BEFORE THE IOWA INDUSTRIAL COMMISSIONER JENNIFER MCGRUDER, Claimant, VS. File No. 825195 MANAS BALAGNA d/b/a AUNT BEA'S, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ROCKWOOD SERVICE CORPORATION, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Jennifer McGruder, against her employer, Manas Balagna, d/b/a Aunt Bea's, and its insurance carrier, Rockwood Service Corporation, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained September 13, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner at Council Bluffs, Iowa, on November 30, 1987. A first report of injury was filed July 16, 1986. At hearing, the parties stipulated that claimant was paid 25 weeks of benefits at a rate of $103.77 and 15 weeks of benefits at a rate of $30.67. The record in this case consists of the testimony of claimant as well as of joint exhibits 1 through 36 and A through 0. Subsequent to hearing, claimant's counsel attempted to submit a Supplemental Witness and Exhibit List. As the record was considered fully submitted at close of hearing as evidenced by the post-hearing order, the proposed supplemental exhibits are not received. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimant did receive an injury arising out of and in the course of her employment on September 13, 1985 and that there is a causal relationship between such injury and a period of temporary total or healing period disability. The issues remaining for resolution are: (1) Whether there is a causal relationship between the injury and claimed permanent partial disability; (2) Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement, including the sub-issues of whether claimant is entitled to additional temporary total disability or healing period disability or running award and the issue of whether claimant is entitled to permanent partial disability benefits; (3) Claimant's rate of weekly compensation in the event of an award; and, (4) Whether claimant is entitled to benefits under section 85.27. As regards the last issue, the parties stipulated that the provider of medical services would testify that fees were reasonable and defendants are not offering contrary evidence; they also stipulated that the provider would testify that treatment was reasonable and necessary treatment and defendants are not offering contrary evidence. They further stipulated that expenses were causally connected to the work injury and that defendants authorized the expenses. REVIEW OF THE EVIDENCE Claimant is single, 30 years old, a high school graduate who took general business courses and the mother of two minor children. Claimant had worked in a variety of jobs involving secretarial, bookkeeping and receptionist duties prior to her work at Aunt Bea's. Claimant had worked for the National Park Service and had earned $20,000 in that position sometime prior to her work at Aunt Bea's. Claimant reported that she had resigned that position after she was rear-ended in an automobile accident in March, 1981. She apparently then worked doing bookkeeping and receptionist work in a friend's business. She had previously left a civil service position at approximately the same salary and government service grade when that position was relocated and she chose not to transfer. Claimant also apparently had had a motorcycle accident with several fractures of her right leg in 1979. Claimant had returned to college following her alleged injury. She reported she had experienced discomfort while sitting and subsequently had not always attended. She reported her grades as generally good, however. Claimant testified that she began work at Aunt Bea's Restaurant in May, 1985 on a full-time basis working from 10 a.m. to 6 p.m., six days per week. Her duties apparently included vacuuming, cleaning tables, stocking tables, waitressing and bartending. Claimant reported her starting wage as $4.50 per hour with an increase to $5 per hour in her second month at Aunt Bea's. Claimant reported that she was paid in cash with no withholdings made. She indicated that she had never filed an income tax return for her work at Aunt Bea's as the exact amount of her earnings could not be determined. Claimant reported that she received at least $200 in tips each week. Claimant stated that she was the only waitress employed in the afternoon. Claimant agreed that she had done bookkeeping services for the restaurant and had kept track of hours of other workers. She reported this consisted largely of multiplying the hours by the employee's pay rate and giving the calculation to the owner who then paid the employee. Claimant denied that she had ever worked part-time hours listed and reported that part-time work for her would have been impossible because she was the only employee in the establishment during the day. Claimant reported that she gave the cook approximately one-third of her tips and characterized the cook as also a full-time worker who worked from 30-40 hours per week and received pay at the rate of $5 per hour. Claimant had "no idea" if her employer had paid her $1,065 while she worked for the restaurant. Claimant reported that, on September 13, 1985, she slipped and her feet went out from under her while working. She reported that she continued to work throughout the day, but by day's end felt sick, albeit without pain. She indicated that, by the following morning, her back was hunched over and she felt terrible. The next day was a Sunday. Claimant reported she McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 3 could not get out of bed that day, but that a neighbor assisted her in seeking treatment at Jennie Edmundson Hospital. Claimant reported that she saw Bernard L. Kratochvil, M.D., who took her off work. Claimant subsequently was hospitalized in October, 1985 for myelographic studies. She also subsequently received chiropractic treatments from Deanne J. Rogge, D.C., whom claimant reported referred her to Daniel L. McKinney, M.D. Claimant also had prescribed physical therapy treatments, consisting largely of massage and self-help education. Claimant reported continuing pain in her low back, her buttocks and her right leg and reported that physical therapy had not alleviated her pain or problems. She reported that she continues to see Drs. Kratochvil and Rogge and well as Jay W. Burr, her physical therapist. Claimant reports that she can at most walk three or four blocks and that her low back feels hot. She indicated she has difficulty sitting for extended periods, but that she spends a lot of time on her couch. She reported that she alternately spends her day walking, sitting or standing. Claimant reported that she had seen Michael J. Morrison, M.D., on two occasions consisting of 7 to 10 minute examinations each. She reported that his only advice was to give her a book containing exercises which she was unable to do because she had had a broken leg. Claimant opined that she could not return to work as a secretary as she could not sit as required. Claimant denied that she had cancelled 15 appointments with Mr. Burr from December, 1986 to March, 1987. She reported she could not remember Mr. Burr stating she could return to light-duty waitressing. She reported that she had seen L. Weber, M.D., a neurosurgeon upon referral of Dr. Kratochvil. She reported that she has seen Lilly M. Stroller, M.D., a psychiatrist, on one occasion, but not otherwise. Claimant testified that her physicians have told her that if she did have surgery, she would likely need it on two or three occasions. She reported that Dr. Kratochvil would not let her drive car for a long time. She indicated she uses a heating pad constantly, but reported she takes medications only approximately once every three months. Claimant agreed that she can read and write the English language and has very good typing skills. Sheri Grosvenor testified that she was hired as a cook at Aunt Bea's in June, 1985 and was paid $5.00 per hour for her services with compensation either by check or by cash. Withholding was not deducted from the witness' check. Ms. Grosvenor reported that, when she was able to observe claimant working, claimant did her work and did it well. She reported that, prior to September 13, 1985, she had not observed claimant walking with a limp or having physical impairments or complaining of back, knee or hip pain. Jay Burr testified by way of his deposition taken March 17, 1987. Mr. Burr is a Nebraska-licensed physical therapist. Burr reported that he initially saw claimant on April 4, 1986 and that subsequently Dr. McKinney referred her for services. He described claimant as giving a history of having slipped on a concrete floor in the late afternoon of September 13, 1985, McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 4 landing on her buttocks. He reported her symptoms as fairly diffuse consisting of low back, thoracic and cervical pain as well as mild headache and cold and profusely sweating hands and feet. Claimant had restriction in active lumbar range of motion and was not able to bend forward or backwards normally. The cervical spine was limited to approximately minus 10 degrees with rotation right and rotation left, but flexion-extension was essentially within normal limits. Claimant had had a partial fusion of her right knee on account of a fracture of the right leg, hence, active and passive range of motion of the right knee was abnormal. The right leg was approximately one inch shorter than the left. Claimant was tender to palpation in the lumbar, thoracic and cervical spine, but apparently without real muscle spasm. Burr reported that "[s]he was moving spontaneously and -- there appeared to be some minor mechanical involvement, which we have not been able to determine the etiology of the sacrum on ilium or the iliosacral complex.O Burr reported that claimant had a chronic strain of the lumbar spine extending into the sacrum. He reported that chronic strain generally involves consistent pain extending for greater than six months. He reported that a chronic problem generally results in change in soft tissue, shortening of musculature with the muscle losing its normal suppleness and with the effects of the strain extending elsewhere within the musculoskeletal system, that is, over time involving not only the muscle, but also the joint capsule, the ligamentous structure and the facial mechanisms. Burr reported that claimant had been seen on a fairly regular basis, that is, two or three times per week, from April (1986) until approximately two months prior to the deposition. Claimant was started on a posture and exercise program and encouraged to increase her overall activity level. Hot packs, high voltage galvanic stimulation, ultrasound, therapeutic exercise, joint mobilization techniques and cranial-sacral technique were also used. Burr reported that claimant's ability to perform outside physical activity was limited to a degree because of the functional problems she had with her right knee and partial fusion of that knee. Treatment alleviated claimant's complaints of profuse sweating and cold feelings in both arms and legs or hands and feet. Burr reported that therapy provided "better balance" with claimant's sacroiliac mechanism and that her lumbosacral and thoracic complaints decreased, although those were chronic in nature and had required ongoing treatment. Burr did not believe claimant was a malingerer. He felt that her condition would result in some permanency. He opined that claimant's condition would probably preclude her from work involving a lot of lifting or where she would be either standing or sitting only. She would do better where she could maintain mobility and change her posture on a regular basis and she could probably, at that point, return to some very light waitressing. Burr concurred that claimant's permanent partial impairment to the body as a whole is somewhere between five and ten percent. Burr opined that claimant had reached her maximum improvement in approximately December, . Burr reported that claimant's leg length discrepancy McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 5 "reflects into the hip and into the sacrum, because of the short leg length, then the pelvic base or the hips are not even, which would make the right hip low. That compensates then into the lumbar spine." He felt that all of the foregoing creates a minor mechanical problem within the sacroiliac mechanism, consistent with "all of this.O He reported that claimant does wear a shoe lift, which then "puts things more in balance," however. Bernard Kratochvil, M.D. initially saw claimant and reported that examination of the back revealed tenderness to pressure in the lower lumbar area, especially over the right buttock. Straight leg raising did not seem to increase pain into the right lower extremity. Reflexes in the lower extremity were good as was strength and there was no sensory disturbance. The impression was of contusion of the lower back with contusion of the right sciatic nerve. Claimant was hospitalized on October 11, 1985 with considerable pain in the right lower extremity. The trochanteric area was injected with steroids, but without a great deal of improvement. Physical therapy caused gradual improvement and claimant was discharged October 18, 1985. Dr. Kratochvil reported, on December 3, 1985, that claimant had been readmitted to the hospital. An EMG study did not show any particular nerve root abnormality, but on account of persistent pain, a lumbar myelogram was performed. Claimant was reported as having a disc herniation at the last lumbar level and the sacrum characterized as the L6-Sl level. Behrouz Rassekh, M.D., saw claimant in consultation and felt that conservative care should be pursued as he did not feel the Sl radiculopathy correlated with clinical findings. On February 4, 1986, Dr. Kratochvil reported that claimant had been unable to work since September 13, 1985, was continuing to be treated conservatively and would be unable to return to work for an indefinite time. On April 16, 1986, Dr. Kratochvil reported that claimant had taken medication to alleviate her symptoms which had resulted in constipation which was indirectly related to the work-related incident. On August 11, 1986, Dr. Kratochvil indicated that he had seen claimant as of that date and that she still had symptoms relating to her back and right lower extremity and that further conservative care as well as continuation with Back School was appropriate. He estimated that claimant had a ten percent permanent partial impairment of her back as a result of her injuries. The doctor reiterated his permanency opinion on October 14, 1986. On October 14, 1987, Dr. Kratochvil reported that, when last examined on August 13, 1987, claimant had continuing complaints with her back and had not reached maximum medical improvement. Deanna J. Rogge, D.C., saw claimant for examination on January 6, 1986. She reported that claimant had reportedly incurred a fall at work on September 13, 1985, but that claimant's history to the accident was not significant as it McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 6 related to her present injury. During consultation, claimant complained of low back pain with radiation into both buttocks, right posterior leg pain and numbness to the toes, right shoulder and neck pain, and thoracic pain rotating into the anterior chest. Claimant's gait was irregular with stiff and slow movements. on palpation of claimant's head, neck, shoulder girdle, thorax, lumbo-pelvic region, and extremities, marked muscle spasms were displayed of the bilateral gluteal, lumbar and thoracic paraspinal and trapezious muscles. Tenderness was elicited in the gluteal muscles bilaterally and paraspinal muscles from L5-Ll. Orthopaedic examination revealed a positive Kemps bilaterally, Lewin, Braggard bilaterally, Laseques bilaterally, Ely and Nachlas bilaterally, Foramina Compression to the right and Valsalva maneuver. Neurological examination revealed reduced patellar reflex bilaterally. Range of motion tests, as measured visually, demonstrated pain in all ranges of motion of the cervical and lumbar vertebrae. X-ray studies of the cervical area revealed a slight reversal cervical curve. Thoracic x-rays revealed an elevated right shoulder and mild scolosis curve and moderate degenerative changes. Lumbar x-rays revealed a decreased disc space at L5-Sl and moderated spurring of the anterior aspects of the lumbar vertebrae bodies. Slightly elevated left hip concave curve to the left of the lumbar spine was also noted. Claimant's injuries were interpreted as acute traumatic subluxation strain and sprain of the lumbar spine with resultant intervertebral disc syndrome with attendant extension neuralgia parasthesia. Chiropractic manipulation as well as heat and ultrasound were administered. A lumbosacral support belt was also used. Claimant was instructed to avoid sitting, lifting, and bending. Prognosis was rated as guarded and it was reported that post traumatic pathology was probable since the principal injury was one of ligamentous and muscular sprain and strain to the joints. On March 5, 1986, Dr. Rogge reported that claimant had had a return of normal sensation in both legs and in her left arm and an increase in her patellar reflex for both right and left legs. She reported that claimant was still experiencing a great deal of pain, but stated that it was of less intensity and that claimant's ranges of motion had increased. On May 7, 1986, Dr. Rogge reported that claimant would not be able to be employed for several years. She recommended that claimant refrain from sitting, lifting, bending or twisting. Lilly M. Stoller, M.D., reported on January 23, 1986 that she had seen claimant for a one-time evaluation of her pain upon referral from Dr. Weber. She characterized claimant as a quite hysteroid young woman who sees herself as having a great deal of insight in a psychological sense when mainly there is a emotional reaction to the situation and a looking for an easy solution. Dr. Stoller reported that claimant truly does not believe she has psychophysiologic or conversion symptoms "and I see it as likely that may well be present." The doctor reported that claimant had a traumatic car accident in September, 1979 leaving her with her leg broken in four places. The doctor stated: My best guess psychodynamically is that this current accident is re-triggering the unresolved feelings from McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 7 the previous accident of September 1979 which was of course very severe. The doctor further stated: ...I think this woman has difficulty resolving her feelings but is pretty unaware of this difficulty and would be difficult to do therapy with at the present time. I think if she could ever own what those problems are perhaps she could be helped more. Daniel L. McKinney, M.D., reported that he had examined claimant on March 14, 1986 and found no reflex change, weakness or sensory loss and noted no muscle spasm in her back. He believed that claimant had suffered a chronic lumbar strain and recommended further chiropractic treatment or possibly a swimming or light exercise program as in her best interest., On June 11, 1986, Dr. McKinney reported that he had not seen claimant since the initial examination of March 14, 1986 and that, at that time, he did not have any neurosurgical treatment to render her. He opined that, in view of the chronicity of her symptoms, he would anticipate a permanent partial "disability" of approximately five percent of the body as a whole. Michael J. Morrison, M.D., examined claimant on May 6, 1986. He reported that claimant walked with a limp because of her right leg shortening, but that forward flexion of her cervical McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 8 and lumbar spine was full with no gross muscle weaknesses in either her upper or lower extremities, biceps, triceps. Knee jerks and ankle jerks bilaterally were 1+/4+ and straight leg raising was negative bilaterally. The doctor reported that claimant's symptoms were all related to soft tissue strain and could easily be managed with abdominal flank muscle strengthening exercises supplemented with bicycle riding or swimming. He reported that when claimant was asked whether previous physicians would allow her to exercise, she stated emphatically that none would allow her to do so. He indicated that, upon review of her records, it was well outlined that Dr. Kratochvil had tried to reinforce this to her. Dr. Morrison opined that, after three of four weeks of performing appropriate exercises as well as bicycling or swimming, claimant could return to her prior job without restriction. He further stated that the injury should not result in permanent [impairment] and that, if after three of four weeks of exercising, claimant was unable to return to work, psychological testing should be obtained to rule out any possible functional overlay. On May 1, 1987, Dr. Morrison reported that he had seen claimant on April 29, 1987. He reported that claimant's examination continued to reveal no objective evidence of any muscle weakness or atrophy, reflex changes or straight leg raising findings. He reported that he explained to claimant that she had reached maximum medical recovery, that no further medical treatment was indicated and that no permanency was anticipated from her injury. Dr. Morrison is associated with Orthopedic Clinic, P.C. Dennis R. Green, D.C., reported that thermography of December 15, 1986 showed findings consistent with right C5 nerve root irritation and left C6-7-8 nerve root irritation correlating with claimant's symptomatology and clinical findings. Dr. Green reported that thermography of December 5, 1986 showed findings consistent with right L5-Sl nerve root irritation and correlated with the patient's symptomatology in clinical findings. He reported that the abnormal vascular heat emission patterns in the right posterior thigh and right posterior calves were consistent with the L5-Sl nerve root irritation, but may be considered equivocal due to extensive injury to the right thigh in a prior injury in 1979 as evidenced by the cicatricial area in the right thigh. Dr. Green diagnosed claimant's conditions as chronic sprain of the lumbosacral spine with right sciatic neuropathy and chronic sprain of the cervical spine with brachial neuropathy. Medical costs in evidence are as follows: Dennis Green, D.C. $ 829.99 Broadway Chiropractic Clinic 1,565.00 Medical Anesthesia Associates 475.00 The Physicians Clinic 2,125.00 Bernard Kratochvil, M.D. 210.00 Mercy Hospital 281.25 Daniel McKinney, M.D. 50.00 Jennie Edmundson Hospital 1,803.25 Cogley Medical Associates 202.00 Lilly M. Stoller, M.D. 60.00 Emergency Care Division 97.00 Walgreens 357.13 McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 9 Bluffs Neurosurgical Associates 285.00 Omaha Neurological Clinic 90.00 Neurosurgical Assoc. of Council Bf. 75.00 APPLICABLE LAW AND ANALYSIS We shall first consider the rate issue. Defendants contend that claimant was a part-time employee. Claimant contends she was hired as a full-time employee at a rate of $5.00 per hour for a maximum of 40 hours per week. Claimant further contends that she worked as the only waitress in the establishment and earned a minimum of $200 per week in tips. Claimant is single with two children. Claimant testified that she was initially paid $4.50 per hour, but at a later point, earned $5.00 per hour. No records as to claimant's wages or tips were submitted into evidence. Defendants did not offer any testimony contradicting claimant's testimony, but for questioning claimant as to whether she had earned $1,065 while working for Aunt Bea's. Claimant testified that she worked full-time from 10:00 a.m. until 6:00 p.m., six days per week. While we do not find claimant an altogether credible witness, we find that employer's total failure to participate in the arbitration, either by providing direct testimony or by providing documentary evidence of the employer's position compelling. Claimant's testimony is accepted. Claimant was apparently earning $5.00 per hour and working 48 hours per week when injured. Such would represent a gross wage of $240.00. Claimant's testimony that she earned $200 per week in tips is not unreasonable, given the nature of the business in which claimant worked and the extended hours during which she worked. Claimant testified that approximately one-third of her tips were given to the cook who was also on duty in the afternoon. Hence, claimant's estimated tip earnings are reduced by one-third to $133.00. Claimant's gross weekly wage then is $373.00. The basis for compensation is governed by section 85.36(6). (It is not altogether clear whether claimant had worked 13 calendar weeks prior to her injury. The result would remain the same, even if the basis of compensation was section 85.36(7), however.) Claimant is single and entitled to two exemptions. The applicable rate of weekly compensation is $229.06. The parties have stipulated that claimant's injury was causally related to temporary total or healing period disability, but claimant contends she is entitled to a running award as she has not yet reached maximum medical improvement and defendants contend that claimant's condition had stabilized as of October 14, 1986. As claimant's condition is found to have produced permanent disability as discussed below, our current concern is with healing period and not temporary total disability. Section 85.34(l), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or, (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 10 benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Company, Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 485 (1984). Healing period ends upon the return to work or at the point of maximum medical recovery. Continuing to receive medical care, which is maintenance in nature, does not extend the healing period beyond the point where claimant actually stopped improving. Armstrong Tire & Rubber Co. v. Kubli, Iowa App. 312 N.W.2d 60 (Iowa 1981); Derochie v. City of Sioux City, II Industrial Commissioner Report, 112 (1982), District Court Appeal, remanded for settlement. On May 7, 1986, Dr. Rogge reported that claimant would be unable to be employed for several years. On May 6, 1986, Dr. Morrison reported that claimant would be able to return to a prior job without restriction after three or four weeks of performing appropriate exercises as well as bicycling and swimming. On June 11, 1986, Dr. McKinney opined that claimant had a five percent body as a whole permanent partial "disability.O On August 11, 1986, Dr. Kratochvil indicated that claimant a ten percent permanent partial impairment of her back and reported that she still had symptoms relating to her back and right lower extremity. He advised further conservative care as well as continuation with Back School. In his March 17, 1987 deposition, physical therapist Jay Burr opined that claimant had reached maximum medical healing as of approximately December, 1986 and reported that she had miss approximately 15 physical therapy sessions originally scheduled from January through March 17, 1987. On October 14, 1987, Dr. Kratochvil reported that claimant had continued to have complaints relative to her back when last examined on August 13, 1987 and that claimant had not reached maximum medical improvement. The fighting issue here is the nature of claimant's care following assignation of permanency ratings in June and August, 1986. Claimant's symptoms and requirements for care following such dates were not noticeably different from her symptoms and requirements for care on or prior to such dates. While both Dr. Kratochvil and Dr. Rogge, and to a lesser extent Mr. Burr, indicate that claimant will need continuing care for her symptoms, they do not indicate the treatment will improve her underlying condition. Indeed, the record does not disclose that Dr. Kratochvil had seen claimant from his August 11, 1986 examination through his August 13, 1987 examination. Such an extended time without treatment by one's primary medical physician would suggest a stabilized medical condition. Likewise, treatment by Dr. Rogge also appears to have been primarily geared to reduction of symptomatology within the last year. Mr. Burr had seen claimant on a fairly regular basis from April, 1986 until approximately December, 1986. He had characterized her condition as chronic, however, and had indicated she would need ongoing treatment. All of the above suggests that, at least as of the date Dr. Kratochvil assigned claimant a permanency rating, that is, August 11, 1986, claimant's condition had stabilized to the point where she could be legally characterized as having reached maximum medical improvement. We accept that as the date upon which healing period benefits terminated. We reject the opinions of Dr. Kratochvil and Dr. Rogge regarding their views that claimant had McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 11 not yet reached maximum medical improvement and claimant's non-employability. Each, when taken in the context of the practitioner's overall involvement with and discussion of claimant's condition, suggests that the practitioner was equating a continuing need for medical treatment with an absence of maximum medical improvement. We consider the question of whether a causal relationship exists between claimant's injury and claimed permanent partial disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of September 13, 1985 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 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 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). Dr. Kratochvil has indicated that claimant has a ten percent permanent partial impairment of her back as a result of her injuries. Dr. Morrison has reported that claimant has no permanency and has stated that she could return to her prior job without restriction after appropriate treatment. He characterized claimant as resisting offered treatment options of exercise and programmed exercises. Dr. Stoller, a psychiatrist, felt that psychophysiological conversion symptoms may well likely have been present in claimant's condition. She further surmised that claimant's work injury was retriggering unresolved feelings from her previous accident of 1979 in which claimant had broken her leg in four places. The doctor thought claimant had difficulty resolving her feelings, but was pretty unaware of this difficulty which would, in turn, create difficulties in conducting therapy with claimant as of the time of her examination. Mr. Burr had reported that claimant's leg length discrepancy "reflects into the hip and into the sacrum, because of the short leg length, then the pelvic base or the hips are not even, which would make the right hip low. That compensates then into the lumbar spine.O He believed that created a minor mechanical problem within the sacroiliac mechanism which he stated was consistent with Oall of this." Burr had reported that claimant had a chronic strain of the lumbar spine extending into the sacrum. Other physicians and practitioners did not render McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 12 opinions relevant to the causal relationship issue. Dr. KratochvilOs opinion as claimant's primary treating medical practitioner is entitled to substantial weight. Dr. Kratochvil only relates claimant's permanent partial impairment to her back to her injuries. (We note that the term "injuries" as used in the doctor's opinion is somewhat ambiguous as it is not altogether clear that Dr. Kratochvil is speaking only of claimant's work injury and not of her previous automobile and motorcycle accidents. The doctor's medical reports overall reference only to the work injury, however. On that basis, we surmise that the doctor's opinion is as to causal connection to the work injury.) Claimant's back condition, as such is evidenced by the ten percent permanent partial impairment rating of Dr. Kratochvil and the five percent permanent partial rating of Dr. McKinney, is found to be causally related to her work injury. Claimant's multiple other symptoms and complaints are not found to be so related. Claimant's complaints are, in the experience of this deputy, atypical of those seen from the injury as described. Their multiplicity supports Dr. Stoller's conclusion that claimant is a hysteriod personality, sustaining a conversion reaction. They further suggest that claimant's physical problems, in part, may relate to her leg fracture previously, and not to her work injury. We reach the question of entitlement to section 85.27 benefits. McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 13 We are perplexed as to the nature of this issue. Under the section, claimant is entitled to payment of all medical costs related to a compensable injury and authorized by the employer. Pursuant to the pre-hearing report, the parties stipulated as to both the issue of causal connection to the work injury and the issue of authorization indicating that medical services were both authorized and causally connected to the work injury. Given those stipulations and the lack of any evidence in this record directly contrary to those stipulations, defendants are ordered to pay medical costs in evidence. We reach the question of permanent partial disability entitlement. 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, 10 N.W.2d 569 (1943). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co., (Appeal decision, October 31, 1980) the Industrial Commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 14 an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden v. Big Ben Coal Co., supra. Claimant has, at most, a ten percent permanent partial impairment rating. Mr. Burr has opined that she could possibly attempt a return to some light-duty waitressing. Claimant is a bright individual with a variety of previous skills. She has shown a capacity for additional education and appears to be a good candidate for vocational rehabilitation, should she so choose. She is a younger worker and that also would be a factor in her favor, should she choose further schooling or retraining. Without such, even though claimant appears to be restricted as to her ability to either stand or sit over a prolonged period, it does appear that there may well be employments in which claimant would have the physical mobility which she requires, but which would utilize her previous talents. Claimant has not sought other employment. That fact, as well as claimant's choice to discontinue the schooling that she had attempted following her injury, raise doubts as to claimant's motivation to improve her present condition. They also make it difficult to assess the reliability of claimant's own testimony regarding what she can and cannot do at this time. While defendants are required to compensate claimant for her loss of earning capacity, defendants are not to be penalized for claimant's own lack of motivation and initiative. When all factors set forth above are considered, claimant is found to have sustained a permanent partial disability of 20% of the body as a whole. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant is 30 years old, single, with two minor children. Claimant is a high school graduate with prior work experience as a secretary, bookkeeper, receptionist and waitress. Claimant worked as a waitress and bartender for Aunt Bea's Restaurant. She also had minor bookkeeping duties at the restaurant. Claimant worked from 10:00 a.m. until 6:00 p.m. six days per week at the restaurant. Claimant's salary, when first employed, was $4.50 per hour and her salary, when injured, was $5.00 per hour. Claimant earned approximately $200 per week in tips and gave approximately one-third of that amount to the restaurant cook. Claimant's gross wage was $373.00 per week. Claimant received an injury arising out of and in the course McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 15 of her employment on September 13, 1985 when she slipped and her feet went out from under her while working. Claimant was treated conservatively following that injury. Treatment claimant has received over at least the last year has been designed to reduce her symptomatology and not to alleviate her overall condition. Dr. Kratochvil, claimant's primary treating physician, assigned claimant a permanent partial impairment rating on August 11, 1986. Claimant reached maximum medical improvement on August 11, 1986. Claimant has multiple symptoms not generally characteristic of a low back injury. Dr. Kratochvil has opined that claimant's permanent partial impairment rating to her back is on account of her injuries. Claimant had had two prior vehicle accidents. Claimant had broken her leg in four places in a motorcycle accident in 1979. Claimant is likely a hysteriod individual with psychophysiological conversion symptoms. Claimant has a leg length discrepancy which creates a minor mechanical problem within the sacroiliac mechanism consistent with her current problems. Claimant's many other symptoms do not relate to her September 13, 1985 injury, but claimant's back condition generally relates to such injury. Claimant has a permanent partial impairment of from five to ten percent of the body as a whole. Claimant is a younger worker. Claimant would require a position where she could alternate between sitting and standing. Claimant has done well in previous college coursework. Claimant is bright and show's a capacity for increased education and for vocational rehabilitation. Claimant has not sought other work. Claimant is not well-motivated. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 16 Claimant's rate of weekly compensation is $229.06. Claimant has established that her injury of September 13, 1985 is a cause of the disability to her back upon which she now bases her claim. Claimant has not established that her injury of September 13, 1985 is a cause of other disabilities upon which she now bases her claim. Claimant is entitled to healing period benefits from her injury date through August 11, 1986. Claimant is entitled to permanent partial disability from her injury of September 13, 1985 in the amount of 20%. Claimant is entitled to payment of all medical costs in evidence. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for one hundred (100) weeks at the rate of two hundred twenty-nine and 06/100 dollars ($229.06) with those payments to commence on August 12, 1986. Defendants pay claimant healing period benefits from claimant's injury date through August 11, 1986 at the rate of two hundred twenty-nine and 06/100 dollars ($229.06). Defendants compensate claimant for the proportionate difference between the rate of payment and the correct rate of weekly compensation for those weeks during which benefits were paid at the rate of one hundred three and 77/100 dollars ($103.77) and the rate of thirty and 67/100 dollars ($30.67). Defendants pay accrued amounts in a lump sum. Defendants pay claimant all medical costs in evidence as such costs are outlined in the above review of the evidence. Defendants pay interest pursuant to Iowa Code section 85.30 as amended. Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendants file Claim Activity Reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of February, 1988. McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 17 HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. Michael O'Bradovich Attorney at Law 4535 Leavenworth, Suite 22 Omaha, Nebraska 68106 2701; 2906 Filed August 19, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JENNIFER MCGRUDER, Claimant, File No. 825195 vs. MEMORANDUM OF MANA BALAGNA d/b/a DECISION ON AUNT BEA'S, ALTERNATE Employer, MEDICAL CARE and IOWA INSURANCE GUARANTY ASSOCIATION, On Behalf of Insolvent Rockwood Service Corporation, Insurance Carrier, Defendants. ___________________________________________________________ 2701; 2906 Guaranty fund could not contest "arising out of" issue in alternate care proceeding because it was bound by adverse arbitration decision against the defunct carrier and defunct employer. The fund stands in a representative capacity. However, the petition was dismissed without prejudice where the fund contested causal nexus between the injury and the requested treatment. 1108, 1802, 1803, 2200 3001, 3002 Filed February 22, 1988 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JENNIFER MCGRUDER, Claimant, VS. File No. 825195 MANAS BALAGNA d/b/a AUNT BEA'S, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ROCKWOOD SERVICE CORPORATION, Insurance Carrier, Defendants. 1108, 1802, 1803, 2200, 3001, 3002 Healing period found to have ceased when treating medical physician assigned permanent partial impairment rating. Care from that point onward found related to treatment of symptoms only without affecting underlying condition. Rate found based on claimant's testimony where defendants offered no competent contrary evidence. Claimant, who was not well motivated, found to have 20% industrial disability following back injury without surgery and permanent partial impairment of between 5% and 10% of the body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JENNIFER MCGRUDER, Claimant, File No. 825195 vs. MEMORANDUM OF MANA BALAGNA d/b/a AUNT BEA'S, DECISION ON Employer, ALTERNATE and MEDICAL CARE IOWA INSURANCE GUARANTY ASSOCIATION, On Behalf of Insolvent Rockwood Service Corporation, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE Claimant's application for alternate medical care under rule 343 IAC 4.48 came on for telephone hearing on August 16, 1993. Claimant's exhibits 1-3 and defendants' exhibits 1-10 were received. A final agency decision has established that claimant sustained injury arising out of and in the course of her employment at Aunt Bea's Restaurant. Aunt Bea's was insured for workers' compensation purposes by Rockwood Insurance, now defunct. The Iowa Insurance Guaranty Association, now the real party in interest, contends that it is not bound by the earlier determination on "arising out of." It was ruled that the Guaranty Association is bound by the result in the earlier contested case, as it stands in the shoes of Rockwood Insurance in a representative capacity. However, defendants also contend that a causal nexus does not exist between claimant's current condition (and the treatment sought) and the compensable injury of September 13, 1985. This contention cannot be said to be frivolous; therefore, the case was ruled inappropriate for determination under rule 343 IAC 4.48(7). The petition was dismissed without prejudice, but defendants were barred from hereafter raising an "authorization" defense. A hearing date has already been established for trial of claimant's concurrent action for review-reopening. The undersigned has been delegated authority to issue final agency action in this matter. Appeal of this decision, if any, would be by judicial review pursuant to Iowa Code Page 2 section 17A.19. ORDER IT IS THEREFORE ORDERED: Claimant's petition for alternate medical care is dismissed without prejudice. IT IS FURTHER ORDERED that defendants are barred from asserting lack of authorization as a defense in further proceedings concerning this claim. Signed and filed this ____ day of August, 1993. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sheldon M Gallner Attorney at Law 803 Third Avenue PO Box 1588 Council Bluffs Iowa 51502 Mr D Brian Scieszinski Mr Cecil Goettsch Attorneys at Law 801 Grand Avenue Suite 3700 Des Moines Iowa 50309-2727 BEFORE THE IOWA INDUSTRIAL COMMISSIONER JENNIFER McGRUDER, Claimant, VS. File No. 825195 MANAS BALAGNA d/b/a AUNT BEA'S, A P P E A L Employer, R U L I N G and ROCKWOOD SERVICE CORPORATION, Insurance Carrier, Defendants. On February 22, 1988 an arbitration decision was filed in this contested case. On March 21, 1988 defendants filed an appeal. The essence of this matter is that defendants' appeal was filed more than twenty days after the arbitration decision was filed. Iowa Code section 86.24(l) states in part: "Any party aggrieved by a decision, order, ruling, finding or other act of a deputy commissioner in a contested case proceeding arising under this chapter or chapter 85 or 85A may appeal to the industrial commissioner in the time and manner provided by rule." Division of Industrial Services Pule 343-4.27, states in part: Except as provided in 4.2 and 4.25, an appeal to the commissioner from a decision, order, or ruling of a deputy commissioner in contested case proceedings where the proceeding was commenced after July 1, 1975, shall be commenced within twenty days of the filing of the decision, order or ruling by filing a notice of appeal with the industrial commissioner. The notice shall be served on the opposing parties as provided in 4.13. An appeal under this section shall be heard in Polk county or in any location designated by the industrial commissioner. (Emphasis supplied.) This rule clearly states that the appealing party has twenty days following the day in which the deputy commissioner's decision, order, or ruling is filed in which to file a notice of appeal with the commissioner. Iowa Code section 4.1(22) provides the method for computing time in applying Rule 343-4.27. It states in part: In computing time, the first day shall be excluded McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 2 and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday, provided that, whenever by the provisions of any statute or rule prescribed under authority of a statute, the last day for the commencement of any action or proceedings, the filing of any pleading or motion in a pending action or proceedings or the perfecting or filing of any appeal from the decision or award of any court, board, commission or official falls on a Saturday, a Sunday, the first day of January, the twelfth day of February, the third Monday in February, the last Monday in May, the fourth day of July, the first Monday in September, the eleventh day of November, the fourth Thursday in November, the twenty-fifth day of December, and the following Monday whenever any of the foregoing named legal holidays may fall on a Sunday, and any day appointed or recommended by the governor of Iowa or the president of the United States as a day of fasting or thanksgiving, the time therefor shall be extended to include the next day which is not a Saturday, Sunday or such day hereinbefore enumerated. Therefore, under Rule 343-4.27, the last day on which an appeal could be filed from the February 22, 1988 decision of the deputy industrial commissioner was March 14, 1988. The deputy's proposed decision was filed on February 22, 1988. The twenty-day period prescribed in Division of Industrial Services Rule 343-4.27 expired on March 14, 1988. Thus, the proposed decision became, by operation of law, the final decision of the agency on March 14, 1988. THEREFORE, defendants' notice of appeal is hereby dismissed. Signed and filed this 24th day of March, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. Michael O'Bradovich Attorney at Law McGRUDER V. MANAS BALAGNA d/b/a AUNT BEAOS Page 3 4535 Leavenworth, Suite 22 Omaha, Nebraska 68106 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JENNIFER MCGRUDER, : : Claimant, : : File No. 825195 vs. : : MANAS BALAGNA d/b/a : AUNT BEA'S, R E V I E W - R E O P E N I N G : Employer, : : D E C I S I O N and : : IOWA INSURANCE GUARANTY : ASSOCIATION, on behalf of : ROCKWOOD INSURANCE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Jennifer McGruder against her former employer and the Iowa Insurance Guaranty Association. Claimant seeks to reopen from the arbitration decision filed February 22, 1988. The issues to be decided are whether there has been a change of condition which warrants reopening of this case. Claimant also seeks to have surgery performed. In the event that surgery is not to be performed, she seeks additional permanent partial disability compensation. Claimant also seeks payment of outstanding medical bills. The Iowa Insurance Guaranty Association asserts that no change to warrant additional weekly benefits has occurred. The Association also asserts that it is not bound by the determinations made in the arbitration decision filed February 22, 1988, since it was not a party to that proceeding. This case was heard at Council Bluffs, Iowa, on January 7, 1994. The evidence consists of testimony from Jennifer McGruder and John McGruder. The evidence also contains exhibits 1 through 11. FINDINGS OF FACT The arbitration decision filed February 22, 1988, determined that claimant had a 20 percent permanent partial disability and awarded her 100 weeks of benefits. The decision fixed the rate of compensation at $229.06 per week. Page 2 The findings of fact made in that decision do not contain an express diagnosis of claimant's physical ailment or condition. In particular, it does not make a determination with regard to whether or not she has a herniated disc. The assessment made by the various medical practitioners as shown in the arbitration decision and in exhibit 8, does not show any consensus of opinion. In the decision itself it is noted on page six that Bernard L. Kratochvil, M.D., had reported that claimant had a disc herniation. That assessment was not predominant however as shown by the assessments made by Michael J. Morrison, M.D., Daniel L. McKinney, M.D., R. Schuyler Gooding, M.D., and Len Webber, M.D. (arb. dec. page 8; exhibit 8, pp. 3-8, 13 & 16-18). The fact that only 20 percent permanent partial disability was awarded is a strong indication that the medical condition was not considered by the arbitration deputy to be extremely disabling. Since the arbitration decision was entered, claimant has had further medical testing. While at the time of the first hearing the existence of a herniated disc was, at most, equivocal, the more recent testing shows that the disc definitely exists to a very substantial degree. (exs. 2; 3; 6; & 8, p. 15). The CT scan conducted in 1986 was interpreted by Dr. Morrison as having an equivocal disc finding while the myelogram was considered as being normal. (ex. 8, pp. 7-8). Dr. Gooding interpreted the myelogram and CT scan as being normal. (ex. 8, p. 3). The nerve conduction testing was interpreted as normal. (ex. 8, p. 4). The recent findings irrefutably show a change for the worse. Nothing in the record indicates that such a worsening was anticipated. The record in this case shows no intervening trauma since this case was initially heard. The treatment provided to claimant by practitioners is not a plausible explanation of the worsening of her condition. As indicated by Dr. Kratochvil in his more recent report of April 19, 1993, the condition of claimant's back is due to her 1985 injury. (ex. 4). No physician has even suggested that anything other than the original fall in 1985 is responsible for producing the claimant's current back difficulties. Accordingly, it is found that the fall of September 13, 1985, is the predominant cause for claimant's current back problems, including the herniated disc. Claimant has incurred medical expenses as set forth in the document entitled "Itemized Expenses." There are as follows: Bernard Kratochvil, M.D. $ 95.00 West Omaha Orthopedic Surgeons 1,216.00 Charles Taylon, M.D. 65.00 Jay J. Parsow, M.D. 240.70 Radiology Nuclear Medici 130.00 Neurological Surgery, Inc. 125.00 Page 3 (Dr. George Green) Clifford M. Danneel, M.D., 120.00 Total $1,991.70 As indicated in the arbitration decision claimant is likely a hystroid individual with psychophysiological conversion symptoms. As indicated in the arbitration decision at page seven, the conversion reaction is likely an aggravation of an emotional condition which resulted from a 1979 motorcycle accident. One of the critical issues in this case is surgery. Charles Taylon, M.D. and George M. Green, M.D., have both indicated that surgery is appropriate. Dr. Danneel seems to indicate that surgery would be a reasonable approach. (exs. 2, 3 & 5). Dr. Kratochvil states that conservative care should be attempted before proceeding with surgery. (ex. 4). It is recognized that it has now been more than eight years since the date of injury in this case. A great deal of conservative care has been provided. It appears to have produced relatively good results at times. The record of this case, however, shows a worsening since February 1991. (exs. 3 & 4). At hearing claimant stated that she was now convinced that her condition would not improve without surgery and she desires that have surgery to correct her herniated disc condition. It is noted that this file shows that on August 2, 1993, claimant filed an application for alternate medical care seeking to have surgery performed. The defendants denied that they were liable for the claimant's condition and accordingly, the agency dismissed claimant's application for alternate care since defendants denied liability for the condition. That ruling likewise barred defendants from raising an "authorization" defense should claimant seek care on her own. CONCLUSIONS OF LAW The Iowa Insurance Guaranty Association contends that it is not bound by the prior arbitration decision. That decision became final agency action by virtue of a lack of a timely appeal. Res judicata or issue preclusion applies in administrative proceedings. Board of Supervisors, Carroll Co. v. Chicago and N.W. Transp. Co., 260 N.W.2d 813 (Iowa 1977). Review-reopening proceedings are an exception to the normal rules of res judicata and issue preclusion. Sutton v. Glenwood State Hospital School, file number 896346 (App. Dec. September 28, 1993). The statutory basis for review-reopening is found in section 86.14 of the Code of Iowa. An additional basis is found in section 85.26(2). The key factor is the condition of the employee. Upon review-reopening, claimant has the burden to show a change in condition related to the original injury since the original award or settlement was made. The change may be either economic or physical. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). A mere difference of opinion of experts as to the percentage of disability Page 4 arising from an original injury is not sufficient to justify a different determination on a petition for review-reopening. Rather, claimant's condition must have worsened or deteriorated in a manner not contemplated at the time of the initial award or settlement before an award on review-reopening is appropriate. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). A failure of a condition to improve to the extent anticipated originally may also constitute a change of condition. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978). It has also been held that additional compensation may be allowed where it is shown that pertinent facts existed but were unknown and could not have been discovered by the exercise of reasonable diligence previously. Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 735 (Iowa 1968). First and foremost, the only issues to be addressed in a proceeding for review-reopening are those directly related to the claimant's disability and whether it has changed. Issues such as whether the injury arose out of and in the course of employment and the rate of compensation are not subject to relitigation. Even if such were not the rule, it would be necessary for defendants to make a showing in the nature of a change required for review-reopening. There is nothing in the record of this case which indicates that the evidence today regarding whether the injury arose out of and in the course of employment or evidence regarding the claimant's earnings is any different now than what it would have been, through the exercise of reasonable diligence, at the time of the arbitration hearing. Review-reopening is not an opportunity for a second bite at the entire apple. The fact that the Iowa Insurance Guaranty Association is now the named party rather than Rockwood has no bearing on the outcome. The Iowa Insurance Guaranty Association exits by virtue of chapter 515B of the Code of Iowa. Section 515B.5 clearly makes the Association obligated to pay covered claims against Rockwood in the same manner as Rockwood would be required to pay if it were not insolvent. The Association stands in the shoes of Rockwood for purposes of this claim and has no lawful right to relitigate those previously determined issues of whether the injury arose out of and in the course of employment and the rate of compensation. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within Page 5 the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The evidence from Dr. Kratochvil clearly establishes that the injury is a proximate cause of the disability upon which this claim is based. There is no evidence in the record which suggests anything to the contrary. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Since the defendants in this case denied liability for the claimant's condition when she sought alternate care they have lost the right to choose the care which will be provided to her. Claimant is therefore free to pursue a course of care with a physician of her choice and defendants are responsible for paying the cost of that care to the extent that the care is reasonable and that the charges are reasonable. In view of the well documented finding regarding the existence of a large herniated disc, such finding is determined to constitute a substantial change of circumstances that was not anticipated at the time the arbitration decision was issued. It is a fact which could not have been discovered at the time of the arbitration decision through the exercise of reasonable diligence. Accordingly, it constitutes good cause for reopening this case. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa Page 6 1986). Effective with the date of this decision, claimant shall be placed into a healing period status and defendants shall pay additional healing period compensation to claimant at the previously determined rate of $229.06 per week until such time as one of the three terminating events provided by the statute occurs. In making this order, it is determined that there is a reasonable expectation of improvement that is likely to occur from additional medical treatment in view of the potential for treating the herniated disc conservatively as indicated by Dr. Kratochvil or by surgery or both. Claimant may, if so indicated by her treating physician, attempt a reasonable course of conservative care for a reasonable amount of time before proceeding to surgery or before deciding to refrain from surgery. She is entitled to receive the diagnostic tests recommended by her treating physician prior to submitting to surgery. Defendants shall continue to pay weekly healing period compensation, uninterrupted, until such time as claimant's condition has been treated to a conclusion or a condition of stablization. In view of the fact that 20 percent permanent partial disability has been previously awarded and that claimant is requesting further treatment in the nature of surgery, there is every reason to believe that her extent of permanent disability may very well be no greater than that which has previously been awarded if the surgical procedure is successful. For this reason the current extent of permanent partial disability will not be determined in this decision even though there is ample evidence upon which to make a determination of the extent of increased disability if further medical care were not to be provided. Claimant also seeks to recover costs. She is entitled to recover those costs in the amounts set forth on the document entitled "Claimant Expenses/Court Costs. The amount thereof totals $292. Claimant is entitled to recover the medical expenses which have been entered into evidence in this case. This recovery is limited to expenses incurred since the arbitration hearing. ORDER IT IS THEREFORE ORDERED that defendants pay Jennifer McGruder weekly compensation for healing period at the rate of two hundred twenty-nine and 06/100 dollars ($229.06) per week commencing on the date of this decision and continuing thereafter for so long as she remains entitled to receive healing period compensation in accordance with the terms of this decision and section 85.34(1) of the Code of Iowa. It is further ordered that defendants promptly pay the medical expenses that claimant incurs in obtaining treatment for her back condition, including diagnostic tests, conservative care, evaluation, and surgery, all in accordance with the provisions of this decision. Defendants shall not have the right to choose the care since they Page 7 denied liability for the condition. It is further ordered that defendants pay the following medical expenses incurred by claimant: Bernard Kratochvil, M.D. $ 95.00 West Omaha Orthopedic Surgeons 1,216.00 Charles Taylon, M.D. 65.00 Jay J. Parsow, M.D. 240.70 Radiology Nuclear Medi 130.00 Neurological Surgery, Inc. 125.00 (Dr. George Green) Clifford M. Danneel, M.D., 120.00 Total $1,991.70 It is further ordered that defendants pay to claimant the sum of two hundred ninety dollars ($292) representing costs pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency. Signed and filed this __________ day of March, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies to: Mr. Cecil Goettsch Mr. D. Brian Scieszinski Attorneys at Law 801 Grand Ave STE 3700 Des Moines, Iowa 50309-2727 Mr. Sheldon Gallner Attorney at Law 803 3rd Ave PO Box 1588 Council Bluffs, Iowa 51502 2905 2501 2701 1802 Filed March 9, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ---------------------------------------------------------------- JENNIFER MCGRUDER, Claimant, File No. 825195 vs. MANAS BALAGNA d/b/a AUNT BEA'S, R E V I E W - R E O P E N I N G Employer, D E C I S I O N and IOWA INSURANCE GUARANTY ASSOCIATION, on behalf of ROCKWOOD INSURANCE, Insurance Carrier, Defendants. ---------------------------------------------------------------- 2905 Claimant was diagnosed with a herniated disc subsequent to the arbitration hearing, Such was a basis for review-reopening. It was held that in a review-reopening decision, the Iowa Insurance Guaranty Association stands in the shoes of the insolvent insurer and is not entitled to relitigate the issues of injury arising out of and in the course of employment and the rate of compensation. 2501 2701 Claimant had brought a proceeding seeking alternate care but defendants denied liability and they were prohibited from raising authorization as a defense. Claimant sought for surgery and was allowed to select her own care at defendants' expense subject to the care. 1802 1803 Claimant awarded healing period commencing with the date of the decision and to continue indefinitely in accordance with the statute while the ordered care is being provided. Permanent partial disability was not addressed since the amount previously awarded might ultimately be determined adequate if the expected surgery is successful. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ WILLIAM E. JARRETT, JR., Claimant, vs. File No. 825200 CHURCHILL TRUCK LINES, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 5, 1993 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. William Bauer Attorney at Law P.O. Box 517 Burlington, Iowa 52601 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801-1596 5-1803 Filed November 18, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM E. JARRETT, JR., Claimant, vs. File No. 825200 CHURCHILL TRUCK LINES, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Claimant awarded permanent total disability benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : WILLIAM E. JARRETT, JR., : : Claimant, : : vs. : : File No. 825200 CHURCHILL TRUCK LINES, 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 : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by William E. Jarrett, Jr., claimant, against Churchill Truck Lines, Inc., employer, and Liberty Mutual Insurance Company, both as defendants. Mr. Jarrett bases his claim upon an injury arising out of and in the course of his employment on May 19, 1986. The record in this case consists of the testimony from the claimant; Steve Waterman, the Mediapolis High School Superintendent; G. Brian Paprocki, a vocational consultant; Marilyn Marshall, claimant's sister-in-law; and, Kathryn Jarrett, claimant's wife; claimant's exhibits 1 through 4; and, defendants' exhibits A through P. This matter came on for hearing before the undersigned deputy industrial commissioner on December 18, 1992, at Burlington, Iowa. issue The sole issue to be determined is the nature and extent of claimant's disability. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received and having presided at the hearing, finds the following facts: Claimant, William Jarrett, was born on February 5, 1955, and was 37 years old at the time of the hearing. He is married and has two sons ages 19 and 15. Claimant completed the ninth grade, but quit school while he was a sophomore in high school. He attempted to earn his GED in July of 1988, but was unsuccessful due to his inability to Page 2 sit comfortably during class. Claimant's employment history is concentrated in the general labor field. In 1973, he began working as a gas station attendant, a job he held for approximately three years. He then became an employee of First Mississippi Company and worked as a general laborer. From 1973 to 1974, claimant worked for U.S. Borax as a general laborer. His job duties included stacking onto pallets or boxcars boxes of soap weighing approximately 35 pounds. In 1974, claimant began working for U.S. Gypsum Company. Claimant received several promotions during his ten years with U.S. Gypsum, and received on-the-job training in mechanics. In November of 1978, claimant began working for defendant Churchill Truck Lines. Claimant received on-the-job training as a diesel mechanic and was instrumental in the repair of various engine parts for semi trucks, including heavy wheels, motors, lights, floorboards, clutches and differentials. At times, claimant was required to lift between 125 to 170 pounds. His job duties required him to perform an extensive amount of bending and twisting. Claimant described his occupation as "heavy" labor. Claimant stated that he worked continuously from his date of hire until his injury in May of 1986. Claimant first began to experience problems on May 14, 1986. While performing his job duties, he felt pain in his low back and legs. He was sent to the company doctor, J. Kivlahan, M.D. Dr. Kivlahan is a general surgeon located in Burlington, Iowa. Dr. Kivlahan's notes do not reflect any treatment on May 14, 1986 but contain entries for an incident reported on May 19, 1986. Specifically, a surgeon's report notes that claimant sustained a strain in the left inguinal region which resulted in acute low back strain and a possible herniated disc. Results of x-rays of the lumbosacral area were negative, and claimant was referred to an orthopedic surgeon. Claimant was also hospitalized in June of 1986 (Joint Exhibit B, pages 1-13). Claimant was first referred to Harry Honda, M.D., a neurological surgeon, who recommended claimant undergo a myelogram and a CT scan (Jt. Ex. E, pp. 1-2). Claimant was then seen by Duane Nelson, M.D. Dr. Nelson's notes indicate that therapy undertaken by claimant had been unsuccessful, and he was to be hospitalized again in July of 1986. Dr. Nelson finally diagnosed a disc prolapse or herniation at the L5-S1 level. He recommended epidural steroid injections, and referred claimant to physicians at the University of Iowa Hospitals and Clinics (Jt. Ex. C, pp. 5-6 and 8-12). In August of 1986, claimant was treated by numerous physicians at the University of Iowa Clinics, including Doctors Weinstein, Walsh, Noe and Kumar. Initially, claimant was diagnosed with low back pain of unknown etiology. It was recommended that he continue conservative management and return to work with no activity restrictions. Page 3 Claimant was referred to the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals for inpatient rehabilitation (Jt. Ex. D, pp. 1-3). Apparently, claimant attempted a return to work but was unable to perform his job duties. Dr. Kivlahan then referred claimant to the Steinndler Clinic, where claimant was treated by W. Pontarelli, M.D., and E. Law, M.D. Dr. Pontarelli reviewed the myelogram and the CT scan and was of the opinion that claimant had a central herniated disc with a likely extruded fragment in the sacrum of the spine. He believed claimant had been through a sufficient trial of conservative treatment and admitted claimant for a discectomy which was performed on September 15, 1986 (Jt. Ex. F, pp. 1-6). As part of his postoperative treatment plan, claimant began a progressive work hardening program to increase flexibility in his back (Jt. Ex. F, pp. 9-10). In January of 1987, claimant returned to Mercy Hospital in Iowa City. Dr. Law recommended a second discectomy which was performed on February 10, 1987 (Jt. Ex. F, pp. 22-23 and 26). Postoperative treatment included exercises recommended by Dr. Law who eventually recommended a functional capacity assessment at the Burlington Medical Center. The results of the assessment indicated that claimant should not perform repeated standup lifts, avoid kneeling for more than five minutes at a time, avoid lifting or moving any objects weighing more than 20 pounds. Claimant could pull a maximum of 45 pounds and push a maximum of 55 pounds. He was not to perform any repeated bending movements beyond two minutes at a time and was unable to sit for more than ten minutes. Claimant could not stand for more than nine minutes and was not to perform prolonged walking of more than ten minutes without rest. Claimant was unable to carry more than ten pounds more than 100 feet. He was to avoid repeated stair climbing and was not to climb ladders. He was not to perform any repetitive bending or stooping. Impairment ratings included a 15 percent impairment of the right lower extremity secondary to pain and loss of strength and a 15 percent impairment of the body as a whole based on loss of motion in the lumbar spine. An additional 5 percent impairment was assessed to claimant based on the residuals of two disc surgeries. As a result, Dr. Law found claimant to have sustained a 24 percent impairment to the body as a whole (Jt. Ex. F, pp. 39-40). Claimant then undertook an aggressive vocational rehabilitation campaign with Pam Hirshberg and Karen Hogberg. The counselors recommended that claimant take the GATB test and although the scores are provided to the undersigned, the interpretation of the scores was not. Claimant expressed interest in obtaining his GED and interest in pursuing the JTPA program. Throughout the vocational rehabilitation reports, in excess of 50 pages, there are references to claimant's physical condition and his inability to perform the type of work which he performed Page 4 prior to the accident. At one point, the counselors suggested volunteer work, and in the end were unable to help claimant secure a suitable employment. Claimant did not pass the GED test. After continued problems with his low back and right leg, claimant returned to Dr. Law who referred him to the Institute For Low Back Care in Minneapolis. Claimant met with Alexander Lifson, M.D., who recommended claimant undergo surgery for implantation of a spinal cord neurostimulator. Apparently, the insurance carrier for the employer felt the costs of the procedure were too high, and did not authorize the surgery. Claimant was scheduled for an appointment with William Boulden, M.D., in Des Moines (Jt. Ex. J, pp. 50-52). Claimant first met with Dr. Boulden in November of 1988. A physical examination showed that claimant had a "very positive" straight leg raising test result on the right side. Reflexes were absent in the right ankle and claimant displayed decreased sensation on the right side at the L5-S1 level. Claimant showed a marked limitation of left and right lateral bending, extension and forward flexion. Dr. Boulden was of the opinion that claimant had two failed back discectomies at the L5-S1 level. He indicated that claimant may have a damaged S1 nerve root and proposed that a neural stimulator may be the only choice of treatment. However, Dr. Boulden recommended that further testing in the form of a discogram and further treatment of facet blocks be used prior to the implantation of the neural stimulator (Jt. Ex. G, p. 1). Apparently, Dr. Boulden reviewed an MRI and recommended claimant undergo diagnostic injections. Approval for the same was slow in coming from the insurance carrier, and claimant was eventually scheduled for outpatient surgery in the form of a facet block and discogram (Jt. Ex. G, pp. 1- 2). After reviewing the results of the facet block and discograms, Dr. Boulden recommended claimant undergo an anterior fusion to stabilize his spine at the L5-S1 level (Jt. Ex. G, pp. 3-4). This procedure was performed on March 29, 1989, at the Iowa Lutheran Hospital in Des Moines, Iowa. He was referred to the manual therapy center for a physical therapy program designed to provide pain relief and enhance his overall functional capabilities. It was recommended that claimant be provided a rehabilitation program in Iowa City due to the distance between his home and Des Moines. Again, it appears that the insurance company was slow in authorizing such therapy and even Dr. Boulden became frustrated that claimant's rehabilitation therapy was delayed (Jt. Ex. G, p. 11). Claimant finally received physical therapy in Iowa City approximately six or seven months after it had been recommended. Upon release from Dr. Boulden in January of 1990, he provided the following restrictions: Page 5 Based on our last examination of Mr. Jarrett, we feel that he will need to return to a job that entails no lifting, bending, twisting, pushing or pulling with his back. He is also to engage in no sitting/standing for greater than 45 minutes at a time. Weight restrictions, of course, would be based on a functional capacities evaluation. (Jt. Ex. G, p. 16) Upon receipt of the restrictions, the employer, Churchill Truck Lines, developed an opening for on-the-job training of the computer system for the shop. David Edwards, the director of safety and personnel, stated that the position would require claimant to stand or sit for less than 45 minutes at a time, and would also include light janitorial work such as sweeping, cleaning and painting. Claimant would also have to supply and stock light truck parts such as seals and lights (Jt. Ex. G, p. 18). When claimant returned to work on November 5, 1990, he was required to stand on a cement floor. The employer refused to cover the floor with carpet or a rubber mat because of the potential safety hazards involved. Claimant was also willing to buy a special orthopedic chair which would enable him to sit more comfortably, but the company refused to allow claimant to supply a chair due to the limited office space. Claimant had initially started work for 40 hours per week. Eventually, he began working eight hours per day every other day, then four hours every day, and eventually four hours every other day. He testified that his low back and right leg continued to hurt and that he sometimes fell due to loss of strength in his right leg. This, coupled with supposedly good natured but very insensitive teasing from fellow coworkers, caused claimant to leave his position with Churchill Truck Lines. In May of 1991, claimant received a formal letter of termination from the company (Claimant's Exhibit 2). Claimant currently receives social security disability payments. The most recent activity restrictions can be found from a report from the Spine Diagnostic and Treatment Center dated April 10, 1991. Apparently, this is a six month rehabilitation follow-up report which suggests that claimant would no longer be able to continue with any work situation at Churchill Truck Lines (Jt. Ex. K, p. 44). Defendants offered exhibit M, a video tape of claimant's activities during a move by the school district from one building to another. The undersigned reviewed the entire tape. When claimant was shown, he was walking, standing and carrying a clipboard. In one sequence, he jogged a short distance to a truck, climbed in, and drove it a short distance. The video was shot in the summer of 1990. Since that time, claimant has experienced several falls due to weakness in his right leg. A physician prescribed a walker, and claimant was using a cane while at the hearing. ANALYSIS and conclusions of law Page 6 The sole issue to be determined is the nature and extent of claimant's disability. As claimant has sustained an injury to the body as a whole, an evaluation of his industrial disability is warranted. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., Page 7 (Appeal Decision, March 26, l985). At the time of the injury, claimant was 31 years of age. His work history has been focused primarily in the heavy labor type positions. Claimant does not possess a high school diploma, and failed to obtain his GED due to low test scores which he blames on his inability to sit for extended periods of time. Many attempts at vocational rehabilitation were undertaken, but to no avail. With three back surgeries and claimant's non-achievement in the educational aspect of his life, he is not an attractive employee. In fact, the employer at the time of the injury was very reluctant to re-employ claimant after the surgeries, and showed almost a total disregard for claimant's plight in trying to accommodate his physical limitations via proper equipment and recommended changes in the work station. The job finally offered to claimant paid approximately one-half of what claimant had been earning at the time of the injury. Claimant is unable to return to the work he was performing at the time of the injury. This in and of itself makes his industrial disability great. Claimant has been saddled with very limited activities due to his medically imposed restrictions. Most notably, he is unable to lift more than 20 pounds. He is not to perform any bending, twisting, pushing or pulling with his back. He cannot sit or stand for more than 45 minutes at a time. It is difficult to imagine what type of job claimant could secure and satisfactorily perform given these restrictions. Although defendant employer offered employment, the undersigned is skeptical about whether the employment was suitable for claimant and his physical limitations. Likewise, a mere offer of employment, without additional cooperation to accommodate claimant's limitations is unacceptable to the undersigned. Claimant is a long-term employee with the defendant employer with experience in little else other than as a mechanic. Claimant's actual loss of earnings, coupled with his restrictions on any activities he performs, will make him a difficult person to place in gainful employment. As a result, it is found that claimant is permanently, totally disabled. order THEREFORE, it is ordered: That claimant is entitled to permanent total disability payments paid at the rate of three hundred fifty-six and 48/100 dollars ($356.48) per week commencing on November 1, 1990. That defendants shall pay interest on benefits herein Page 8 as set forth in Iowa Code section 85.30. That defendants shall receive credit for weekly benefits previously paid. That defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of January, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr William Bauer Attorney at Law 100 Valley St P O Box 517 Burlington IA 52601 Mr Greg A Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 5-1803 Filed January 5, 1993 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : WILLIAM E. JARRETT, JR., : : Claimant, : : vs. : : File No. 825200 CHURCHILL TRUCK LINES, 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 : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant awarded permanent total disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CINDY ROBERTS, Claimant, File Nos. 825371 831987 VS. ARMOUR PROCESSED MEAT COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and HARTFORD INSURANCE GROUP, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Cindy Roberts, against Armour Processed Meat Company, employer, and the Hartford Insurance Group, insurance carrier, defendants, to recover benefits as a result of alleged injuries on May 28, 1986 and August 28, 1986. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa, on October 26, 1989. The record consists of the testimony of claimant, Roger Marquardt, Kathryn Bennett, and Bruce Heitmann; joint exhibits 1 and 2. ISSUES The issues the parties set out in the prehearing for resolution are the same for both injuries, namely: 1. Whether claimant's injuries arose out of and in the course of claimant's employment; 2. Whether claimant's alleged disability is caSUally connected to the respective injury; 3. The nature and extent of claimant's disability; and 4. Claimant's entitlement to medical benefits under Iowa Code section 85.27. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 2 REVIEW OF THE EVIDENCE Claimant testified she is 33 years old and has only a high school education. Claimant described her jobs beginning in high school until she began working for the defendant employer on December 19, 1983. These prior jobs involved working as a cashier, sales clerk and stocker at K-Mart; a laborer at A.M.P.I. (Associated Milk Producers); as a laborer at Amana Refrigeration, driving a forklift and working on the lines spot welding; and a chicken sexer and machine cleaner at Hy-Cross Chicks. She said her hourly wages ran between minimum pay to $7.00 per hour. Claimant stated that her health was good when she began working with defendant-employer on December 19, 1983. She said she had no problems with her arms, neck and shoulders at the time. Claimant described her duties at defendant employer as working first on the grill line placing fifteen strips of bacon on a piece of paper and placing them in a box. She said she was constantly lifting these fifteen pound boxes during the entire day. Claimant testified she then progressed into other jobs involving molding and scaling bacon in one pound packages and removing bacon caught in a package seal. This latter job also involved lifting a 45 pound bucket every half hour. Claimant indicated she was making $7.75 per hour at this time. Claimant said she first saw the company nurse involving her left hand on May 21, 1986, at which time the nurse gave her some Tylenol. Claimant then saw Adrian J. Wolbrink, M.D., on June 13, 1986 because of her left arm pain. The doctor took claimant off work June 16, 1986 through June 29, 1986. Claimant stated the company nurse referred her to Michael W. Crane, M.D., on September 2, 1986 due to her right hand problem. Claimant was taken off work by Dr. Crane on September 3, 1986 through September 26, 1986. Claimant indicated she had no pain at this time in her forearm. Claimant said she is right handed. Claimant said she returned to her same job of scaling. Claimant said she got along okay. She indicated that the company nurse would wrap her arm and provide Tylenol. Claimant testified she went to Dr. Crane in February 1987 as the pain got worse in her right elbow, shoulder and neck. Claimant emphasized she never had shoulder and neck pain before. Claimant said she was placed on medication, physical therapy and cortisone in her shoulder on February 16, 1987. Claimant stated she was off work again beginning on or around February 21, 1987. Claimant indicated the pain in her neck and right arm was getting worse and she couldn't stand it. Claimant said Dr. Crane sent her to Sant M.S. Hayreh, M.D., in June of 1987 for an evaluation because of the pain in her right upper extremity. She indicated the doctor ruled out carpal tunnel. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 3 Claimant indicated she worked four hours per day June 22, 1987 to and including July 10, 1987 and received temporary partial disability benefits. She said she left this work because defendant employer ran out of light duty work for her to do. Claimant said she then was referred to and saw Peter D. Wirtz, M.D., on September 29, 1987. He recommended she return to work on October 5, 1987. Claimant contends she could not work and left the next day, October 6, 1987. Claimant said she hasn't been back to work. Claimant said she was making $7.50 per hour when she left defendant employer. Claimant testified ulnar surgery was suggested to her on November 24, 1987 but she did not have it until May 1988. This surgery was performed by Sterling J. Laaveg, M.D. Claimant also testified through her deposition taken January 24, 1989 that her neck problems came on gradually the latter part of November 1986 and became worse in February 1987. Claimant could not relate to any particular incident that caused this problem. On January 24, 1989, claimant said that the only complaint was pain in her neck, right shoulder and some numbness in her hand and down her right arm. Claimant also said she was not having problem with her left wrist and indicated that problem was in May of 1986. Claimant said she has not looked for work. She indicated she started working in 1988 through a vocational rehabilitation counselor to see what she could do. Claimant revealed she currently spends the day watching television and doing light housework. Claimant acknowledged that she has competed in five to six bow and arrow tournaments while employed at Armour. She indicated she shoots once a month versus once a week before she was injured. Claimant said the bow has a 45 pound drawback, 24 pound holding weight, and the bow and arrow weighs 12 to 15 pounds. Claimant stated she also used to bowl once a week. Bruce Heitmann said he was subpoenaed to testify. He said he was familiar with the work claimant did, which involved feeding and arranging bacon. He indicated he worked seven feet from claimant in May of 1986. He described the nature of the job and the necessary hand movements involved in performing the job. Roger Marquardt, vocational rehabilitation consultant, testified as to the various records of the claimant he reviewed in arriving at his report. He characterized claimant as a low normal intellectual. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 4 Marquardt opined that claimant could not go back and do any of the work she has done this last eighteen years under Dr. Laaveg's restrictions. He emphasized claimant's past work history would be considered unskilled. He indicated there are no past skills that claimant could use in work that she is currently able to perform. Marquardt said a sedentary job would be out for claimant at her current functional level. He encouraged claimant to get a GED. He asserted that claimant is adaptable to be retrained to a degree. He said claimant has a good work record, evaluation and motivation. He emphasized age is on claimant's side. He indicated claimant is considered totally disabled at this time. Marquardt emphasized that it is best for claimant to seek a rehabilitation job with work hardening as she is deteriorating doing nothing. He agreed that if claimant hasn't looked for work since October 1987, this could show lack of motivation. Kathryn Bennett, a vocational rehabilitation consultant with Eischen Rehabilitation Services, testified that her job is to help injured workers, doctors and employers get the worker back to work. She described the information provided her by the defendants' attorney, which included claimant's medical records so she could determine claimant's employability. She concluded claimant has transferable skills and could work independently. Bennett said claimant is employable, but being off work can affect a person's motivation. Bennett acknowledged a state vocational rehabilitation report concluded claimant was not capable of competitive employment. She admitted that this final report is accepted as the entire staff's opinion. Bennett further admitted that Dr. Hines indicated claimant's cognitive ability as very low - normal to borderline mental deficiency. David A. Boarini, M.D., a neurosurgeon, testified by deposition on July 17, 1989 that he has seen claimant on two occasions, namely, July 30, 1987 and February 23, 1989. He indicated he thought at the time claimant had a myofascial neck pain and could not find any neurological abnormality. He thought a referral to a pain clinic may be appropriate. He said his July 30, 1987 letter summarizes his findings at the time. He revealed claimant "was not a very cooperate person to examine didn't make a very good effort, which made it a little difficult to evaluate, but I couldn't find any real sign of weakness, weakness I thought was actually there." The doctor testified that claimant was not very cooperative when he saw her again on February 23, 1989 and he really couldn't tell if there were any abnormality at all. The doctor referred to certain letters he wrote pursuant to his February 1989 examination of claimant and reviewed her MRI. The doctor was asked ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 5 the following questions and answered as follows: Q. Doctor, I'm going to ask you for a series of opinions, and I would ask that you answer them in terms of reasonable medical probability. Is that agreeable, Doctor? A. Yes. Q. First of all, Doctor, do you have an opinion as to whether or not Ms. Roberts has any abnormality in the cervical spine? A. She has some mild degenerative changes. Q. And what do you attribute [sic] those changes to, Doctor? A. Aging process. Q. Doctor, do you have an opinion as to whether or not the pathology that you have described as degenerative arthritis would be casually related to either of her alleged injuries in May or August of 1986 or to her general work activity? Do you have an opinion? A. Yes. Q. And.what is that opinion? A. I don't believe it is. Q. Doctor, you have described an ulnar nerve procedure performed by Dr. Laaveg. I would ask you whether or not you have an opinion as to whether that procedure and the pathology which required the surgery would be related to either of the injuries in May or August of 1986 or to the general nature of her work activity. Do you have an opinion? A. Yes. Q. What is that opinion? A. I don't believe it is. Q. What's the reason for that opinion? A.. Well, because historically that developed--became symptomatic while she was not working. She had been off work already. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 6 Q. Doctor, do you have an opinion as to whether or not Ms. Roberts would have any permanent functional impairment as a result of either of the conditions we've just talked about, the degenerative arthritis or the ulnar nerve transposition? A. From the degenerative arthritis, she certainly, I'd expect, will have some neck pain in the future. From the ulnar nerve, she's got some changes. They're mild. They will not restrict her significantly in what she can do, but she will have some probable, permanent sensory changes in the hand and forearm. Q. Do you believe either of these conditions would restrict Miss Roberts' work activity in the future? A. Probably not. There are some jobs that degenerative arthritis in her neck would make inappropriate. For instance, the long-haul truck drivers have a very difficult time. Very heavy work, something involving shoveling, for instance, would not be appropriate for someone with that kind of arthritic neck. (Joint Exhibit 2, Boarini Deposition, pp. 10-12) Dr. Boarini opined that claimant's ulnar nerve procedure performed by Dr. Laaveg was not related to either claimant's May 1986 or August 1986 injuries or to the general nature of her work activity. He also opined that claimant's cervical spine trouble is not work related. He acknowledged claimant has some arthritis, but does not have a 15 percent impairment. At the most he said the impairment would be 2, 3 or 4 percent. Dr. Boarini also disagreed with Dr. Laaveg's opinion that claimant's ulnar nerve transposition was work related. Dr. Boarini acknowledged that he would defer judgment to Dr. Laaveg as to claimant's shoulder impairment as Dr. Boarini is not qualified to evaluate that. Dr. Boarini said he disagreed with Dr. Laaveg's 15 to 20 pound restriction. He agreed with Dr. Laaveg that claimant had some existing arthritic problems in the cervical spine but disagreed her work aggravated her neck. He further concluded that claimant's subjective complaint's were out of proportion to his findings. He emphasized claimant's "neck problems, and so on, are not work related. She has an arthritic neck, and it may very well hurt, but its just not work related." Dr. Boarini said claimant "complains of some things that I cannot find, and., in fact, there's good evidence that they're not even really there. That's not to say she doesn't have neck pain." Although the doctor acknowledged that claimant's history indicated that claimant's gradual condition brought about her ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 7 inability to work, he said that wasn't important in determining its work relatedness. Sterling J. Laaveg, M.D., an orthopedic surgeon, testified by deposition on August 25, 1989 that he first saw claimant on April 21, 1988. He related the history claimant gave him. Dr. Laaveg said claimant came to him because "Doctor Crane had recommended that the ulnar nerve, which is the nerve at the elbow, be moved or transposed to take the pressure off.... Dr. Laaveg was asked and answered as follows: Q. Okay. Was your diagnosis essentially the same as that of Doctor Crane? A. Concerning -- for sure concerning the ulnar nerve it was, that there was ulnar nerve compression or what's commonly called a tardy ulnar palsy. She had some other problems and I cannot recall whether Dr. Crane specifically listed them the same way I did concerning her neck and shoulder. (Jt. Ex. 1, Laaveg Dep., p. 7) Dr. Laaveg stated claimant returned on May 6, 1988 and desired that he, rather than Dr. Crane, perform the suggested surgery. The interior ulnar nerve surgery was performed on May 24, 1988. Dr. Laaveg was asked-and answered as follows: Q. Doctor Laaveg based upon the history you took from Ms. Roberts, the work that you did with her in April and May of '88, do you have an opinion on whether or not her work activity played a substantial part in bringing about the surgical intervention that you did in May of 1988 with regard to Ms. Roberts? A. It was my opinion that her ulnar nerve tardy palsy was related to work activity with an overuse syndrome and, as such, was directly related to her work that led to her subsequent surgery. Q. Following the surgery, did you continue to treat her, not only for the nerve problem and surgery that you've described, but for an impingement syndrome and for a cervical problem as well? A. Yes. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 8 Q. Okay. And likewise, based upon the history you took from the patient and your examination treatment and diagnosis, did you find a relationship between her work activity at Armour and those two problems? A. It was my feeling that her cervical problem was an exacerbation or making worse of some previous degenerative disk disease and degenerative arthritis that she had but that her work activity was exacerbating or making worse her degenerative disk disease and degenerative arthritis and causing pain and discomfort. It was also my opinion that her shoulder problem was related to overuse at work. (Jt. Ex. 1, Laaveg Dep., pp. 10-11) The doctor described the various appointments claimant continued to have with him regarding her treatment and claimant's complaint. Dr. Laaveg felt claimant was at maximum healing on December 2, 1988 unless David W. Beck, M.D., felt surgery was indicated. The doctor said that it was later determined that claimant did not have a surgical problem. (Jt. Ex. 1; Laaveg Dep., p. 17) Dr. Laaveg was asked and answered as follows: Q. Okay. Doctor Laaveg, at this point in time, May 15 of 1989, did you feel that she had healed sufficiently from the injuries which you've described as the work injuries, to permit her to return to any kind of employment activity? A. We -- yes, we set final work restrictions and it was felt that she really should be in a moderately sedentary job if she returned to work in which she was told not to lift over 15 to 20 pounds off the floor, shouldn't carry over 25 pounds, should avoid repetitious bending or twisting or to hold her neck in fixed positions for extended periods or do a lot of twisting, rotationally, with her neck, and she should definitely not work with her arms above shoulder level and which would cause problems with her right shoulder. Q. Okay. Doctor, if you could tell us what the final impairment rating is with regard to each of the three.injuries hat you talked about, and then in your opinion as to whether or not there's a casual.relationship to any work activity here? A. First of all, it was my feeling that there were casual relationships concerning all three problems, and let me try to carefully explain. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 9 With two-level degenerative disk disease with persistent limitation of motion and persistent pain it was my feeling on reviewing the AMA Guidelines on Physical Impairment and the American Orthopedic Guidelines on Physical Impairment, she had a 15 percent final physical impairment rating for her cervical spine alone. One-third of that or 5 percent of the whole person was felt to be due to her previous condition, and two-thirds of that or 10 percent to the whole person was felt to be due to her work-related condition and secondary pain and discomfort. It was my feeling on the basis of her mild decreased motion and her rotator cuff impingement that she had a 7 percent impairment of the shoulder and upper extremity as a result of her shoulder problem. This too was felt to be work-related. That it would be a whole person final physical impairment rating of 4 percent. It was my feeling that she had a 5 percent impairment rating of the right upper extremity due to her sensory change as a result of her tardy ulnar palsy and her subsequent surgery, and that would be a whole person final physical impairment rating of 3 percent. So using the combined whole person final physical impairment rating chart in the AMA combined values, it's 10 percent plus 4 percent plus 3 percent relating to those ' three injuries, or those three work-related conditions, which is a whole person combined value of 17 percent. (Jt. Ex. 1, Laaveg Dep., p. 22-24) Dr. Laaveg said he did not have Dr. Hayreh's February 1987 EMG of claimant's ulnar nerve, which was normal, but probably would not have changed what he would have done. Peter D. Wirtz, M.D., an orthopedic surgeon, testified by way of deposition on October 10, 1989 that he first examined claimant on January 29, 1987. He said claimant told him her neck symptoms first developed in February 1987, causing her to be seen by Dr. Crane for evaluation. She gave him a prior history of loss of strength in her right arm and pain in her fourth and fifth fingers. Dr. Wirtz testified as to his examination on September 29, 1987, December 15, 1988 and April 10, 1989. Dr. Wirtz testified as follows as to his February 15, 1989 report which he said contains his most recent opinions and conclusions regarding the physical condition of claimant: "[S]he has a loss of sensation on the right fifth finger compared to the opposite hand on 9-29-87, and on 12-15-88 had decrease feeling over the ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 10 right fourth and fifth fingers to touch compared to the opposite side as the only neurologic condition that I've been able to demonstrate as being abnormal." (Jt. Ex. 2, Wirtz Dep, p. 11) Dr. Wirtz was further asked and answered: Q. And can you tell us, please, what is your opinion? A. That she has disc degeneration at C4-5 and C5-6. Q. And what is the cause of that condition? A. Natural degenerate disease. Q. Do you have an opinion, Doctor, within a reasonable degree of medical certainty, as to whether this condition, the degenerative disease in her cervical spine, would be casually related to either of her alleged injuries of May or August 1986? A. Yes. Q. Or to her general work activity at Armour? A. Yes. Q. And what is your opinion? A. That I can find no one incident at work or otherwise that would relate to the cause of this cervical disc degeneration. Q. Do you have an opinion to a reasonable degree of medical certainty whether or not Cindy Roberts would have any permanent functional impairment as a result of her neck condition? A. Yes. Q. And what is that, please? A. Based on the fact that she has cervical disc degeneration, she will have some limitations of function. Q Would that be permanent or temporary in nature? A. The disc degeneration is permanent and would be a permanent condition. Q. Okay. Taking into account Ms. Roberts' condition, her neck condition, do you have an opinion as to ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 11 whether or not this would restrict her employability in the future? A. It has been my experience that people with this disc degeneration, based on her MRI study, are not significantly limited in employment ability. (Jt. Ex. 1, Wirtz Dep., pp. 12-13) Dr. Wirtz disagreed with Dr. Laaveg's 15 percent impairment on the cervical spine to the body as a whole. He opined a 5 percent rating, but disagreed that any work aggravation caused any permanent impairment. He did agree that orthopedic surgeons could disagree in this area. He also disagreed with Dr. Laaveg as to claimant's possibly needing a cervical spine fusion. Dr. Wirtz acknowledged he understood claimant's job involved working with her hands on a repetitive basis throughout the day and that this did aggravate her cervical degenerative disease. He indicated his muscular strain diagnosis he made in September 1987 was casually related to an aggravation of her cervical disc disease. Dr. Wirtz said he disagrees with Dr. Laaveg's opinion that claimant has a permanent right shoulder impairment, but agrees with his rotator cuff impingement syndrome. Dr. Wirtz emphasized that this is an extremity injury and not to the body as a whole. He was asked and answered as follows: Q. Do you relate any of this impairment to a repetitive motion or overuse syndrome by history that she had while working for Armour Food Company? A. Symptoms in that shoulder that the patient has exhibited are due to overstress to that structure. ' Q. And by history, would you casually relate that to the work? A. Yes. (Jt. Ex. 2, Wirtz Dep., p. 26) He agreed with Dr. Laaveg's surgery and Dr. Crane taking claimant off work in May and November 1986. As to claimant's right arm and elbow surgery, Dr. Wirtz was asked and answered as follows: Q. ...Was Dr. Laaveg's surgery appropriate? A. Yes. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 12 Q. Do you think that was casually related to an aggravation of her disease? A. I believe it's due to an overstress condition to the forearm causing the nerve to be irritated, requiring surgery and the overstress is related to work. Q. Do you agree with his permanent impairment rating with regard to the transposition operation? It is in the letter of May 15, 1989. A I would agree with his 5 percent physical impairment to the right upper extremity due to the sensory change secondary to her tardy ulnar palsy post anterior transposition. Q. And would you casually relate that permanent impairment to the aggravation of her preexisting problem and, hence, work related? A. I would casually relate it to the overstress syndrome at work. (Jt. Ex. 2, Wirtz Dep., pp. 18-19) The Park Clinic medical records on June 13, 1986 show that claimant first saw a Dr. Wolbrink regarding left arm pain which has been present about six weeks. The records reflect no right hand problem or cervical spine or shoulder problems. one week later, June 20, 1986, claimant was complaining of neck and cervical spine problems. Claimant was off work two weeks. In the Park Clinic notes of September 2, 1986, Dr. Crane indicated claimant was now having significant pain in her right hand and forearm area rather than in her left arm. In February 1987,.The Park Clinic records reflect claimant was having pain in her neck. Claimant also complained of her shoulder acting up. On April 10, 1987, Dr. Crane referred claimant to a work hardening program with Lon Baker, L.P.T. On May 8, 1987, Dr. Crane's notes indicate his referral of claimant to Dr. Hayreh. Dr. Crane felt he could do little more for claimant. He said claimant continued to complain of shoulder pain and pain into her elbow and hand. He noted neck improvement. Todd F. Hines, Ph.D., evaluated claimant on August 18 and 26, 1987. Dr. Hines said he gave claimant a complete psychological examination including full range of personality and intellectual tests. He wrote on September 2, 1987: ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 13 Most succinctly stated, Mrs. Roberts does not demonstrate any psychological disorder which could arise from her work injury.... ... This young woman functions within the cognitive range of very low normal to borderline mental deficiency. Her abstract thinking skills are very poor and it is likely that she often fails to grasp the basic nature of what is happening within her life. Her social problem solving skills are low and the lack of logical sequential thought can lead to poor judgment. Memory skills are not good. Vocabulary is poor and she may well have a learning disability within the realm of verbal reception of information. There is a general slowness of information processing which can be seen even in the area of manual skills. It appears as though the most salient feature of her current situation from a psychological perspective may be the intellectual deficits which result in her being a rather passive person who is easily intimidated by persons or events and one who needs a great deal of support and guidance. (Jt. Ex. 1, p. 27) Dr. Crane's notes on October 16, 1987 reflected that: "Cindy really does not have a handle what is going on around her, all she keeps saying is that she wants to return to work which is a fine attitude to have." (Jt. Ex. 1, p. 32) On November 9, 1987,.Dr. Crane wrote: My feeling at this point is that she is unsuitable to return to work because of her tardy ulnar nerve palsy. My recommendation has been to transpose the ulnar nerve anteriorly and at an appropriate time return her to work. That will then provide us with an evaluation of whether or not her tendonitis type problem will have resolved enough for work. (Jt. Ex. 1, p. 33) Dr. Laaveg evaluated claimant on April 26, 1988 for a second opinion. He wrote on April 26, 1988: Cynthia Roberts' right tardy ulnar palsy with ulnar neuropathy is directly related to an overuse syndrome at work according to her history. It also appears as ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 14 if her right rotator cuff impingement with bursitis is also related to work by her history. She does have degenerative cervical disc disease at C4-5 and C5-6 which would have predated her work problem. However, the patient has had some exacerbation of neck symptoms which are indirectly related to her problems with her right shoulder and with her right tardy ulnar palsy which has exacerbated her cervical pain as a result of her degenerative arthritis and degenerative disc disease. (Jt. Ex. 1, p. 38) On May 24, 1988, Laaveg performed "right ulnar nerve anterior transposition at the elbow." Dr. Laaveg wrote on August 2, 1988 that claimant had not reached maximum medical healing. On September 21, 1988, Dr. Laaveg wrote: The patient is recovering from her ulnar transposition. She has significant degenerative cervical disc disease with persistent symptoms and a probable degenerative rotator cuff with impingement of the right shoulder although rotator cuff tear cannot totally be ruled out. She will continue with her same regimen including her traction at home. I will see her back in 4-5 weeks. If she is not improving, we may need to consider ' an arthrogram of the right shoulder. Whether she will be able to return to her original employment is uncertain at this time but I doubt this. The patient has already contacted Voc. Rehab. and is in the process of looking into training options at North Iowa Area Community College. (Jt. Ex. 1, p. 48) Dr. Laaveg indicated on December 2, 1988 that claimant was nearing maximum healing. He said her neck was still bothering her and he was going to refer claimant to David W. Beck, M.D., a neurosurgeon, for evaluation and consideration of a cervical fusion. On March 2, 1989, Dr. Beck wrote: Cindy Roberts was seen by me and has been followed by Dr. Laaveg, in Orthopaedics here in Mason City, for neck pain. Neither in my records or in Dr. Laaveg's records is there any indication of a specific injury on August 28, 1986, or on May 28, 1986. I am sorry, but I ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 15 do not think her present condition can be related to this, judging on what I know about her. (Jt. Ex. 1, p. 52) On September 5, 1989, Dr. Beck wrote: The nature of Cindy Roberts' work is one of repetitive bending of her neck. I think there probably is a relationship between her work and her cervical spine problems, in that she does not have a specific injury but rather a repetitive motion injury. (Jt. Ex. 1, p. 65) On April 27, 1989, Dr. Boarini wrote: I have reviewed her February of 1989 MRI scan of the neck. This shows some chronic degenerative changes but no acute abnormality and no surgical lesion. Furthermore, to clarify my previous letter, I did not think the patient's present complaints were work related. I also don't think that based upon her neck pain, there is any basis for giving the patient a permanent partial impairment rating. (Jt. Ex. 1, p. 58) On May 15, 1989, Dr. Laaveg wrote: She has reached maximum healing. Patient's final physical impairment rating concerning her injury is as follows: 15% of the cervical spine due to two-level degenerative disc disease and limitation of motion following her cervical sprain. one-third of this is due to her previous condition of degenerative disc disease, i.e., 5% of the whole person, and 2/3 of this is due to her work-related injury, i.e., 10% of the whole person. She has a 7% impairment of the shoulder due to decreased motion and her rotator cuff impingement syndrome secondary to bursitis. This is a whole person final physical impairment rating of 4%. She has a 5% physical impairment rating of the right upper extremity due to her sensory change secondary to her tardy ulnar palsy post anterior transposition. This is a whole person final physical impairment rating of 3%. The combined ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 16 whole person final physical impairment rating for all injuries, i.e., 10% + 4% + 3% of the whole person, using the AMA Combined Values Chart, is 17% of the whole person. Patient's final work restriction is as follows: she could not be in a job where she lifts over 15-20 lbs. off the floor, carries over 25 lbs., does repetitious bending or twisting, has to hold her head in fixed positions for extended times or do repetitious bending or twisting of her neck. She should not work with her arms above shoulder level. (Jt. Ex. 1, p. 62) On May 15, 1989, Dr. Wirtz wrote: This patient is capable of employment within her physiologic strength and dexterity. The neck disc degeneration would restrict activities of bending the neck forward on a continuous basis and likewise repetitive rotations of the neck, right and left, would be an aggravatory condition that would need to be restricted to a degree rather than being continuous throughout the day. This patient exhibits no condition in her upper extremities that would restrict functional activity restrictions in that her previous job description was work with elbows by side and no over-shoulder-heighth activities. The continued symptoms in the right elbow relating to the ulnar nerve surgical transfer are not restrictive in functional capabilities. (Jt. Ex. 1, p. 61) The State of Iowa Department of Education, Division of vocational Rehabilitation Services, issued a very extensive report on claimant dated September 5, 1989 which tested areas of but not limited to academics, dexterity and skills: Cindy has a 74 on the verbal, 77 on the performance and 74 on the full scale on a WAIS test in her case file. If these scores are valid, Cindy would appear.to be limited in potential to significantly upgrade her academic skills to a level needed for post-secondary academic training at the community college level. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 17 Cindy also expressed concern about her ability to physically tolerate a sedentary classroom environment. (Jt. Ex. 1, p. 22) APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that she received injuries on May 28, 1986 and August 28, 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 28, 1986 and August 28, 1986 are casually 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. 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 casual 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 casual connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. 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). When an aggravation occurs in the performance of an employer's work and a casual connection is established, claimant ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 18 may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. 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); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Claimant has filed two petitions approximately three months apart. The evidence and allegations refer to four areas of alleged injuries. As to the May 28, 1986 alleged injury, it appears to have involved claimant's left wrist. Claimant was off two weeks. There is no medical evidence tying this to a specific injury. Claimant contends it is a cumulative trauma. Claimant's job involved repetitious action but is not hard work and there is insufficient medical evidence to casually connect claimant's alleged disability to her alleged injury on May 29, 1986. Other than being off two weeks, there is no other evidence showing any further problem of permanency with claimant's left hand or wrist. Claimant testified as to her archery accomplishments. Claimant's involvement in these athletic events and practice connected therewith are as likely if hot more likely to cause certain problems in claimant's hands, wrists and arms and other parts of her body than the nature of her work. Claimant has not carried her burden of proof as to her alleged May 28, 1986 injury. The undersigned finds that this alleged injury did not arise out of and in the course of claimant's employment. The undersigned further finds that claimant's alleged disability to her left hand or wrist is not casually connected to her alleged May 28, 1986 injury. Claimant alleges an August 28, 1986 injury to her hands and wrists. The medical testimony, as conflicting as it may be, basically involves claimant's right extremity, right shoulder and neck. Claimant's petition involving the alleged August 28, 1986 injury makes no reference to claimant's neck but refers only to claimant's hands and wrists. The medical evidence shows that the first real onset of claimant's complaint as to her neck or shoulders occurred in February 1987. It appears claimant took off work in February 1987, mainly because of her neck and shoulder problems. Claimant testified she was referred to Dr. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 19 Crane by the company nurse on September 2, 1986 due to a right arm and hand complaint. Claimant indicated she was off work September 3, 1986 through September 21, 1986, at which time claimant returned to her same work. She said she went to Dr. Crane in February 1987 due to the pain in her elbow, neck and shoulder. Claimant testified she never had shoulder and neck pain before this. In her deposition taken on January 24, 1989, (joint exhibit 2, exhibit 8, p. 21), claimant testified that her neck problems came on the last part of November 1986 and just started gradually getting worse until February 1987. She could think of nothing that could have caused her problems. She said she first sought medical attention for her neck problems in February 1987. It appears from her testimony that the arm and shoulder problems were occurring at this time also. There is no mention in the evidence about claimant's active participation in archery until her testimony pursuant to cross-examination on the date of the hearing. Claimant never disclosed her archery ability to any of the several doctors she saw. At least there is no mention of it in any of the the doctors' records involving claimant's history. There is considerable medical testimony that cannot casually connect claimant's alleged elbow, neck and shoulder problems to any work injury. There is testimony that casually connect her alleged problems to her work. The undersigned believes the doctors who find a casual connection feel there is no other known etiology for claimant's condition based on the facts given to them. It is apparent Claimant did not give them all the facts. Claimant is obviously very good at archery. She is a champion having won every event in which she entered. She said she practiced once a week before the alleged injuries. She indicated the last shooting of her bow and arrow was in 1986. She also said she shot once a month during the winter and not during the summer. It takes strength, particularly in the hands, fingers, arms, shoulder and neck to handle the type of archery claimant described and to have the stability and accuracy to be a champion. Claimant is righthanded. Claimant did not appear to be physically or athletically gifted. Her true strength is obviously well hidden within her average frame. It is hard to believe that claimant could be such an accomplished bow and arrow athlete and practice as little as she contends. It is common knowledge that in order to use a bow and arrow one must extend the hands and arms outward from the body and hold it steady in an attempt to hit a designated target. Claimant described her bow and arrow as a type seen on television and used in the Olympics. It has a 45 pound drawback and lets off at 24 pounds. The bow and arrow together weigh 12 to 15 pounds. Claimant also indicated she bowls. There is no evidence of the extent of her bowling activity or if in fact claimant no longer bowls. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 20 It is obvious no doctor mentioned anything in any report or history regarding claimant's activity in these athletic events. This is a major fact when considering claimant's complaints and the fact she does have to some extent a preexisting arthritic condition. The medical evidence is very confusing and there is a great degree of disagreement between the specialists. The undersigned is concerned about the fact that none of the doctors appear to have been told of claimant's archery activity. This is a material fact. It appears that the claimant's activity of pulling the bow with her right arm would have been more consistent with what was bothering her than the posture she showed at work. Claimant has an arthritic condition in her neck. This did not accrue overnight nor does an injury cause arthritis. An injury can exacerbate, accelerate, worsen or lighten an arthritic condition. Archery and bowling activities performed by claimant can also exacerbate, accelerate, worsen or light up an arthritic condition. The undersigned feels there is no necessity to further discuss the confusing state of the medical testimony. Claimant has the burden of proof. The medical testimony is tainted by the withholding of material information as to claimant's athletic activity. Claimant must prove that her alleged work-related injuries materially accelerated, worsened or lighted up her preexisting condition in order to recover. The claimant's own testimony plus a greater weight of medical testimony indicates claimant's neck, upper extremity and shoulder problems did not exist prior to November 1986, and most likely not until February 1987. If, in fact, claimant has an injury to these parts of her bodies the injury date would be February 1987. The undersigned notes that the claimant's petitions as to both the May 1986 and August 1986 injuries referred to claimant's "hands and wrists" as the parts of the bodies affected. Although this petition terminology is not decisive or controlling in this decision, it is of interest. The undersigned finds that claimant's alleged cumulative injury on August 28, 1986 did not arise out of and in the course of claimant's employment. This deputy further finds that claimant failed to carry her burden of proof showing claimant's ulnar nerve surgery, upper extremity, shoulder or neck problems were casually connected to any traumatic or cumulative injury on August 28, 1986, nor were any preexisting conditions in those parts of claimant's body materially accelerated, worsened or lighted up by the alleged injury on August 28, 1986. On the basis of the above decision, any other issues are moot. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 21 FINDINGS OF FACT 1. Claimant failed to carry her burden of proof that her alleged May 28, 1986 left hand or wrist injury was the result of a work-related injury. 2. Claimant failed to carry her burden of proof that her alleged injury to her left hand or wrist on May 28, 1986 resulted in any disability. 3. Claimant incurred no permanent impairment to her left hand or wrist as a result of her May 28, 1986 injury. 4. Claimant failed to carry her burden of proof that her alleged August 28, 1986 cumulative injury to her right hand, wrist, elbow, upper extremity, shoulder or neck was the result of a work-related injury. 5. Claimant failed to carry her burden of proof to show that her current alleged disabilities to her arm, shoulder or cervical spine (neck) are the result of a work-related cumulative injury on August 26, 1986. 6. Claimant had an arthritic cervical spine condition prior to her alleged August 28, 1986 injury which was not materially aggravated, accelerated, worsened or lighted up by any work-related injury on August 28, 1986. CONCLUSIONS OF LAW Claimant's alleged May 28, 1986 injury to her left hand or wrist did not arise out of and in the course of claimant's employment. Claimant's alleged disability to her left hand or wrist was not.casually connected to her alleged May 28, 1986 injury. Claimant's alleged August 28, 1986 injury did not arise out of and in the course of claimant's employment. Claimant's alleged disability and impairment to her hand, wrist, elbow, upper extremity, shoulder and cervical spine (neck) are not casually connected to claimant's alleged injury on August 28, 1986. Claimant's preexisting arthritis was not materially accelerated, aggravated, worsened or lightened up by claimant's alleged cumulative injury on August 28, 1986. ROBERTS V. ARMOUR PROCESSED MEAT CO. Page 22 ORDER THEREFORE, it is ordered: 1. That claimant take nothing from these proceedings as to. her alleged May 28, 1986 injury. 2. That claimant take nothing from these proceedings as to her alleged August 28, 1986 injury. 3. That defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 8th day of January, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert W Pratt Attorney at Law 1913 Ingersoll Ave Des Moines IA 50309 Mr Marvin E Duckworth Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 51100; 51108; 51402.30; 51402;40; 1400; 2600 Filed January 8, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER CINDY ROBERTS, Claimant, File Nos. 825371 VS. 831987 ARMOUR PROCESSED MEAT COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and HARTFORD INSURANCE GROUP, Insurance Carrier, Defendants. 51100; 51402.30 Found neither of claimant's two injuries arose out of and in the course of claimant's employment. 51108; 51402.40 Found claimant's alleged disabilities were not casually connected to her alleged injuries. 1400; 2600 There was considerable conflicting medical evidence, but no doctor was told of claimant's athletic activity as an archery champion. Claimant's complaints were with her hands, wrist, elbow, shoulder and neck. Claimant had a preexisting arthritic condition in her neck. Held claimant's archery activity could be as material a cause if not more of a cause to claimant's condition than her work. The claimant's withholding of this information from the doctors materially tainted their testimony and the doctors' ability to determine all probable causes of claimant's condition and alleged disability. Claimant took nothing from this proceeding.