BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES VAN, Claimant, File No. 832067 841123 VS. A R B I T R A T I O N CLARINDA CORRECTIONAL TREATMENT COMPLEX, D E C I S I O N Employer, F I L E D and FEB 28 1990 STATE OF IOWA, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Charles Van, claimant, against Clarinda Correctional Treatment Complex, employer, and State of Iowa, insurance carrier, defendants, for benefits as the result of an injury that occurred on August 27, 1986 (file 832067) and another injury that occurred on December 9, 1986 (file 841123). A hearing was held in Council Bluffs, Iowa, on June 19, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by Sheldon Gallner. Defendants were represented by Shirley Ann Steffe. The record consists of the testimony of Charles H. Van, claimant; Arlinda K. Van, claimant's wife; and joint exhibits 1 through 28. The deputy ordered a transcript of the hearing. Defendants' attorney submitted an excellent brief. Claimant's attorney did not submit a brief. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of both injuries. That claimant sustained an injury on August 27, 1986 and another injury on December 9, 1986, both of which arose out of and in the course of employment with employer. That both injuries were the cause of temporary disability. That claimant is entitled to and was paid temporary disability benefits from August 27, 1986 through December 8, 1986 for the injury of August 27, 1986; that claimant is entitled to and was paid temporary disability benefits from December 9, 1986 through November 20, 1987 for the injury of December 9, 1986; that claimant's entitlement to temporary disability benefits has been fully paid and is not a disputed matter in this case at this time. That the injury of August 27, 1986, was the cause of permanent disability. That the type of permanent disability, for the injury of August 27, 1986, is industrial disability to the body as a whole. That the injury of December 9, 1986, was simply an exacerbation of the injury that occurred on August 27, 1986 and that the permanent disability in this case was caused by the injury of August 27, 1986. That the rate of compensation for both injuries is $229.44 per week in the event of an award. That all requested medical benefits for both injuries has been or will be paid by defendants. That claimant has received $11,784.15 of long-term income disability benefits prior to hearing, but whether defendant is entitled to a credit for these benefits is a disputed matter. That defendants have paid claimant 80 6/7 weeks of workers' compensation permanent partial disability benefits, at the rate of $229.44 per week, prior to the hearing on June 19, 1989 and that defendants are in the process of paying claimant 100 weeks of permanent partial disability benefits based upon a 20 percent permanent functional impairment rating issued by claimant's treating physician. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant is entitled to additional permanent partial disability benefits for the injury of August 27, 1986, and if so, the extent of benefits to which he is entitled, to include whether claimant is an odd-lot employee. Whether defendants are entitled to a credit for $11,784.15 in long-term income disability benefits paid to claimant prior to hearing. SUMMARY OF THE EVIDENCE Claimant, born March 17, 1944, was 42 years old at the time of the injury and 45 years old at the time of the hearing. Claimant completed the eighth grade and later obtained a GED in the army (transcript page 52). Claimant testified that he was 17 years old when he was in the eighth grade. He quit school, he joined the army. He received an honorable discharge from the army with the rank of staff sergeant. Prior employments include highway labor for the state of Missouri out of a union hall, with lifting requirements from 40 to 250 pounds. He also worked in the meat packing industry for a short time (tr. pp. 17-20). Claimant started to work for employer on September 2, 1980 as a correctional officer. This job requires a lot of walking, including up and down four flights of stairs, checking fire security and making yard checks. Claimant worked in a unit which confined the mentally ill, the criminally insane and child molesters. He was also in charge of solitary confinement. This was a violent area and daily he was required to stop fights between the prisoners or inmates. He also checked perimeter by driving a car. He also drove a car to transport inmates from one institution to another. Frequently, it was necessary to carry an inmate in order to restrain him. Claimant testified that he weighed between 280 and 288 pounds when he began this job. At the time of the hearing he weighed 320 pounds, but was going to Weight Watchers and was losing weight then (tr. pp. 20-23). On August 27, 1986, ten inmates arrived from Fort Madison. Prisoners are transported with a transportation box, or tool box, which is about 24 inches long, 10 inches deep and 10 or 12 inches wide. This box contains handcuffs, belly chains, leg irons, flash lights, and mace. They call it a transportation kit. Claimant squatted down, took a hold of the box and started to pull it when he felt a pop in his lower back and his left leg went numb (tr. p. 23). Nothing like this had ever happened before. He reported the injury to his superior immediately and was taken to the Clarinda Hospital in a semi-stooped over position. His leg was numb and he could not walk. He was treated by Adeline Comeau, M.D., who prescribed physical therapy three or four times a day every day. Claimant was also treated by Michael T. O'Neil, M.D., an orthopedic surgeon, who commuted from Omaha to Clarinda (tr. pp. 24-26). Claimant attempted to return to work on December 8, 1986, with pain in his back and left leg, which would go numb if he sat or stood. Sometimes he would fall down on this first day back to work, claimant attempted to sit down on a stool and his back popped and his leg went numb. He experienced the same pain that occurred on August 27, 1986. He reported the injury, was sent to Clarinda Hospital and Dr. Comeau had claimant transported to Clarkson Hospital in Omaha for treatment again by Dr. O'Neil (tr. pp. 27 & 28). Back surgery was performed on January 13, 1987. This relieved the constant pain, but his leg still goes numb and he has problems walking, standing and sitting for long periods. Claimant testified that he has received extensive physical therapy of heat, massage and ultrasound (tr. p. 29). Claimant testified that he was terminated by employer and he was told they were putting him on long-term disability. As a condition of receiving long-term disability, he was required to apply for social security disability benefits and social security disability benefits were awarded to him (tr. p. 30). Claimant was not offered a sedentary job by employer. Claimant did not know of any jobs for employer that he could perform in his present condition (tr. p. 31). Claimant testified that he has been unable to garden or hunt since the surgery because he is unable to walk on rough ground (tr. p. 31). Claimant testified that since the surgery, he experiences pain in both legs, the left leg goes numb, three toes on the left foot have been numb since the surgery, he only sleeps four or five hours at night before he is awakened with leg cramps that he has to get up and walk out. His pain is worse on cool, damp days (tr. p. 32 & 33). Claimant testified that the State of Iowa sent a vocational rehabilitation counselor by the name of Al Marchisio to see him on two or three occasions at his home. Claimant said that Mr. Marchisio never recommended that he return to work and never indicated that there were any jobs that he could perform. He last saw Marchisio in December of 1987 (tr. pp. 33 & 34). Claimant testified that he lies down three or four times a day. He cannot perform the job of security guard because he cannot stand on his feet over 15 to 20 minutes at the most before he gets cramps or muscle spasms in his lower back and legs. He can only walk four or five blocks. Claimant testified that he is unable to drive, ride, or sit for prolonged periods of time. The trip from Clarinda to Council Bluffs is 40 minutes and he was required to stop three times to relieve the muscle spasms. His wife normally does the driving. Claimant testified that he did not know of any job that he can do because you cannot find an employer where you can work a little while, sit down awhile or lie down awhile. Claimant maintained he could not perform his old job as a correctional officer because it requires a lot of walking, standing and physical exertion at times to restrain inmates that become upset (tr. pp. 36-38). Claimant asserted that Dr. O'Neil told him to go home and stay, to lie on a heat pad and ice bag, and to stay off his feet as much as possible (tr. pp. 35 & 38). Claimant admitted that he had not attempted to look for any type of employment since his injury (tr. p. 39). Claimant acknowledged that he had learned the ability to know particular safety rules and procedures, the ability to use good judgment and to deal with people in emergency and other situations, to deal with incoming and outgoing telephone calls, to deal with visitors, who are members of the public, at the institution. He handled his application for long-term disability benefits and social security disability benefits by filling out the forms (tr. pp. 40-43). Claimant testified that he was not yet released by Dr. O'Neil and that he was not aware that Dr. O'Neil said that he could perform light work or sedentary work. Claimant testified that Marchisio did not recommend a job to him, nor did he recommend retraining after reviewing the tests he took at Creston Community College (tr. pp. 42 & 45). Claimant was not provided a copy of the test results and he never saw Marchisio again. Marchisio did not advise claimant that he was able to secure a light duty position for claimant (tr. p. 46). Claimant testified that he was unable to work, but he would do so if he could (tr. p. 47). The State of Iowa did not suggest he apply for a job in a lesser capacity (tr. p. 48). Claimant acknowledged that he took a number of courses while employed by employer such as CPR, personal safety, cultural awareness, stress and health management, resident management, and con games. He passed tests for all of these in-service training courses (tr. pp. 50 & 51). Arlinda Van, claimant's wife of 11 years, testified that prior to the injury, claimant was a little over weight, but basically healthy. His leg wasn't numb. He takes medication sometimes and his sleep patterns are disturbed. He no longer takes care of the lawn or garden and he is unable to hunt and fish. He rests often and his back and leg bother him. She drove to the hearing. They stopped twice so he could stand up a little bit and walk around the car. He gets tired easier. She acknowledged that he had occasional back pain prior to this injury. The medical evidence consists of the office notes, reports and deposition testimony of Dr. O'Neil. At his deposition on May 24, 1988, Dr. O'Neil testified that he was a board certified orthopedic surgeon who has been in practice for 18 years. He is licensed to practice in Iowa and Nebraska. His curriculum vitae is a deposition exhibit and shows that he is an assistant professor of orthopedic surgery at the University of Nebraska College of Medicine (exhibit 22, deposition ex. 1). Dr. O'Neil testified that he first saw claimant on September 5, 1986 at the Clarinda Hospital. Claimant described a back injury from picking up an 80 or 90 pound tool box at which time he experienced a popping sensation in his back and radicular pain (ex. 28, p. 6). The doctor noted that claimant was 6 foot 4 inches tall and weighed 333 pounds. Because of his size, he is not a good candidate for surgery, physical therapy is less effective and his prognosis was quite guarded. Range of motion in his lumbosacral spine was limited to 50 percent in all directions. X-rays of the lumbosacral spine showed an L-5 S-1 sacralization with a large bat-wing process at L5 on the left side. The L-5 S1 interspace was narrowed. Dr. O'Neil diagnosed an acute lumbar disc herniation, or at least a threatened lumbar disc herniation at L4 L5 on the left side with a preexisting transitional vertebra at L5 Sl. Conservative treatment of bed rest and physical therapy were prescribed (ex. 28, p. 9; ex. 27). On October 3 the patient reported that he had a deep vein thrombosis in the left thigh and calf on October 1, 1986 and that he was being treated with anticoagulant therapy (ex. 28, p. 10; ex. 26). Dr. O'Neil said this was consistent with an L5 nerve root involvement. A CT scan was considered, but claimant was too large to fit into the apparatus (ex. 28, p. 11). Dr. O'Neil next saw claimant on December 9, 1986. At that time, claimant reported that he was sitting on a little stool which tipped over and he slipped off the stool and reinjured his back. Claimant was sent to Clarkson Hospital in Omaha. At this time claimant received a preoperative consultation and examination by Susanne E. Eilts, M.D. (exs. 24a, 24b & 24c). She diagnosed that claimant had: (1) hypertension, poorly controlled; (2) clinical history of angina pectoris, controlled; (3) history of dependent edema; and (4) left L-5 radiculopathy. Claimant received x-rays, a CT scan and a lumbosacral myelogram (exs. 19, 20 & 21). These objective tests confirm the defect at L4-L5 as well as the congenital sacralization of the fifth lumbar segment on the left side, degenerative arthritic changes and bony osteophytic spur formations. Dr. O'Neil continued to diagnose lumbar disc herniation L4, L5 (ex. 22a, 22b & 22c). Dr. O'Neil concluded that claimant was not a good candidate for surgery because of his size, but he doubted if he would have much improvement without something other than bed rest and physical therapy (exs. 23a & 23b). Claimant went home for the holidays and returned for surgery on January 9, 1987 (ex. 18). A lumbar laminotomy an L4 disc debridement, left was performed on January 14, 1987 by Dr. O'Neil (exs. 15, 16a, 16b & 17). Postsurgery, Dr. O'Neil saw claimant on February 6, 1987; March 6, 1987; April 10, 1987; and June 5, 1987 (ex. 11-14). On July 14, 1987, the doctor said his prognosis was guarded because of his weight (333 pounds) (ex. 10). On July 17, 1987, the doctor said that claimant cannot drive a car for more than 30 minutes without a change in position because of back, left buttock and leg pain. Dr. O'Neil reported that claimant also had early degenerative changes of his left knee probably secondary to stress and aggravated by his obesity (ex. 9). On September 17, 1987, claimant's weight remained at approximately 330 pounds. Dr. O'Neil concluded: I do not believe that this man can return to his former work at the Clarinda Treatment Unit because of his back and because of his left leg. His left knee problem is basically that of degenerative arthritis which is aggravated and complicated by his severe obesity. He will not tolerate standing and walking for any length of time. I believe that he will have difficulty sitting and driving a car or truck for eight hours a day because of his back and because of his knee. I would not let him lift more than 30 pounds repeatedly because of his back condition and also because of his knee. He will not have any problems with push or pull activities of the upper extremities. I believe that the prognosis for this man returning to his former work as a guard or an attendant is poor. I'm not sure when he will be able to return to any type of work which requires standing, stooping, bending or lifting. (exs. 8a & 8b) On September 28, 1987, Dr. O'Neil again stated that his prognosis for returning to work as a guard is quite guarded (ex. 6). On November 30, 1987, Dr. O'Neil stated: I believe that Mr. Van has reached maximum improvement and believe he is entitled to a 20 percent permanent functional impairment as a result of his back injury and subsequent surgery. I believe this is a work-related injury. I believe that this man should look for some type of work which does not require standing and walking and climbing and certainly none which requires stooping, lifting and bending. Some type of light work or sedentary work would be more appropriate for Mr. Van. (ex. 5). Dr. O'Neil repeated this information on December 17, 1987, in these words: At the time of my last examination, I felt that Mr. Van had reached maximum improvement, and that he was entitled to a 20% permanent functional impairment as a result of his back injury and subsequent surgery. I felt that his back condition was work related, and that he should look for some type of work which did not require long periods of standing, walking, stooping, bending and lifting. I felt that light work or sedentatary [sic] work would be appropriate. (ex. 4) Dr. O'Neil added that claimant did not have any objective physical findings other than pain with straight leg raising. There were no objective neurological deficits. The doctor reiterated that he did not feel that claimant should return to work which requires any strenuous activity. He stated again that his obesity (350 pounds) certainly is a detrimental problem also (ex. 4). On January 28, 1988, Dr. O'Neil said that claimant's disability entitled him to a disability hunting and fishing license (ex. 3). On March 23, 1988, the doctor said that claimant's persistence of back pain with flare-up in his buttock was directly related to the initial back injury and he suggested additional physical therapy on an outpatient basis. On March 28, 1988, claimant's condition was unchanged, he continued to have flare-ups, he continued to receive physical therapy and found it helpful. Claimant was investigating a weight loss program (ex. 1). In the deposition, Dr. O'Neil gave his professional opinion, within a reasonable degree of medical certainty, that the cause of the herniation at L4, L5 and the laminotomy was the injury on August 27, 1986, while working at the Clarinda Complex and picking up an 80 or 90 pound tool box. Dr. O'Neil added that the 20 percent permanent functional impairment was the result of this back injury and subsequent surgery. The permanent restriction that Dr. O'Neil would impose is that claimant should look for some type of work which was mostly sedentary in nature. He cannot tolerate prolonged standing, walking or climbing. He will not tolerate stooping, bending, twisting and lifting. He cannot ride in a car for very long. His only chance of getting back to some productive activity is a sedentary one (ex. 28, pp. 19-22). Dr. O'Neil said that considering claimant's size and the fact that he had a ruptured disc fragment in his back that the surgery was successful because it diminished the pain in his back and leg. Dr. O'Neil added, "I never thought he was going to be completely pain-free following his operation." (ex. 28, p. 25). Dr. O'Neil could not determine whether the current pain was a result of activity, claimant's obesity, scar tissue or possibly another disc herniation (ex. 28, p. 25). The doctor affirmed that claimant could perform occasional bending or stooping. The doctor considered prolonged standing, sitting or walking as doing it for three to four hours nonstop; or three to four hours sitting in one position where he did not have the opportunity to get up and move around a little bit and stretch his legs. Dr. O'Neil acknowledged that the congenital malformation of partial sacralization at L5-S1 can cause increased stress at the next disc space above this level and have a tendency to predispose a person to injury more than if they did not have this condition (ex. 28, pp. 30 & 31). The doctor repeated that this injury was the cause of claimant's disability as well as his restrictions and limitations (ex. 28, p. 31). The tests performed by Mr. Marchisio at the Clarinda Community College and the test results were not placed in evidence. Claimant's attorney contended that the test results were not served on claimant or claimant's counsel. Claimant's attorney contended that no reports from Mr. Marchisio were served on claimant or claimant's counsel. Mr. Marchisio did not testify at the hearing. No explanation was given why Mr. Marchisio stopped seeing claimant. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of August 27, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo 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). 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.2d 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). Claimant was age 42 at the time of the injury on August 27, 1986. The loss is made worse in this case because it occurred when claimant was near the peak of his earnings capacity. Claimant's physical loss, functional loss and industrial loss is more detrimental to him than it would be to an older or younger employee. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 1989). Claimant has an eighth grade formal education and obtained a GED while in the army. He reads, writes and completed a number of in-service training courses for employer and passed tests for these courses. As defense counsel pointed out claimant is articulate, has communication skills and experience at working with people. Dr. O'Neil said that he could perform light work, sedentary work and that he could use his upper extremities in push and pull activities. Therefore, it is determined that claimant is not permanently and totally disabled as contended. Claimant testified that he has not made any search of any kind for any type of employment since his injury (tr. pp. 38 & 39). Since claimant has made no attempt to find work, then he cannot be determined to be an odd-lot employee. Emshoff v. Petroleum Transportation Services, file no. 753723 (Appeal Decision March 31, 1987); Collins v. Friendship Village, Inc., file no. 679258 (Appeal Decision October 31, 1988). An employee making a claim for industrial disability will benefit by showing of some attempt to find work. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Company, Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Furthermore, since claimant has not sincerely sought any employment within the limits permitted by Dr. O'Neil, his potential for the labor market has not been tested and makes it more difficult to ascertain how much industrial disability he has actually suffered. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). It is clear that claimant is foreclosed from his former work as a correctional officer and guard over violent types of patients and inmates. Dr. O'Neil further stated that he was proscribed from performing strenuous work. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Claimant is therefore, also foreclosed from his previous work on highway construction and probably in the meat packing industry. Claimant testified that employer told him to apply for long-term disability benefits. In so doing he was required to apply for social security permanent disability benefits and these benefits were awarded to him. Claimant knew of no work for employer that he could do. Employer did not offer him any light duty or sedentary work. Employer did not offer him any light duty or sedentary work at any other facility that it operates within the state of Iowa. Employer had claimant tested and evaluated by a vocational rehabilitation consultant, but the test results, reports and recommendations of the vocational rehabilitation consultant are not in evidence. The rehabilitation consultant did not testify at the hearing. Claimant testified that he was 17 years old when he quit school in the eighth grade. It would appear that retraining is not a feasible course of action for claimant because: (1) the absence of evidence from defendants' rehabilitation evaluation is some inference that retraining was not feasible and (2) defendants directed him to apply for long-term disability benefits and terminated his employment with employer. Claimant testified that after his tests and evaluation that the rehabilitation consultant did not contact him again. Contrary to the testimony of claimant and his wife, claimant was not healthy prior to the injury. He suffered from obesity, hypertension, angina pectoris, dependant edema, had a slightly degenerative spine, and a degenerative left knee. This litany certainly provides a number of disincentives for claimant to be motivated to look for work. Added to that is the fact that claimant was receiving long-term disability benefits, social security disability benefits and permanent partial disability benefits at the time of the hearing. Defendants' argument concerning an apportionment is considered, but no specific apportionment can be made on the impairment rating because defendants did not provide any specific evidence of what that percentage should be. Varied Industries, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2 Damages and Tort Actions, section 15.34[l](a); 22 Am. Jur. 2nd, section 212. Dr. O'Neil awarded a 20 percent permanent functional impairment rating to the body as a whole and restricted claimant from work which requires standing, walking, and climbing and which requires repetitive stooping, lifting and bending. Claimant cannot drive for a long period of time. Defendants called no witnesses and introduced no separate exhibits. The Iowa Supreme Court has stated that an employer's refusal to provide any work for an injured employee is a factor to be taken into consideration in the determination of industrial disability irrespective and independent of functional impairment. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). In this case, after claimant was evaluated by their own vocational rehabilitation consultant, claimant was not recommended for vocational rehabilitation, but rather was recommended to apply for long-term disability benefits and was terminated. Refusal of an employer to employ an injured employee is strong evidence of lack of employability. Professor Larson makes a point which applies to this particular case, "At the outset, one might suppose that the refusal of defendant-employer himself to employ the claimant would be the strongest kind of evidence against that employer." Then he asserts what as a practical matter ought to be obvious, "It is hardly necessary to labor the inconsistency of permitting an employer to fire a man for physical defects caused by his own employment conditions, and then to disclaim compensation liability by presenting medical evidence that the man is not really disabled after all." 2 Larson, Workmen's Compensation Law, section 57.61(b) at pages 10-173 and 10-176. If defendants could find absolutely no work for claimant, but rather recommended long-term disability, and if the social security administration awarded permanent disability benefits, and employer chose not to invest in any retraining for claimant, then it is determined that claimant's industrial disability is substantial. Wherefore, based upon: (1) the foregoing considerations; (2) all of the considerations used to determined industrial disability, Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven Cafe, Inc., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); (3) employing agency expertise [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained an industrial disability of 50 percent to the body as a whole. The commencement date of permanent partial disability benefits is not the date of the deputies decision as proposed by defendants citing Dickenson v..John Deere Product Engineering, Vol 1, No. 2 Industrial Commissioner Decisions 316, 319 (Appeal Decision November 1984). Rather, permanent partial disability begins at the termination of healing period. Iowa Code section 85.34(2); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Defendants claim a credit for $11,784.15 for long-term disability payments made to claimant prior to hearing. The parties stipulated that claimant did receive these benefits, but claimant disputed that defendants are entitled to a credit for a payment of the long-term disability benefits. Claimant's attorney contended that there was an administrative ruling governing the payment of long-term disability, which held that there was to be no credit for benefits paid up until December 30, 1988. However, this administrative ruling was not introduced into evidence. Iowa Code section 85.38(2) provides: Credit for benefits paid under group plans. In the event the disabled employee shall receive any benefits, including medical, surgical or hospital benefits, under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if any rights of recovery existed under this chapter, chapter 85A or chapter 85B, then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments, including medical, surgical or hospital, made or to be made under this chapter, chapter 85A or chapter 85B. Such amounts so credited shall be deducted from the payments made under these chapters. Any nonoccupational plan shall be reimbursed in the amount so deducted. This section shall not apply to payments made under any group plan which would have been payable even though there was an injury under this chapter or an occupational disease under chapter 85A or an occupational hearing loss under chapter 85B. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against them by reason of having received such payments only to the extent of such credit. Iowa Code section 79.20 provides: EMPLOYEES DISABILITY PROGRAM Employees disability program. There is created a state employees disability insurance program which shall be administered by the executive council and which shall provide disability benefits in an amount and for the employees as provided in this section. The monthly disability benefits shall provide twenty percent of monthly earnings if employed less than one year, forty percent of monthly earnings if employed one year or more but less than two years, and sixty percent of monthly earnings thereafter, reduced by primary and family social security determined at the time social security disability payments commence, workers' compensation if applicable, and any other state sponsored sickness or disability benefits payable. Thus, it can be seen from a reading of section 79.20, that the State of Iowa Employees Disability Program was not intended to provide claimant with a concurrent duplication of benefits; that is, workers' compensation benefits and also long-term disability benefits for the same period of time. Section 79.20 says that the long-term disability benefits are to be reduced by the workers' compensation benefits. Likewise, it is clear that the state employee long-term disability program was not intended to be a plan "which would have been fully payable even though there was an injury" under the worker's compensation laws provided in Iowa Code section 85.38(2). It is assumed that the policy complies with the statute. Thus defendants are entitled to a credit pursuant to Iowa Code section 85.38 and Iowa Code section 79.20. With respect to medical benefits, it has been determined that when an employer's obligation for medical expenses has been established, section 85.38(2) appears to provide a method by which the employer may unilaterally act to satisfy those liabilities. Krohn v. State, 420 N.W.2d 463 (Iowa 1988). Also, there is a line of authority within the agency that if the group plan under which claimant received benefits was contributed to by employer, then the employer is entitled to a credit as a matter of law. Furthermore, that defendants are allowed to take whatever credit they believe is appropriate under Iowa Code section 85.38(2) and if claimant believes that the credit taken is improper he may petition the agency for relief. Presswood v. Iowa Beef Processors, Inc., file no. 735442 (Appeal Decision November 14, 1986); Olson v. Dept of Transportation, file no. 738244 (Appeal Decision October 30, 1986) and Bakalar v. Woodward State Hospital School, file no. 756871 (Appeal Decision June 16., 1989). It cannot be determined whether the long-term disability benefits were paid concurrently with the workers' compensation benefits or whether they were paid at a different time separately from the workers' compensation benefits. Workers' compensation is based upon the principle of payment of weekly benefits being paid in fixed weekly amount during disability. That principle prohibits using amounts overpaid in the past to satisfy currently due weekly payments. Division of Industrial Services Rule 343-8.4; Comingore v. Shenandoah Art. Ice, etc. Company, 208 Iowa 430 226 N.W. 124 (1929); Van der Wilt v. Sherman Produce Co., III Iowa Industrial Commissioner Report 265, 267 (Appeal Decision 1982). If there was a period when long-term disability benefits and workers' compensation benefits were paid concurrently, defendants cannot take a claim against future benefits which become due. Principle Financial, the longterm disability carrier, may have a claim against claimant for an overpayment, but this agency does not have jurisdiction over that issue. Employer is entitled to a credit for workers' compensation benefits which came due, but were not paid during times when group long-term disability benefits were being paid. There is no credit for the $50 minimum group disability payment which is paid irrespective of workers' compensation or other benefit(s) payments. From the evidence submitted, the undersigned in not able to compute the precise amount of credit entitlement. Bland v. Glenwood State Hospital School, file no. 819160, filed December 28, 1989. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That the parties stipulated that the injury of August 27, 1986, was the cause of any permanent disability and that the injury of December 9, 1986, was only a temporary exacerbation of the first injury. That claimant made absolutely no job search of any kind after the injury that occurred on August 27, 1986. That claimant was 42 years old at the time of the injury, has an eighth grade education, obtained a GED in the army and completed employer in-service training courses and passed these tests. That Dr. O'Neil, the chief treating physician, awarded claimant a 20 percent functional impairment to the body as a whole. That Dr. O'Neil restricted claimant from prolonged standing, walking or climbing and repetitive stooping, bending or lifting. He added that claimant could only drive for a limited period of time. That Dr. O'Neil stated that claimant could not return to his former employment as a correctional officer or guard over potentially violent patients or inmates. That Dr. O'Neil said that claimant was precluded from performing strenuous work in the future. That an employer retained a vocational rehabilitation consultant tested and evaluated claimant, but the test results and the evaluator's reports are not in evidence and there was no testimony from the evaluator. That employer advised claimant to apply for long-term disability benefits. That in order to receive long-term disability benefits, claimant was required to apply for social security disability benefits. That claimant was awarded social security disability benefits. That employer did not offer claimant any light or sedentary work which is the type of work that Dr. O'Neil said that claimant was able to perform. That claimant suffered from a number of disincentives to work or to be motivated to work such as obesity, hypertension, angina pectoris, dependant edema, and degenerative arthritis in his left knee. That claimant sustained an industrial disability in the amount of 50 percent to the body as a whole. That claimant received $11,784.15 in long-term disability benefits from the State of Iowa prior to hearing. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That the injury of August 27, 1986 was the cause of permanent disability. That claimant sustained an industrial disability of 50 percent to the body as a whole. That claimant is entitled to 250 weeks of permanent partial disability benefits. That claimant did not sustain the burden of proof by a preponderance of the evidence that he is an odd-lot employee. That the extent of defendants' entitlement to a claim for credit under Iowa Code section 85.38(2) cannot be determined from the evidence submitted at the hearing. That claimant is not entitled to any further benefits for the injury of December 9, 1986, as stipulated to by the parties. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of Two Hundred Twenty-nine and 44/100 Dollars ($229.44) per week in the total amount of Fifty-seven Thousand Three Hundred Sixty Dollars ($57,360) commencing on November 21, 1987. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants are entitled to a credit for eighty point eight five seven (80.857) weeks of permanent partial disability benefits paid at the time of hearing and the fall one hundred (100) weeks of permanent partial disability benefits that they had planned to pay at the time of hearing if in fact defendants have paid these benefits. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 28th day of February, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon Gallner Attorney at Law 803 3rd Ave. PO Box 1588 Council Bluffs, IA 51502 Ms. Shirley A. Steffe Assistant Attorney General Hoover State Office Bldg Des Moines, IA 50319 51401; 51402.40; 51803; 4100; 1701; 1703; 1704 Filed February 28, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES VAN, Claimant, vs. File No. 832067 CLARINDA CORRECTIONAL 841123 TREATMENT COMPLEX, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance carrier, Defendants. 51401; 51402-40; 51803 Claimant, a correctional officer and guard, 6 foot 4 inches tall and weighing 333 pounds, injured his back lifting a transportation kit weighing 80 to 90 pounds. Doctor awarded 20 percent permanent functional impairment and imposed restrictions of no prolonged walking, standing and climbing, and no repetitive stooping, lifting and bending. Claimant could not drive for very long. Doctor limited claimant to light or sedentary work. Defendants' vocational rehabilitation consultant tested and evaluated claimant. Test results or the evaluator's report were not served on claimant or his attorney. The evaluator did not testify. Claimant never heard from the evaluator again. Claimant quit school in the eighth grade when he was 17 years old and went into the army. Defendants instructed claimant to apply for long-term disability and terminated claimant. Defendants required claimant to apply for social security disability benefits and claimant was awarded social security disability benefits. At the time of hearing, claimant had a number of health problems and was receiving long-term disability benefits, social security disability benefits and permanent partial disability benefits and so there was little if any incentive to work. Claimant had not sought any work since the injury. Claimant awarded 50 percent industrial disability. 4100 Claimant was not odd-lot because he had not sought any work. 1701, 1703; 1704 Defendants credit for long-term disability payments could not be determined from the evidence submitted. Claimant did not introduce an administrative memorandum that he relied on. Defendants did not submit a copy of the long-term disability policy or even cite Iowa Code section 79.20 in their posthearing brief. The record did not disclose whether claimant received long-term disability benefits concurrently with or separately from workers' compensation benefits. It was determined that the State of Iowa Employees Long-term Disability plan qualifies for a credit under Iowa code section 85.38(2). During those times when claimant received both workers' compensation benefits and long-term disability benefits, credit is not available to deprive claimant of weekly benefits in the future, because workers' compensation is intended to insure that claimant receives a weekly benefits check every week. The long-term disability carrier may have an action against claimant for any excess payments they made to which claimant was not entitled. During those periods when the long-term disability was paid and workers' compensation was not paid, defendants may apply the credit. Sufficient data was not submitted for the deputy to accurately calculate the actual amounts involved. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HAROLD RICK, JR., Claimant, vs. THOMPSON ELECTRIC, CO., File No. 832229 Employer, R U L I N G and CIGNA INSURANCE COMPANY OF NORTH AMERICA, Insurance Carrier, Defendants. On February 19, 1988 claimant filed a petition for a declaratory ruling. On March 15, 1988 the undersigned entered an order of extension. Claimant on the same date filed an amendment to the previously filed petition. Defendants have filed a response to claimantOs petition. On April 13, 1988 the undersigned talked to petitionerOs attorney who, over the phone, agreed to waive his request to a right of meeting pursuant to paragraph 11 of his petition. Division of Industrial Services Rule 343-X.5 states that this agency may refuse to issue a declaratory ruling for good cause. WHEREFORE, claimantOs petition for declaratory ruling is refused for the following reason:. The questions presented by the petition are also presented in a current contested case that may definitively resolve them. THEREFORE, claimantOs petition for declaratory ruling is refused and dismissed. Signed and filed this 15th day of April, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. David A. O'Brien Attorney at Law 922 Douglas Street P.O. Box 3223 Sioux City, Iowa 51102 Mr. James. M. Cosgrove Attorney at Law 1109 Badgerow Building P.O. Box 1828 Sioux City, Iowa 51102 Page 1 before the iowa industrial commissioner ____________________________________________________________ : THOMAS EDWARD JOHNSON, : : Claimant, : : vs. : : File No. 832378 ROCHESTER PRODUCTS, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 28, 1990 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of August, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. P. D. Furlong Attorney at Law 401 Commerce Bldg P.O. Box 3005 Sioux City, Iowa 51102 Mr. Roger L. Carter Mr. William Kevin Stoos Attorneys at Law Jackson Plaza, Suite 300 P.O. Box 327 Sioux City, Iowa 51102 9998 Filed August 29, 1991 Byron K. Orton DAD before the iowa industrial commissioner ____________________________________________________________ : THOMAS EDWARD JOHNSON, : : Claimant, : : vs. : : File No. 832378 ROCHESTER PRODUCTS, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 28, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS EDWARD JOHNSON, Claimant, VS. File No. 832378 ROCHESTER PRODUCTS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Thomas Edward Johnson, claimant, against Rochester Products, employer, and Royal Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury of June 25, 1986. This matter came on for hearing before the undersigned deputy commissioner June 14, 1989 and was considered fully submitted at the close of the hearing The record in this case consists of the testimony of claim ant, Shirley Patch, Earl Rose, Jane Pflepsen, Shirley Iddings, and Rich Senger, and Joint Exhibits 1 through 13, inclusive, and 15 through 95, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved June 14, 1989, the following issues are presented for resolution: 1. Whether the claimant sustained an injury on June 25, 1986, which arose out of and in the course of his employment; 2. Whether the alleged injury is the cause of the disability on which claimant now bases his claim; 3. The extent of claimant's entitlement to weekly benefits including temporary total disability/healing period and permanent partial disability benefits, if any; and JOHNSON V. ROCHESTER PRODUCTS Page 2 4. Claimant's entitlement to certain medical benefits as provided by Iowa Code section 85.27. FACTS PRESENTED Claimant, a union plumber and pipefitter with a city plumber's license, testified he was injured in a fall while carrying a pipe weighing approximately 50 pounds. Claimant, who had injured his back in 1980 and had Harrington rods placed in his back in 1981 as a result of that injury, explained that the pain he felt immediately after the fall on June 25, 1986 was three or four inches above the pain he felt in his back after the 1980 injury and also that the pain went down both legs. Claimant recalled he reported the incident to his foreman, then went to see the company nurse and then went to see a Dr. Morgan who diagnosed a "stretched muscle" and told claimant to return to work and seek a consultation with H. Randall Woodward, M.D., who was claimant's physician for the 1980 injury. Claimant testified he did not go to see Dr. Woodward but returned to work the following day as defendant employer provided a lighter duty job, although claimant stated he was "in and out of the nurse's office lying down" all the while he was at work and could not recall whether or not he worked the entire day. Claimant explained that his pain continued getting worse and that he continued to see Dr. Morgan who, each time told claimant to "go see your own doctor." Claimant recalled that he went to see Dr. woodward in approximately July 1986 and that Dr. Woodward took him off work for a couple of weeks, restricting his ability to stand, twist, bend, kneel and lift. Claimant recalled that when he did return to work defendants gave him a "lighter duty" job sitting at a dial and that he tried this job on and off for four or five days during which time he was in the nurse's office lying down "a whole lot" and that eventually he was hurting so bad he walked out of the plant sometime just after the first of January 1987. Claimant stated that defendant insurance company has sent him to see Michael J. Morrison, M.D., who advised him to quit his job and that Dr. Morrison agreed with Dr. Woodward's treatment; that defendant sent him to see a Dr. Durward, who told him to see his own doctor and to a Dr. Samuelson, who told him to return to his doctor and to check out a pain clinic. Claimant testified that he followed Dr. Woodward's advice and underwent surgery in November of 1987 to take out the Harrington rod and to "fuse vertebra above the others" which had been worked on after the 1980 injury. claimant stated he was hospitalized for two weeks and restricted completely from lifting, twisting, kneeling and bending. Claimant testified that approximately six months after surgery he was advised he could begin lifting up to five pounds but that he was not released to return to work until August 1, JOHNSON V. ROCHESTER PRODUCTS Page 3 1988, with the restrictions of "light duty," lifting no more than 15 pounds, no twisting, bending or kneeling and no standing or sitting "for long periods of time." Claimant stated he did not return to defendant employer at this time because he did not believe he could do the job that was offered since he had tried doing it at home and he "hurt." Claimant acknowledged he did not try to do the job at work. Claimant explained that every thirty minutes he must change positions and that he can "maybe" walk a block before his back bothers him. Claimant testified he was offered a job as a service technician in California and that he therefore moved to California where he worked on a commission basis earning approximately $5,000 per month gross. Claimant explained that this was mostly light duty work and that he had two apprentices working with him. Claimant voluntarily left this employment to return to Iowa as his family had not gone to California with him. Claimant testified that since his return to Iowa he has been self-employed having formed his own heating/plumbing and air conditioning company. Claimant stated he can now lift a maximum of 25 pounds and that he employs subcontractors and others to do any "heavy work." Claimant estimated his earnings at $1,500 per month gross, $500 per month net. Claimant testified that he is still under the restrictions imposed by Dr. Woodward in August of 1988, that presently if he "does too much of anything" he is stiff and sore for three days after, that he cannot kneel, does not bend over anymore and does not have the flexion now that he had before. Claimant stated that he can manage being in business for himself because he can lie down whenever he wants to and that he "wants to do" his job and "does not want to be an invalid." On cross-examination, claimant testified he is an "able and gifted" mechanic, that he can install, design and supervise wiring, that he owned and operated a used car lot and has been a "very effective" drug and alcohol dependency counselor for his union. Claimant admitted that, along with the "pain factor," he did not wish to return to work with defendant because the job offered was "demeaning" and that he was "more qualified" than the job required. Claimant acknowledged that he was alone on the roof on June 25, 1986 and that the only injuries he sustained to his back were in 1980 and 1986 although "years and years ago" he went to see a chiropractor whom he did not consider a doctor. Claimant also acknowledged a 1977 injury from a fall off a ladder from which he maintained he had completely recovered. Claimant testified he settled the 1980 injury for a $21,000 payment on the basis of a compromise special case settlement (Iowa Code section 85.35). JOHNSON V. ROCHESTER PRODUCTS Page 4 Claimant explained that on or about January 7, 1988, he opened a used car lot where he managed the sales staff and hired two individuals for cash to do the labor for him. Claimant had no record of payment to either of these individuals and maintained that since he got no income from the car lot he did not consider it employment. Claimant admitted that he drove himself to California on one occasion since his most recent back surgery but maintained that he had to pull over several times in order to rest and change positions. Claimant, who owns some income property, acknowledged that since his last surgery he has repaired some steps, helped to install two furnaces, rerouted and repaired some plumbing and helped to load some junk into a pickup. The parties stipulated that, if called, claimant's wife would verify claimant's testimony and would similarly testify. Shirley Patch, who identified herself as the plant nurse for defendant employer responsible for the medical department and supervision of workers' compensation benefits paid to employees, testified that the light duty work available in the plant might have varied but all of it would have been within claimant's medical restrictions and would have paid claimant his regular wage. Ms. Patch explained that claimant worked from September 1986 through March 1987 at his regular job of pipefitter without voicing any complaint or inability to do his job and that claimant worked overtime during this period. Ms. Patch recalled that in March of 1987, when claimant did voice complaints concerning his back, he was placed on light duty working the dials which would allow him to sit or stand, "be his own boss" and that claimant refused the work because it drove him "crazy" but not on the basis that he could not do the job. Ms. Patch stated that when claimant was released to return to work he did not return but took his sick time, his vacation time and applied for a lump sum payment under the voluntary termination of employment program. That application, signed by claimant on October 13, 1988, states, in part: In consideration for the receipt of a VTEP payment, I understand that (i) I will cease to be a General Motors employe and my seniority will be broken at any and all of the Corporation's Plants or other locations as of the date this application for a VTEP payment is received by GM, and (ii) I will have cancelled any eligibility that I otherwise have had.for a Separation Payment and/or Redemption Payment under Exhibits D-1 and E-1, respectively, to the Collective Bargaining Agreement. I hereby acknowledged that I am voluntarily applying for this VTEP payment and that I am able and available for work and suffer from no disability that would preclude me from doing my regular assigned job. JOHNSON V. ROCHESTER PRODUCTS Page 5 I hereby represent that the information I am furnishing in this application is true and correct to the best of my information and belief. (Joint Exhibit 24) Earl Rose, who identified himself as a maintenance supervisor for defendant employer responsible for coordinating and delegating work to skilled personnel, testified that he was claimant's supervisor on June 25, 1986 and had no specific recollection of any conversation wherein claimant requested help carrying pipe. Mr. Rose stated he never denied an employee's request for help pursuant to his own and the company policy. On cross-examination, Mr. Rose testified that he did not recall claimant reporting an injury on June 25, 1986. Jane Pflepsen, who identified herself as an industrial engineer for defendant employer who lays out and designs work stations, testified that the light duty work at the dials constitutes small and separate work stations for sub-assembly. Ms. Pflepsen stated employees who work at the dials may sit or stand as they wish and they can shut off the dials and walk away from them if they need to. Ms. Pflepsen stated she prepares training films for defendant employer and that Exhibit 46 is a composite of those films. Shirley Iddings testified that claimant was her landlord for approximately three years and that she would call claimant or his brother if she had a problem at the apartment. Ms. Iddings stated that since June 26, 1986, she has called claimant concerning repairs and that claimant has personally made those repairs. Ms. Iddings opined that claimant had no problems lifting, bending or stooping. Ms. Iddings testified that claimant installed two electrical outlets in her kitchen, two furnaces with a friend, although claimant did most of the work, replaced two stairs, loaded and unloaded a pickup, repaired a faucet, was seen, with his son, carrying a "big roll of carpet" upstairs, corrected a leak on January 26, 1989, and carried in "a package of three tiles" for a drop ceiling for her apartment on January 31, 1989. Ms. Iddings recalled that claimant eventually installed those tiles for that ceiling. Ms. Iddings stated that on February 4 claimant came to her apartment to reroute the pipes, that claimant later climbed a ladder and reached overhead to repair a light fixture, that on February 8 claimant was seen carrying, with his nephew, two mattresses and that claimant, later in February, replaced a floor and installed plumbing pipes. On cross-examination, Ms. Iddings explained that while her relationship with claimant as her landlord was good in the past, JOHNSON V. ROCHESTER PRODUCTS Page 6 most recently it has not been "so good." Ms. Iddings acknowledged that defendant counselor's partner wrote a letter to claimant concerning a thermostat on her behalf and that she did not pay this attorney for those services. Rich Senger, who identified himself as a licensed private investigator with Interlux Investigations, testified he conducted surveillance of claimant during the summer of 1988, that on July 14 claimant was observed loading an air conditioning unit onto a Chevy pickup and that on July 16 claimant was seen working underneath his Chevy pickup. Mr. Senger opined that there was "no way [claimant] was hampered in what [he] was doing" and that claimant appeared to bend, stoop and twist freely. Mr. Senger summarized his findings and conclusions as: Information obtained concerning Mr. Johnson has shown him to be involved in automotive sales and repairs, independently and through his association with "Heartland Motors" of Sioux City, Iowa and in the repair and maintenance of rental property. He is also actively involved in heating and air conditioning work, locally, and presently has a position with a heating and air conditioning business in Anaheim, California. Through our documented observations of Mr. Johnson, we have found him engaged in a number of physical activities, including the loading and unloading of equipment, an air conditioning unit and various repair operations on motor vehicles and the regular operation of same, including Mr. Johnson's favorite vehicle, a dual wheeled GMC pickup. In these observations, neither I, nor my operatives have witnessed anything to indicate that Mr. Johnson's movement or functional ability is impaired in any way. His mobility and movements are fluid and unencumbered and he has displayed marked ability to bend, stoop, twist and flex with full mobility, while showing no signs of pain or discomfort. Any injuries Mr. Johnson may have suffered appears to have healed to the point that it no longer diminishes his capacity to effectively perform any task which he elects to perform. (Jt. Ex. 47) JOHNSON V. ROCHESTER PRODUCTS Page 7 The office notes of H. Randall Woodward, M.D., dated August 1, 1986, state: The patient reports a sudden onset of low back pain about 7/16/86 while he was "wrestling" with a 6" drain pipe. After the injury he was seen by his company doctor, who recommended muscle relaxants and two weeks of bed rest. He has done this, but continues to have discomfort in his low back. There is not a significant amount of pain in his lower extremities other than mild to moderate in his buttocks. Once again his neurologic examination is normal, and range of motion of his lower extremities is normal. I believe the diagnosis remains the same as when I saw him in March of 1986. He probably has pseudarthrosis, at least at L4-5. This may resolve with a little time and rest. I have given him a prescription for Flexeril and Indocin, and the patient should call my office in about 2 weeks to report his progress and see whether we should gradually return to normal activities at that time. (Jt. Ex. 1, page 3) Dr. Woodward, on October 7, 1987, summarized claimant's medical treatment to that date as: The patient is a 37-year old white male, who I first evaluated in 1981, at which time he underwent posterolateral spine fusion, L4 through Sl, using double Knodt rods in the distraction mode, with a right iliac autogenous bone graft. He had an excellent postoperative course and recovery, and went back to work, doing relatively heavy labor in a plumbing company. I released the patient to long-term followup, and he was not having much problems. He saw me in March, 1986, when I evaluated him for occasional discomfort when he was twisting, turning, or bending, but he had no radicular symptoms at that that. X-rays showed a probable pseudarthrosis at the L4-5 level. I recommended medical treatment at that point. The patient apparently then did well, until 07/16/86, when he had the sudden onset of low back pain while he was "wrestling" with a six-inch drain pipe. After the injury he was seen by his company physician, who recommended muscle relaxants and two weeks of bed JOHNSON V. ROCHESTER PRODUCTS Page 8 rest. The patient did this, but continued to have discomfort in his low back and was seen in my office on 08/01/86. I reviewed the x-rays and confirmed what appeared to be a pseudarthrosis at the L4-5 level. I recommended continued medical treatment, and gradual return to normal activities. The patient did improve to a significant degree over the next several weeks, and was able to return to light work duty within the next three or four weeks. However, he continued to have some discomfort and was treated with anti-inflammatory medications, primarily Motrin, with Flexeril and Parafon-Forte occasionally. I saw the patient once again on 05/08/87, and found he was having continued complaints of pain in the low back and the left lower extremity, with discomfort radiating down to the knee, which was constant. His right lower extremity was no problem. At that point I recommended exploration of the fusion mass and repair of pseudarthrosis, if present. He was evaluated by Dr. M. J. Morrison for this as well. .... X-rays show a pseudarthrosis at the L4-5 level, with graft material from L4 to Sl. There does not appear to be a pseudarthrosis at the L5-Sl level, and double Knodt distraction rods are in place. IMPRESSION: 1. Status post L4-S1 spine fusion with internal fixation. 2. Probable L4-5 pseudarthrosis. (Jt. Ex. 2, p. 3) S. Bailey, M.D., a consulting physician, noted his impression of claimant's condition as "Degenerative disc disease of the lumbosacral spine, status post posterolateral spinal fusion. Probable pseudoarthrosis." (Jt. Ex. 2, p. 6) On October 8, 1987 claimant underwent,an "Exploration of lumbosacral spine fusion and removal of internal fixation, and repair of pseudoarthrosis, L4-5 with left iliac autogenous bone graft." (Jt. Ex. 2, p. 8) On July 19, 1988, Dr. Woodward opined: I have recommended that Mr. Johnson return to work activities on 8/l/88. One could never be absolutely JOHNSON V. ROCHESTER PRODUCTS Page 9 sure that the fusion is solid, but it appears as if it is, and he seems to be getting along satisfactorily. In regard to his work activities, I think the patient could handle a restricted duty manufacturing job as you have outlined. Returning to his work as a "pipe fitter" may be possible but I would be hesitant to recommend this without qualification. He should avoid long periods of standing and walking and should avoid twisting, turning, and bending in the low back area. I believe Mr. Johnson has reached maximum medical improvement on 8/l/88. At this point his permanent partial impairment rating should be 22% of the whole man. (Jt..Ex. 4) Michael J. Morrison, M.D., of Orthopedic Clinic, P.C., saw claimant at the suggestion of Eischen Rehabilitation Services. On July 27, 1988, Dr. Morrison opined: I am writing you in response to a follow-up examination done on Tom Johnson, July 26, 1988. As you are aware, he underwent, in October of 1987, an exploration of a lumbosacral fusion and repair of a pseudoarthrosis from L4-L5 with iliac bone graft. At the present time, he has reached maximum medical recovery according to his primary physician, Dr. Woodward. His examination in the office reveals well healed midline and lateral incisions involving his lower back. His forward flexion is restricted to 30 degrees because of pain and stiffness. There is no gross muscle weakness in either lower extremity. Knee jerk and ankle jerks are 1+/4+ and straight leg raising is negative bilaterally. X-rays were deferred in our office since they have been recently done at Dr. Woodward's office and, according to the patient, he was informed that his fusion was solid. I also informed him that from my standpoint, he has reached maximum medical recovery from undergoing an L4 to the sacrum fusion. His permanency would be 20% whole body for all the surgery that he has undergone and his job description in the future should be to avoid frequent bending over to do any lifting greater than 30-40 pounds since this would reaggravate his back as well as avoiding prolonged sitting.or standing and if expected to sit for any extended period of time, he should be allowed to get up JOHNSON V. ROCHESTER PRODUCTS Page 10 and stretch as needed. He should not be expected to do any crawling, kneeling or squatting. (Jt. Ex. 69) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Of first concern is whether or not claimant sustained an injury which arose out of and in the course of his employment and whether the disability on which claimant now bases his claim is causally connected to his employment. The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of June 25, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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 JOHNSON V. ROCHESTER PRODUCTS Page 11 other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Claimant has alleged that on June 25, 1986, he was injured in a fall while carrying a length of pipe and that that fall was the precipitator of his subsequent medical treatment and disability. Claimant was alone on the roof when he alleged he fell. Defendants, outside of presenting fairly convincing evidence which calls claimant's credibility into question (claimant's failure to disclose prior injuries; claimant's assertion he was totally unable to work while at the same time making repairs on his rental property involving the expenditure of some effort on his part; claimant's practice of paying helpers at his own used car business in cash; and claimant's self-employment activities subsequent to June 25, 1986), presented no evidence which would show claimant did not fall as alleged. However, the greater weight of evidence leads the undersigned to the conclusion that even if claimant fell as alleged, his fall did not result in an injury which caused the disability on which claimant now bases his claim. As cited above, the question of causal connection is essentially within the domain of expert testimony and therefore it is appropriate to first review the opinions of Drs. Woodward and Morrison. Dr. Woodward, who treated claimant following the 1980 incident, opined as early as March 1986 that claimant was suffering from pseudoarthrosis, or nonunion at the L4-5 level. Claimant underwent a fusion at that level in 1981. Dr. Woodward, while noting a July 16, 1986 incident at work, does not causally connect claimant's later medical treatment or his impairment to the work incident. (It is noted that Dr. Woodward's dates are different from that alleged by claimant; however, it is also noted that the description of the incident recorded by Dr. Woodward is as detailed by claimant. Nevertheless, it calls into question the accuracy of claimant's history given to the doctor.) Dr. Morrison also does not causally connect claimant's problems to the alleged June 1986 injury. Dr. Morrison agrees with Dr. Woodward's diagnosis and treatment and opined that claimant's impairment was for "all the surgery that he has undergone." Like Dr. Woodward, Dr. Morrison does not causally claimant's disability with any incident on June 25, 1986. The greater weight of medical evidence establishes that the cause of claimant's current disability was the pseudoarthrosis or nonunion which came about as a result of the 1980 injury and 1981 surgery. There is no evidence to suggest the nonunion was caused by claimant's employment with defendant employer. The only evidence of a causal connection between claimant's employment and his asserted disability is claimant's own self-serving testimony. JOHNSON V. ROCHESTER PRODUCTS Page 12 The undersigned finds this insufficient to allow claimant to meet his burden of proof. Therefore, it is found that claimant has failed to show that on June 25, 1986 he sustained an injury which arose out of and in the course of his employment which is causally connected to the disability on which he now bases his claim. Accordingly, claimant shall take nothing as a result of these proceedings and the other issues presented for resolution need not be addressed. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made. 1. Claimant sustained an injury in 1980 and in 1981 underwent posterolateral spine fusion, L4 through Sl, using Knodt rods in the distraction mode, with a right iliac autogenous bone graft. 2. Claimant was found to be permanently impaired as a result of that injury and settled his workers, compensation claim under Iowa Code section 85.35. 3. Claimant's treating physician for that injury was H. Randall Woodward, M.D. 4. In March 1986, claimant returned to see Dr. Woodward for pain and Dr. Woodward diagnosed pseudoarthrosis, or nonunion, at the L4-5 level. 5. Claimant alleged he fell at work on June 25, 1986 while carrying a length of pipe. 6. Claimant was working alone when he alleged he fell. 7. Claimant's credibility is suspect. 8. Claimant was able to remain working at his regular job for some time after June 25, 1986. 9. Claimant eventually left work and underwent surgical repair of the pseudoarthrosis. 10. No medical practitioner who treated or evaluated claimant causally connects claimant's disability to any work injury on June 25, 1986. 11. The greater weight of medical evidence establishes that the cause of claimant's current disability is the pseudoarthrosis or nonunion which came about as a result of the 1980 injury and 1981 surgery. JOHNSON V. ROCHESTER PRODUCTS Page 13 12. The only evidence of a causal connection between claimant's employment and his asserted disability is claimant's own self-serving testimony. 13. Claimant has failed to show that on June 25, 1986 he sustained an injury which arose out of and in the course of his employment which is causally connected to the disability on which he now bases his claim. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made. Claimant has failed to show that on June 25, 1986 he sustained an injury which arose out of and in the course of his employment which is causally connected to the disability on which he now bases his claim. ORDER THEREFORE, it is ordered: Claimant shall take nothing as a result of these proceedings. Each party is assessed its own costs pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 28th day of February, 1990. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr P D Furlong Attorney at Law 401 Commerce Bldg P 0 Box 3005 Sioux City IA 51102 Mr Roger L Carter Mr William Kevin Stoos Attorneys at Law Jackson Plaza Ste 300 P 0 Box 327 Sioux City IA 51102 5-1100 Filed February 28, 1990 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS EDWARD JOHNSON, Claimant, VS. File No. 832378 ROCHESTER PRODUCTS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1100 Claimant failed to show an injury arising out of and in the course of his employment where, in 1980, he injured his back and underwent posterolateral spine fusion, L4 through Sl, using Knodt rods and the diagnosis in 1985 (claimant alleged a June 25, 1985 injury) prior to the alleged injury date was pseudoarthrosis or non-union at the fusion site.