic surgeon. After his examination of claimant and review of claimant's history, Dr. Dasso diagnosed that claimant had a bulging of the disc at the L3-4, L4-5, and L5-S1 levels of the lower spine and that claimant suffered from severe back strain. Dr.Dasso opines that claimant has a 15 to 18 percent permanent partial impairment to the body as a whole and has restricted claimant's activity to no lifting over 25 pounds, no excessive bending, stooping or twisting at work. Also, in February, 1987, claimant was referred by his attorney to Thomas P. Dhanens, Ph.D., a clinical psychologist, for evaluation of psychological problems claimant has having at the time. Dr. Dhanens' diagnosis was that claimant had a major depression caused by pain and circumstances created by the work injury of April, 1986 and an inability to return to work. Dr. Dhanens felt that claimant was in need of treatment including possible anti-depressant medication as he was a possible danger to himself and others. Dr. Dhanens treated claimant with psychotherapy sessions in February, March and April of 1987. These sessions ended without explanation by claimant or Dr. Dhanens in April, 1987 and Dr. Dhanens has not issued a final report although he had indicated in March of 1987 that claimant was improving. Claimant testified that he has not been employed full time since his last day at Continental on February 17, 1987. Claimant expressed a desire to return to full time work. Claimant said COLE V. CONTINENTAL BAKING COMPANY PAGE 4 that his involvement in the two part-time home businesses has been severely curtailed since the work injury and his only involvement now is in the form of a supervisory capacity although he does make some house calls on small repair jobs. Most of the physical work according to claimant is now performed either by his son or wife. Claimant testified that he works two to three hours a week in the printing shop and three to four hours a day in the appliance repair business. Claimant continues to be fire chief and participates occasionally in training sessions. At one time claimant attempted to complete an obstacle course in the course of fireman training but his participation ended with a recurrence of back pain. Claimant admitted to having extensive chronic treatment of his back prior to the April, 1986 injury but stated that these instances of back pain were only pain between his shoulders, not in the low back. Chiropractic records indicate treatment for "spinal" condition but none of these records indicate what part of the spine was treated. In July, 1987, claimant was evaluated by two general surgeons and occupational medicine physicians, Barry Lake Fischer, M.D., and Hymans Lans, M.D. From their oral histories taken of claimant, both physicians rated claimant's permanent partial impairment as constituting a 49 and 45 percent impairment respectively. Claimant testified that his past employment primarily consists of maintenance work. Claimant is 42 years of age and only has a ninth grade education. Claimant exhibited average intelligence at the hearing. Claimant stated that he has looked for suitable work since December of 1987 primarily in appliance shops involving bench work. Claimant has signed up with Job Service in order to seek employment. Claimant's appearance and demeanor at the hearing indicated that he was testifying truthfully. APPLICABLE LAW AND ANALYSIS I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a.physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist COLE V. CONTINENTAL BAKING COMPANY PAGE 5 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, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law, Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant contends that he has suffered permanent-disability as a result of the work injury herein due to the permanent impairment to the body as a whole. First, the evidence is uncontroverted that claimant has a significant permanent impairment to the body as a whole. Although the views of Dr. Fischer and Dr. Lans are important, they appear to be unusually high given the experience of this agency. Also, the views of Dr. Dasso, a board certified orthopedic surgeon, must be given the greater weight due to the specialized experience and training in the field of orthopedics. Therefore, it will be found that claimant has a 15 to 18 percent permanent partial impairment to the body as a whole. It should be noted that this is an industrial case and the exact percentage of impairment is only one factor among many in determining the percentage of disability for purposes of awarding weekly benefits. Second, the evidence shows the requisite causal connection between the back injury and the permanent impairment. The prior back problems appear to be in the upper back, not in the lower back and claimant's testimony and evidence establishes a direct link between his current physical problems and the lifting injury at work in April, 1986. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a COLE V. CONTINENTAL BAKING COMPANY PAGE 6 whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway 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. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. 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. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was excellent and he had no ascertainable disabilities effecting his ability to work. Claimant was able to fully perform physical tasks involving heavy lifting, repetitive lifting, bending, twisting and stooping, and prolonged standing and sitting. As a result of his work injury, claimant's primary treating physician, Dr. Honda, has imposed significant work restrictions in that claimant was not able to return to the type of work he was able to perform at the time of the injury. The nature of these restrictions are more important than any particular percentage of functional impairment from an industrial disability standpoint because it bears a direct relationship to the type of work claimant can perform in his earning capacity. Claimant's physicians have restricted claimant's work activities by prohibiting tasks such as heavy lifting, repetitive lifting, bending, twisting and stooping, and prolonged sitting and standing. Claimant's medical condition prevents him from returning to his former work or any other work which requires claimant to perform strenuous heavy work. Given claimant's age, lack of formal education and work history, claimant is best suited to employment in jobs requiring heavy work. Claimant remains unemployed despite an effort to seek alternate employment. According to the Iowa Supreme Court, such a factual setting may invoke the so called "odd-lot" doctrine. This doctrine allows claimant to establish a prima facie case for unemployability and permanent total disability benefits from a factual showing of a reasonable but unsuccessful effort to find suitable work. If defendants then fail to go forward with the evidence on the issue of availability of suitable work to claimant, claimant is entitled to an award of permanent disability. See Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). However, the industrial commissioner has directed that this doctrine cannot be applied by a deputy unless the doctrine is plead and identified as an issue at.the last prehearing conference and listed as an issue in the.prehearing COLE V. CONTINENTAL BAKING COMPANY PAGE 7 assignment order. Therefore, as such an issue was not raised by claimant in this matter, the doctrine could not be applied in this case. Claimant's evidence has failed to show that some sort of suitable light duty work is not available to him, albeit at much lower pay in this agency's experience with sedentary and unskilled labor work. Claimant is 42 years of age and should be at the prime of his working life. His loss of future earnings from employment due to his disability is more severe than would be the case for a younger or older individual. See Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Reports, Iowa Industrial Commissioner 34 (Appeal Decision 1979); See also Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (Appeal Decision 1981). Although claimant's lack of education and work experience would seem to indicate a very low potential for vocational retraining, claimant is quite versatile and for a number of years has occupied himself with many and varied occupational pursuits. This shows a certain flexibility and willingness to learn new ideas. However, despite the many part-time activities, his current earning capacity is quite limited. Finally, claimant's lack of motivation to lose weight to improve his back condition is a negative factor and his industrial disability award was lowered accordingly. After examination of all of the factors, it is found as a matter of fact that claimant has suffered a 50 percent loss of his earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 250 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 50 percent of the 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. It will be found that claimant reached maximum healing on December 23, 1986 and benefits will be awarded for that date. Claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work he performed at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. According to the evidence, claimant's primary treating physician returned claimant to work on December 23, 1986 with permanent restrictions on activity. Claimant's condition since that time has been fairly stable with intermittent episodes of recurrent pain but the restrictions imposed by Dr. Honda are much the same as his restrictions today. Therefore, it is found that claimant reached maximum healing on the day he returned to work on December 23, 1986. III. The prehearing report indicates a dispute as to claimant's gross weekly earnings for purposes of determining rate from the commissioner's rate schedule for this injury. Claimant's prehearing brief attached to the prehearing report states that he has proved a certain hourly rate. Although the undersigned's notes of the hearing may be inaccurate, claimant failed to testify as to his earnings at the time of injury. COLE V. CONTINENTAL BAKING COMPANY PAGE 8 However, a rate of some sort must be used and for lack of better information, the rate awarded shall be the same as that set forth in the employer's rate agreement filed with this agency on July 7, 1986. According to this document, claimant's gross weekly earnings over the 13 weeks prior to the injury were $5,994.95 or $461.15 per week which results in a $291.19 weekly rate of compensation according to the commissioner's rate book. Claimant argues that this agency should take into account all of his weekly earnings, including his outside self-employment income from the two businesses he operated. Such a calculation of rate is not permitted under Iowa Code section 85.36. Total annual earnings are only taken into account upon a showing that the claimant at the time of injury was earning less than the usual weekly earnings of a regular full time adult laborer in the line of industry in which the employee was injured in that locality. Such a showing has not been made. See Iowa Code section 85.36(10). IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is entitled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). According to the prehearing report, claimant seeks payment of the bills from Dr. Dasso, Dr. Dhanens and Dr. Freebern. First, the evaluation performed by Dr. Dasso appears to be for COLE V. CONTINENTAL BAKING COMPANY PAGE 9 the purpose of litigation rather than treatment. Therefore, the examination of Dr. Dasso cannot be awarded under Iowa Code section 85.27. Claimant made no claim for an independent evaluation under Iowa Code section 85.39 either before or during the hearing in this case. With reference to the bill from Dr. Dhanens, it appears that such evaluation was for the purposes of treatment and defendants stipulated that the expenses were causally connected to the back condition upon which claimant based his claim herein. Therefore, in light of the above finding that the back condition is causally connected to the April, 1986 injury, claimant has shown a causal connection of the Dhanens' treatment to the injury. With reference to the treatment of claimant by Dr. Dhanens and Dr. Freebern, defendants claim that such treatment was not authorized and claimant is not entitled to reimbursement for the expenses under Iowa Code section 85.27 which provides employers with the right to choose the care. However, section 85.27 applies only to injuries compensable under Chapters 85 and 85A of the Code and obligates the employers to furnish reasonable medical care. This agency has held that it is inconsistent to deny liability and the obligation to furnish care on the one hand and at the same time claim a right to choose the care. Kindhart v. Fort Des Moines Hotel, I Industrial Commissioner Decisions No. 3, 611 (Appeal Decision 1985); Barnhart v. MAQ Inc., Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). Defendants in this case have throughout these proceedings denied that claimant's condition arose out of and in the course of his employment and denied that claimant had suffered permanent impairment or disability. For that reason and absent a future change in defendants' legal position on the issue of liability, defendants will not have the right to choose the medical care for claimant's injuries until a decision of this agency establishing the compensability of such injuries becomes final. Therefore, the expenses of the treatment of Dr. Dhanens and Freebern are reimbursable. The bill from Dr. Dasso will be ordered pay by defendants but not under Iowa Code section 85.27. The bill will be awarded as a part of the cost of this action. However, this agency will not award more than $150 for any one medical report. It is felt that a medical doctor should not receive more money for a written report than the doctor could receive for testifying at a deposition or the hearing. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On April 15, 1986, claimant suffered an injury to the low back which arose out of and in the course of employment with Continental. The injury caused a mild bulging of the disc at various levels of claimant's lower spine and chronic low back strain. 3. The work injury of April 15, 1986, was a cause of a period of disability from work beginning on April 17, 1986 and ending on December 22, 1986, after which claimant returned to work. Claimant also reached maximum healing on December 22, COLE V. CONTINENTAL BAKING COMPANY PAGE 10 1986. 4. The work injury of April 15, 1986, was a cause of a 15-18 percent permanent partial impairment to the body as a whole and of permanent restrictions upon claimant's physical activity consisting of no lifting over 25 pounds and no repetitive lifting, bending, stooping, twisting or prolonged sitting or standing. 5. The work injury of April 15, 1986, and the resulting permanent partial impairment was a cause of a 50 percent loss of earning capacity. Claimant is 42 years of age and has only a ninth grade education. Claimant was a maintenance engineer at the time of the injury and claimant's only work experience has been in maintenance requiring heavy lifting and bending. Given his age, education and work history, claimant is best suited to employment involving heavy work. On the other hand claimant has shown the energy and ability to learn and begin outside self-employment businesses in the past and such fact would be a positive factor in vocational rehabilitation. Claimant, however, has not made a substantial effort to seek full time replacement employment and appears to lack motivation to lose weight to litigate the effect of his disability. Claimant, however, remains severely disabled and still is unable to perform heavy work, the type of work for which he is best suited. 6. Except for the bill for the evaluation of Dr. Dasso, the medical expenses listed by claimant in the prehearing report were incurred by claimant for reasonable and necessary treatment of his back condition and defendants have denied liability for the condition being treated. CONCLUSIONS OF LAW Claimant has established under law entitlement to specific disability and medical benefits awarded below. ORDER 1. Defendants shall pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of two hundred ninety-one and 19/100 dollars ($291.19) per week from December 23, 1986. 2. Defendants shall pay to claimant healing period benefits from April 17, 1986 through December 22, 1986, at the rate of two hundred ninety-one and 19/100 dollars ($291.19) per week. 3. Defendants shall pay the medical expenses sought in the prehearing report except for the bill from Dr. Dasso. This payment shall be made directly to the medical provider but only to claimant upon proof that claimant has paid the expense. 4. Defendants shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for benefits previously paid. 5. Defendants shall pay,interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. COLE V. CONTINENTAL BAKING COMPANY PAGE 11 6. Defendants shall pay the cost of this action pursuant to Division of Industrial Services 343-4.33 including the sum of one hundred fifty and no/100 dollars ($150.00) toward the cost of the evaluation of Dr. Dasso. 7. Defendants shall file activity reports upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 24th day of October, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Peter M. Soble Attorney at Law 505 Plaza Office Bldg. Rock Island, Illinois 61201 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Sq. 400 Main St. Davenport, Iowa 52801 1803 Filed October 24, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES Q. COLE, Claimant, File No. 823600 vs. A R B I T R A T I 0 N CONTINENTAL BAKING COMPANY, D E C I S I 0 N Employer, and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 1803 Claimant awarded 50 percent industrial disability for an inability to return to the type of work that he performed at the time of the work injury. Odd-lot was not plead and not applied.