Page 1 51803 Filed July 3, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : GARRY STONER, : : Claimant, : : vs. : : File No. 832932 MIDWEST MANUFACTURING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51803 Claimant, age 27, factory worker, with 5 percent impairment and 20 to 40-pound lifting restrictions was returned to work for employer with a small wage loss entitled to 12 percent industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONALD E. CARLE, : : Claimant, : : vs. : : File No. 833021 RILEY BROTHERS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY and : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is an arbitration proceeding brought by Donald E. Carle, claimant, against Riley Brothers, Inc., employer, and United States Fidelity and Guaranty Company, insurance carrier, defendants. The case was heard by the undersigned on July 18, l989, in Burlington, Iowa. The record consists of joint exhibits 1-50 and exhibits 51 and 52 for purposes of rebuttal. An application to strike from the record certain documents which were improperly and untimely appended to deposition transcript of claimant's expert Varner was filed by defendants on July 26, 1989. Claimant's resistance to respondent's application to strike was filed on August 1, 1989. After reviewing the application and the resistance, it is the determination of the undersigned that the deposition exhibits attached to exhibit 47A are admissible. All of the exhibits have been discussed in the deposition. Detailed citation references have been given during the deposition. Defendants have been afforded an opportunity to cross-examine Dr. Varner relative to the same, as well as to use the exhibits when deposing Dr. Harbison. It is the ruling of the undersigned that the aforementioned exhibits are admissible. Page 2 issues As a result of the prehearing report and order submitted on July 18, 1989, the issues presented by the parties are: 1. Whether claimant received an injury which arose out of and in the course of employment; 2. Whether there is a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; 4. Whether claimant is entitled to medical benefits under section 85.27 and/or a medical evaluation under section 85.39; and, 5. What is claimant's weekly benefit rate, if any. stipulations Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injuries; 2. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; 3. Medical/hospitalization expenses in the amount of ____________ (unknown) and defendants are entitled to credit; and, 4. Defendants paid claimant 23.14 weeks of compensation at the rate of $150.04 per week prior to hearing. facts presented Claimant completed the tenth grade before dropping out of school. He received his GED in 1978. Claimant testified he began his employment with defendant through JTPA and that he started on October 1, 1984, at the Washington Street plant. Claimant indicated he was hired to wash and hang parts with a solvent known as xylo or xylene. According to claimant, he would dip a brush into a bucket of solvents and brush the solvents onto the parts he washed. Claimant testified he performed this task for four or five hours per day. During the time he used the solvent, claimant testified he would become light headed. After an hour, he testified, he would have to go outside and smoke a cigarette. Then he stated, he would return to the building. Claimant reported he would get headaches which would last Page 3 for three or four days. Claimant indicated he was placed in several locations in both plant number 1 and in plant number 2. At one location, claimant indicated an exhaust fan blew solvent fumes directly into his face and he was not wearing a respirator. Claimant indicated he wore rubber gloves and an apron while working. The gloves covered his wrists, but according to claimant, xylene would get into the gloves and burn the skin. Xylene would also run into his shoes. Claimant testified he was often required to clean a particular 4 x 4 foot dip tank. He stated he would work approximately ten minutes near a trough and then he would have a headache. According to claimant's direct testimony, he was moody during the time he worked in plant number 2. Claimant indicated he sought medical treatment from N. D. Kauffman, M.D. Dr. Kauffman, in his letter to claimant's employer, wrote as of September 9, 1986: The above named patient has come under my care recently. He has multiple symptoms including irri tability, depressive feelings, memory loss, lack of initiative, etc. Current laboratory testing has demonstrated marked elevation of various solvents in his blood. It appears that the source of these is his workplace and it appears that his symptoms are related to such solvent exposure. I have advised him, on this basis, from a medical standpoint, that he must stop working at this time. The future resolution of his medical problem is absolutely uncertain at this point. Placing him on disability benefits, workmen's compensation, etc., would be absolutely appropriate. Please call if there are any questions. Later, Dr. Kauffman wrote in his letter of October 3, 1986: My impression is that Mr. Carle suffers from complex symptomatology which is related to solvent exposure. The presence of excess amounts of solvent has been demonstrated by blood levels. In addition, he seems to have a memory impairment. He has been seen by a neurologist who has interpreted that he has mixed motor-sensory neuropathy. This type of picture is seen with high solvent level exposures and is entirely compatible with this. I have accordingly advised the patient that he must not work any further. Due to the central nervous system damage which he's experienced as well as peripheral nervous system impairment, I do not feel he is a candidate for returning to any Page 4 kind of work at this point. Future acceptability for employment will be dependent on his recovery and it is anticipated this will some time to occur, and, in fact, may never occur. There is also no question that the patient's work exposure has been the cause of his high level of solvents. Claimant testified he was also examined at the University of Iowa Occupational Medicine Clinic on December 15, 1986. Claimant was seen by James A. Merchant, M.D. and L. Fuortes, M.D. Dr. Merchant opined claimant was not suffering from solvent induced neuropathy, but there was "a probable transient solvent intoxication with occupational exposure." As of February 16, 1987, Dr. Merchant recommended for claimant: We recommend that the patient's work environment and tasks be modified such as to minimize dermal and inhallational exposures to solvents. The only limitations placed upon his return to work are that protective clothing and engineering controls be provided. Although full length aprons, elbow length gloves, and local exhaust ventilation may satisfactorily limit solvent exposures, strong consideration should be given to use of an automated or self-contained degreasing unit. The solvents should not be used for hand washing under any conditions; industrial hand cleaners may be a suitable alternative. Consideration should also be given to use of respiratory protection. The record reveals that while claimant was seen at the University of Iowa Occupational Medicine Clinic, he was also continuing treatment with Dr. Kauffman. In April of 1987, Dr. Kauffman wrote a report concerning claimant's condition. He opined: He has had demonstrated peripheral neuropathy with associated symptoms as well as a change in mentation and this is also documented by testing, demonstrating that he has had toxic insult to his nervous system. It is well documented in the literature that exposure to aromatic solvents in the workplace is associated with development of these problems. In addition, Mr. Carle has a behavior problem which is simply characterized as an explosive temperament. On March 6 he had an explosion of his temper while in the presence of his stepdaughter and struck her on the face with his hand to the point where a handprint was clearly visible to me three days later, when I wasn't even expecting to find it. He has had multiple Page 5 episodes of a similar type of explosions in recent weeks. Going over this man's history carefully, he did have some indications of this type of behavior on an intermittent and milder basis prior to his working at Riley Brothers. However, this problem has become markedly exacerbated since his working there. The medical diagnosis for this condition has been variously termed episodic dyscontrol syndrome, episodic rage attacks, and limbic system dysfunction with pseudosensory phenomena without loss of consciousness and has also been loosely characterized as a temporal lobe seizure, although that is probably not the best terminology. This seizure-like behavior has been described in the literature in painters who are exposed heavily to solvents in their working environment. It is my opinion that whatever pathology he may have had before has been markedly exacerbated by his exposure to the solvents in his workplace. P.S. Mr. Carle will not be cleared to return to work until the episodic dyscontrol is under better control or otherwise he will be a significant danger to those around him in his workplace. Even at best, should such control be achieved, and it is anticipated it will be with the proper adjustment of his medication, I must say I have great reservations about sending a man back into an environment where he will be re-exposed to sol vents that have previously caused him injury. That should not, however, prevent his returning to some type of employment when his symptoms are adequately controlled. Dr. Kauffman determined that as of February 3, 1989, claimant had reached maximum recovery. Dr. Kauffman also opined claimant sustained peripheral neuropathy due to exposure to solvents in the workplace and claimant sustained episodic dyscontrol prior to his employment with defendant but that claimant's condition was exacerbated by the solvent exposure. Dr. R. F. Neiman, M.D., a neurologist, examined claimant in September of 1986. He opined claimant suffered from an axonal type neuropathy. He indicated the CT scan was normal and he would have to review medical literature for problems associated with organic solvents. The medical records indicate claimant was referred to Vernon P. Varner, M.D., by Dr. Kauffman. Dr. Varner also diagnosed claimant's condition. The physician opined: My consulting diagnosis is organic affective syndrome, organic mental disorder with organic brain syndrome, episodic rage reactions which are temporal-lobe like in nature related to the solvent exposure. Page 6 Dr. Kauffman's assessment - headache with the increased irritability "quite possibly secondary to a solvent exposure." He also is concerned about a possible depression - maybe secondary to solvents also. Dr. Varner testified by way of deposition on two separate occasions. In his first deposition, Dr. Varner testified that he opined to a reasonable degree of medical certainty that claimant had suffered an injury as a result of exposure to solvents. Dr. Varner testified he believed the injury would be permanent in nature. The physician testified that xylene can result in irreversible damage to the body. Dr. Varner cited the following textbook as a reference detailing the long term effects of xylene: i. general comments Aromatic hydrocarbons make up a large class of substances with wide uses in industry and in commercial products. They are used as fuels, paint and lacquer solvents, in adhesives, polymer solvents and additives, and cleaners, as raw materials for the synthesis of other chemicals and medicines, and in many other uses requiring volatile solvents or carriers. They also result from incomplete combustion of carbonaceous materials. As a group, their high lipid solubility results in accumulation in lipid rich tissues, particularly the brain, spinal cord, and peripheral nerves. Accumulation of these materials in the nervous system may lead to functional impairment either acutely or chronically. Impairment may be seen as nonspecific complaints of nausea, vomiting, weakness, tiredness, vertigo, or in more severe cases inebriation or unconsciousness. With some materials, such as benzene, seizures may occur. Recent studies on workers chronically exposed to mixtures of aliphatic and aromatic substances have found psychological and neurophysiological differences between solvent exposed and nonexposed workers, particularly painters, suggesting that aromatic hydrocarbons may have subtle long-lasting neurologic effects. For the most part, with the possible exception of the materials covered in this chapter, specific aromatic hydrocarbons causing long-lasting neural effects have not been identified. Neurotoxicity of Industrial and Commercial Chemicals, Vol. l John L. O'Donoghue p. 128. The record establishes that claimant was also examined in the Department of Preventive Medicine Environmental Health and Occupational Medicine at the University of Iowa by Laurence Julius Fuortes, M.D. Dr. Fuortes testified by Page 7 deposition. He testified to the following relative to claimant's condition: Q. Have you made any attempt to make a diagnosis of their condition? I'm speaking of Mr. Carle first. Have you made any attempt to diagnose his condition? A. Yes. Q. What is your diagnosis? A. A history of acute intermittent solvent intox- ication without evidence of chronic solvent- induced neuropathies or other neurologic sequela. And two, possible episodic dyscontrol syndrome. Q. Have you reached any opinions or conclusions as to the cause of problems that Mr. Carle has? A. Opinions. Q. I'm asking to give your opinion, if you can, to a reasonable medical certainty based upon your education and your experience and on your exami- nation of the patient and his medical records. A. Well, my opinion is that this man has not suf- fered a measurable loss or a documentable loss of neurologic function as a result of his oc- cupational exposures, per se. But he has severe symptoms. And my feeling is that these symptoms may well be situational, that he has a number of -- he has a number of stressors which may have con- tributed to this presentation. In other words, the toxin-induced neurologic dysfunction, organic brain syndrome, fronto- temporal lobe epilepsy, peripheral neuropathy, those diagnoses which were given to him and he was told which are a result of your solvent exposure, I can't corroborate and I have some difficulties with those diagnoses. Q. Do you have an opinion based upon reasonable -- A. But -- Q. Go on. A. -- the syndrome which he presents with of [sic] mood disorders, difficulty with mentation, that syndrome could well be mimicked by an anxiety disorder, an adjustment disorder, an adjustment disorder being a catch phrase for ones injuries, Page 8 long-time difficult [sic] subsequently. They could be the results of a combination of an intrinsic personality characteristic of this individual. I believe that if one could look into his prior record, one might find that he had problems with emotional control in the past. That's certainly a hypothesis, that the individual has not under- gone a dramatic change in personality. And that's one hypothesis. And another one that a lot of the syndrome may be the result of numerous interact- ing stressors; an occupational stress syndrome possibly resultant from a fear about the results of the exposures which maybe somewhat iatrogenic, may be somewhat a manifestation of the fear one has subsequent to seeing a physician and being told you have permanent serious brain injury. Those sorts of situations might have contributed to the medical syndrome that I observed. Q. All right. And those as you presented, Doctor, you presented those in a hypothetical. I guess what I would like -- I don't guess. What I would like you to say is do you have an opinion that the diagnosis which has been given to Mr. Carle by his treating doctors of peripheral neuropathy, frontal lobe syndrome, is, in fact -- do you have an opinion to a reasonable degree of medical certainty that that diagnosis is incorrect? A. The diagnosis of solvent-induced neurotoxicity is suspect, to my mind. Q. Do you have an opinion based upon reasonable medical certainty that it is incorrect? A. Solvent-induced neurotoxicity, I'll say that, that within my field of experience and research of the literature, it appears to me that this man's medical syndrome isn't entirely the result of the long-term neurologic sequelae of exposure to solvents. Q. I'm not asking you entirely. Was the exposure to not only solvents but to any type of toxic material which may be present in the workplace a cause or a contributor to his present or past problems? A. If we can go by it -- this in a different manner. I don't know if there is liturature [sic] which suggests -- Q. Sir -- Page 9 A. I don't know if there is literature which suggests that frontotemporal lobe epilepsy results from solvent exposures. I don't believe there is. Q. All right. Are you saying then that you disagree that that is a proper diagnosis in this case? A. That's a different issue. Q. That's what I'm asking you. I'm asking you does any exposure, whether it be to solvents or any material at the Riley Brothers Paints, is it a cause or a contributor to any of the diagnosed symptoms -- or excuse me, the diagnoses of his treating doctors? MR. STONEBRAKER: Excuse me. And don't answer until I make my objection. Counsel, I appreciate your difficulty with this subject matter. But that is a multiple question and involves too many things. THE WITNESS: You've asked several things. And as I said, I can go by these item by item. The diagnosis of frontotemporal lobe Page 10 epilepsy is suspect, firstly. Q. I'm not interested if it's suspect. Do you disagree with it? A. I can't corroborate it. Q. I don't care whether you can corroborate. Do you disagree with it? A. I don't agree strongly with it and I did not make that diagnosis myself. I have difficulty accepting the diagnosis. I would suggest if you want to pursue that question that you ask for another neurologist's opinion. But my opinion is that I can't corroborate that diagnosis. If I can't corroborate it, what can I tell you? That the likelihood to my mind is that he does not have frontotemporal lobe epilepsy, that that would be my interpretation of the data. But there's some more workup that could be done. The man could have ambulatory EEGs, certainly three negative EEGs don't rule out the diagnosis of epilepsy. But there are a lot of other explanations for people experiencing smells, an epilepsy. I think that there is some difficulty with medical semantics and I don't want to get overly bogged down with the term seizure, epilepsy, frontotemporal syndromes as you have used and say that if we were to rely more heavily on the crux of the matter, was the injury caused by the exposure which is what I was trying to get at, I'd have to say that I don't see evidence for this man having suffered a longstanding [sic] neurologic illness from a solvent exposure. Q. Do you see of any problems with solvent or any exposure? A. He definitely had recurrent acute intoxication. Okay. That in and of itself might have been tremendously anxiety provoking. Two example [sic] I gave Mr. Stonebraker is assume you go into work and you don't expect this to be anything but an ordinary work day and somehow through the day you start finding your tongue getting thick, your visual perception altered, you feel as if you're going to stagger and fall, you get out of the workplace and breathe some fresh air and you feel better. You know, what was that that happened to me? You go back in the workplace and that scenario repeats itself. That in and of itself without being forewarned Page 11 that the solvents you're dealing with could cause this syndrome could be incredibly anxiety provoking. In addition to that, being diagnosed as having a permanent brain injury might be tremen- dously anxiety provoking Q. With regard to the recurrent -- Let me just do one thing before I ask. Could I make a phone call? I'll just take a second. (A discussion was held off the record.) Q. Doctor, based upon a short conversation off the record, is it a fact that in your opinion, your diagnosis of Mr. Carle is not mutually exclusive of the diagnosis that his treating doctors have made. A. That's correct. Q. With regard to -- A. Excuse me. The diagnosis of frontotemporal lobe epilepsy, that's correct. Q. With regard to frontotemporal lobe epilepsy or frontal lobe or partial complex seizures, are those terms used interchangeably? A. I believe the most appropriate term is the partial complex seizure, yes. Q. All right. In diagnosing that condition, what are the symptoms that one might look for? A. Absence seizures, staring, spells of staring, these may be triggered or associated with certain stimuli or auras. And such an aura or anticipatory event might be the sensation of a particular smell. And these seizures may be predominantly sensory. Some- body might have auditory hallucinations, olfactory hallucinations and this be a manifestation of a seizure. Some people may have motor phenomenon, they may have twitching of the face, for example. Q. Is there an article which you believe gives an appropriate listing of the symptoms of partial complex seizures? A. A standard neurology text. Q. You have no preferences of one over the other? A. I can try to take them up with a recent review article on the topic and share it with you. Page 12 Q. With regard to the EEG that was done at the University, do you know whether or not there was any medication -- or that Mr. Carle was on any medication at the time that was administered? A. I believe he was on Tegretol at that time. Q. And Tegretol is an anticonvulsant; is it not? A. Yes. Q. And it's used to control seizure activity; is it not? A. Among other things. Q. And would that, if in fact Mr. Carle was on therapeutic dosage of Tegretol at the time of the EEG, would that affect the readings? A. It could. Q. Also, we discussed the recurrent chemical intoxication which Mr. Carle received. Do you have an opinion as to whether or not that was, in fact, a contributor, a cause or a contributing factor to the psychological prob- lems that you interpreted Mr. Carle as suf- fering from? A. That is a very likely scenario. I think that that would be a stressful event which might have affected his subsequent ability to work, his subsequent development of medical complaints. (Exhibit 36, page 40, line 3 to page 48, line 21) Dr. Fuortes also conducted an on site inspection of defendant-employer's plant. As a result of that inspection, he issued a report to defendants. A portion of the report recommended: A brief review of the recommendations for engineering and work task modifications resultant from the clinical evaluations and industrial hygiene walk-through performed with Dr. Berry include: 1) Use of protective clothing, specifically elbow length gloves and full length aprons, to minimize dermal contact with solvents such as xylene. 2) Consideration ought to be given to other protective clothing such as goggles and safety shoes. 3) Inhalational exposures to solvents ought to be minimized by implementation of appropriately designed local exhaust ventilation in areas where solvents are stored and used. 4) Consideration ought to be given to use of an automated, appropriately exhausted, parts degreaser, thereby precluding most dermal contact to solvents. 5) The dip tanks used for degreasing Page 13 grills and air drying method described present hazard for employees regarding resultant inhala tional exposure to solvents. Redesign of this degreasing operation and optimal exhaust ventilation (with exhausted air always being drawn away from employees breathing zones), are in order. 6) Documentation of capture velocity and proper maintenance protocol for the water rinse paint booths ought to be pursued as per the recommendations of the manufacturer, as was recom mended by prior industrial hygiene consultation. 7) Hand washing with solvents should not be permitted in the work place [sic]. Appropriate substitutes would include industrial hand cleaners, soap and water, and potentially large molecular weight hydrocarbons such as vegetable oils or vaseline. It was notable that three of the thirteen employees interviewed at the time of our walk-through demonstrated some degree of dermatosis secondary to hand washing with solvents, manifested by mild defatting and fissuring of the skin. 8) The procedure of standing and working on metal platforms above the rinse tanks presents another safety hazard which may be obviated by simple redesign of the work tasks and procedures. 9) The potential for a conflagration must certainly be considered in measures taken to prevent and control that possibility. Consultation with the local fire department may be quite reasonable. In the interim scrupulous hygiene, appropriate exhaust ventilation to capture volatile and solvent vapors, must be considered. Examination of all potential for ignition should be undertaken including sources of electrical sparks, friction, and other thermal energies. Strong consideration ought to be given to the maintenance of a nonsmoking work environment. In addition to the water sprinkling system, consideration ought to be given to an appropriate chemical fire prevention system. 10) In addition to the two individuals examined in our clinic, four of the thirteen indi viduals examined and interviewed on the day of our walk-through describe recurrent solvent intoxication states most commonly noting "dipping," and "grills". Although appropriate solvent vapor containment and exhaust is necessary, consideration ought to be given to use of respiratory protection. For those people who can tolerate same, negative pressure canister masks with appropriate canisters for solvent vapors may be satisfactory. For individuals with obstructive pulmonary physiology (asthmatics, bronchitics, or emphysimatics), negative pressure respirators may be poorly tolerated, and external air supplied respirators may be most beneficial. The problems with external air supplied respirators are that supplied air must be appro priately conditioned, as cold, dry air may well trigger bronchospastic physiology. In addition, Page 14 such a system must be appropriately designed and maintained to preclude introduction of any respiratory irritants or toxicants into the system. Regarding the concern of long term health effects subsequent to xylene exposure, such concern is understandable given the history which suggests exposure sufficient to cause recurrent intoxicated states. My pragmatic viewpoint regarding these concerns is that they be addressed by whatever means feasible to minimize all future contact with said solvents. As there is current interest and some controversy regarding long standing health effects of such exposures, the request of a health hazard evaluation seems totally appropriate. Again, pragmatically such issues may well be best addressed on an individual clinical basis....As stated in this document, "the major problem of xylene toxicity concerns it narcotic effects on workers, causing symptoms and signs such as muscular weakness, incoordination, and mental confusion which pose risk to both the worker and others." The blood samples obtained by outside physicians on the two individuals evaluated at the University of Iowa, and those who obtained in the work place [sic] on the bulk of employees at Riley Brothers were reviewed. These blood levels seem to be all of the order of magnitude expected given the degree of dermal and inhalational contact observed and reported. Such levels do not either surprise me nor suggest to me the presence of any permanent injury.... The evidence presented also demonstrates claimant received extensive psychological testing, treatment and evaluation. Frank S. Gersh, Ph.D., a clinical psychologist, evaluated claimant in 1986. Dr. Gersh testified by deposition. He testified he took a history from claimant and tested him. In his report of August 29, 1986, Dr. Gersh wrote: Impression: 1) Organic Brain Syndrome with signif-icant impairment of visual memory, left hand manual dexterity, sustained concentration and mental pro-cessing speed. 2) Organic affective Disorder. 3) Marijuana abuse. The exposure to Xylene is suspicious, especially given the high blood levels of various solvents. During his deposition, Dr. Gersh testified he did not form an opinion whether the organic brain syndrome described above was a permanent condition. Dr. Gersh opined claimant suffered brain damage and the damage was due to claimant's solvent exposure at work. Dr. Gersh, however, admitted he had not done laboratory research on the toxicological properties of any chemical substances. Claimant was also evaluated by Daniel Tranel, Ph.D., a Page 15 licensed psychologist. Dr. Tranel was retained by defendants. In his report of June 16, 1989, Dr. Tranel writes: The conclusion that Mr. Carle does not have brain injury related to solvent exposure is supported by the data from the neuropsychological examination conducted by Dr. K. Welsh, at the University of Iowa Hospitals and Clinics in January, 1987. According to Dr. Welsh, the neuropsychological examination did not indicate that Mr. Carle suffered from major brain dysfunction. I have reviewed Dr. Welsh's data, and I concur with her conclusion. I conducted a comprehensive neuropsychological and psychological examination of Mr. Carle on June 4, 1989. The results of this evaluation are as follows: (1) Mr. Carle has low average intellectual abilities, consistent with expectations based on his educational and occupational background. (2) Acquisition, retention, retrieval, and recall of verbal and nonverbal material are normal. (3) Speech and lingusitic [sic] functioning are normal. (4) Visual perception and visuoconstructive abilities are normal. (5) Executive control functions such as judgment, planning, abstract thinking, and decision-making, are normal. (6) Orientation and attention are normal. (7) Academic achievement skills are consistent with educational background. (8) Mr. Carle has significant depressive symptomatology, including demoralization, low self-confidence, and low self-esteem. This is most likely due to current social/personal stressors. In summary, I do not find evidence that Mr. Carle has sustained any permanent injury to the central nervous system. Finally, the record demonstrates that defendants also retained a toxicologist, Raymond D. Harbison, Ph.D. Dr. Harbison was deposed on two occasions. He also drafted a report for defendants, dated May 17, 1989. In his May report, Dr. Harbison wrote the following summary relative to claimant's condition: Conclusions In summary, the following points refute Mr. Carle's claim of xylene-induced central and peripheral nervous system injury. There is no medical consensus as to the nature of Mr. Carle's alleged neurobehavioral impairment. Overall, objective medical evidence of neurological injury is absent. Xylene has never been shown to produce a Page 16 solvent-induced organic brain syndrome. Even if xylene was associated with organic brain syndrome, Mr. Carle's psychological presentation does not fit the pattern reported to occur in individuals with this affliction. His exposure was limited and demonstrated by industrial hygiene surveys to be within occupational guidelines that produce no harm. Solvent induced brain damage is associated with long-term daily exposure to solvent levels in excess of safety guidelines recommended by the Occupational Safety and Health Administration. Mr. Carle's pre-existing neurobehavorial problems and his drug abuse obscure all attempts at defining the cause of his problem. The consideration of all these factors has led me to believe that there is no basis for Mr. Carle's claim of xylene-induced neurological injury. In his deposition, Dr. Harbison opined to a reasonable degree of scientific certainty that claimant did not sustain any medical, psychiatric, or psychological problems because of his involvement in the workplace at defendant-employer's establishment. Dr. Harbison also testified to the following: Q. Let me ask you about one of them in particularly [sic]. You mentioned in the report that Mr. Carle's ordered ailment [sic] are not consistent with the solvent of xylene? A. That's correct. Q. All right. Is that a basis for your opinion? A. That is a basis for my opinion, yes. Q. Describe in a little greater detail what your basis is for that statement? A. Sure. Xylene is a material that has the pharmacological properties of being a central nervous system depressant. That is, those are the effects that it produces when it gets into the body. The effects of xylene are reversible. That is, it can produce drowsiness. It can even produce unconsciousness, but in the absence of prolonged unconsciousness or hypoxia or anoxia, the effects of xylene are completely reversible. It's like many of the other aromatic solvents in that it has an anesthetic property. That is, it's able to cause a depression of the central nervous system which is a pharmacological effect that is completely reversible in its actions. Q. Would you describe for me the terms you used of hypoxia or anoxia? Page 17 A. Hypoxia is a deficiency of oxygen and anoxia is an absence of oxygen. If one were exposed to a sufficient level of xylene, xylene can cause unconsciousness. It can render one unconscious. And when one is rendered unconscious, respiration is shallow or depressed, and as a result of that, insufficient oxygen gets into the body. That can lead - if it is for any prolonged period of time - can lead to nervous system damage, but in the absence of that unconsciousness and hypoxia, xylene has pharmacological effects which are completely reversible. (Ex. 37, p. 13-14 to l. ll) Q. Dr. Harbison, as part of your analysis in this case, do you have a conclusion to examine what would be known of exposure, insult, and duration of exposure of Mr. Carle in regards to any claim of the central or peripheral nervous system damage? A. Yes, I've evaluated that. Q. Describe that, please? A. Well, the exposure of Mr. Carle may have been to levels that were well below the allowable levels; that is, the safe levels that are allowed in the workplace, and that exposure was for a relatively short period of time and it was also an intermittent exposure. That is, he worked for a period of time and then didn't work for a period of time, so the exposure was intermittent, the exposure was to low levels well below those allowed in the workplace to be safe, and that was my evaluation of the exposure of Mr. Carle. (Ex. 37, p. 14, l. 25 to p. 15, l. 14) Dr. Harbison additionally related he was not familiar with a solvent induced organic brain syndrome. He admitted he had never examined claimant but only reviewed medical records, depositions, the blood analysis done by Envior-Health Laboratories, and industrial hygiene reports. Dr. Harbison testified he did not believe claimant was exposed to xylene in excess of OSHA standards. John W. Fichel, plant manager, testified at the hearing. He testified that employees are "slightly intoxicated" and nauseated if they inhale too much xylene. Mr. Fichel testified claimant never complained to him about the effects of xylene. James S. Jenessen, president of defendant-employer, testified at the hearing. He reported an employee can experience light headedness and dizziness if he is exposed to a xylene solvent. The light headedness can happen readily but it is not a common occurrence. Mr. Jenessen stated there is a policy for breaks and opportunities for Page 18 fresh air. Mr. Jenessen denied he had received complaints from claimant relative to solvent exposure. Other individuals testified at the hearing. Their testimony did not bear upon the decision of the undersigned. applicable law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 18, 1986, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the Page 19 injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupa tional disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of June 18, 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 Page 20 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, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 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. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 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, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa Page 21 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). 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, 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 22 (Appeal Decision, March 26, l985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify 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, 388 N.W.2d 181 (Iowa 1980). analysis Claimant has proven he sustained an injury which arose out of and in the course of his employment. Claimant testified he worked with the solvent xylene in the workplace for five to six hours per day. Claimant reported the xylene would get on his hands and feet. The president of the company testified he did not require his employees to wear personal protective clothing or respirators. However, he did allow his employees to go outdoors and take a fresh air break whenever the employees felt dizzy. Claimant also testified he would become light headed and dizzy after working with xylene. A blood level analysis was conducted of claimant's blood sample. Xylene was found in claimant's blood. Claimant was exposed to xylene. There is no evidence, the xylene was from a source other than from claimant's workplace. Claimant's injury arose out of and in the course of his employment. The next issue to address is whether claimant's condition is causally related to claimant's injury. Claimant has proven by a preponderance of the evidence there is the requisite causal connection. Dr. Kauffman specifically related claimant's condition of peripheral neuropathy and a change in mentation to solvent exposure in the workplace. Additionally, Dr. Kauffman opined claimant's behavior problems were exacerbated by claimant's exposure to solvents. Likewise, Dr. Kauffman determined claimant's headaches were consistent with solvent exposure. Dr. Fuortes also causally related a portion of claimant's symptoms to solvent exposure in the workplace. (Ex. 36, pp. 40-41) The physician testified: ...I'd have to say that I don't see evidence for this man having suffered a longstanding [sic] neurologic illness from a solvent exposure. Q. Do you see of any problems with solvent or any exposure? A. He definitely had recurrent acute intoxication. Okay. That in and of itself might have been tremendously anxiety provoking. (Ex. 36, p. 45, ll. 16-20) Likewise, Dr. Varner causally related claimant's Page 23 condition to solvent exposure in the workplace. (Exhibit 34, p. 101, ll. 18-25) The third issue to address is whether claimant is temporarily or permanently disabled. Claimant has not proven by a preponderance of the evidence that he is permanently disabled because of his exposure to xylene in the workplace. Claimant has proven he has been temporarily disabled. Claimant has failed to prove that exposure to xylene results in permanent irreversible damage to the brain and/or the nervous system. Great weight is assigned to the testimony of Dr. Fuortes. He is board certified in internal medicine and he has experience in the areas of occupational medicine and environmental health. At the time of his involvement in this case, Dr. Fuortes was acting in the capacity of a public health service officer. He was not hired as a consultant for one party or the other. He was acting as an objective public official performing his regularly assigned duties. Dr. Fuortes diagnosed claimant as having: A. A history of acute intermittent solvent intoxication without evidence of chronic solvent-induced neuropathies or other neurologic sequela. And two, possible episodic dyscontrol syndrome. (Ex. 36, p. 40, ll. 9-13) In other words, the toxin-induced neurologic dysfunction, organic brain syndrome, frontotemporal lobe epilepsy, peripheral neuropathy, those diagnoses which were given to him and he was told which are a result of your solvent exposure, I can't corroborate and I have some difficulties with those diagnoses. ... A. -- the syndrome which he presents with of mood disorders, difficulty with mentation, that syndrome could well be mimicked by an anxiety disorder, an adjustment disorder, an adjustment disorder being a catch phrase for ones injuries, long-time difficulty subsequently. They could be the results of a combination of an intrinsic personality characteristic of this individual. (Ex. 36, p. 41, ll. 4-10, 14-21) Dr. Fuortes opined claimant did not sustain any permanent impairment because of his exposure to xylene. He was rendering an objective unbiased opinion in his official capacity. Dr. Harbison, although not a physician, is a professor of toxicology and pharmacology. He testified to a Page 24 reasonable degree of scientific certainty that claimant's complaints were not the result of exposure to xylene in the workplace. Additionally, Dr. Harbison stated the following relative to xylene exposure and its effects: Q. Let me ask you about one of them in particularly [sic]. You mentioned in the report that Mr. Carle's ordered ailment [sic] are not consistent with the solvent of xylene? A. That's correct. Q. All right. Is that a basis for your opinion? A. That is a basis for my opinion, yes. Q. Describe in a little greater detail what your basis is for that statement? A. Sure. Xylene is a material that has the pharmacological properties of being a central nervous system depressant. That is, those are the effects that it produces when it gets into the body. The effects of xylene are reversible. That is, it can produce drowsiness. It can even produce unconsciousness, but in the absence of prolonged unconsciousness or hypoxia or anoxia, the effects of xylene are completely reversible. It's like many of the other aromatic solvents in that it has an anesthetic property. That is, it's able to cause a depression of the central nervous system which is a pharmacological effect that is completely reversible in its actions. (Ex. 37, p. 13) Dr. Harbison also opined he had never heard of solvent induced organic brain syndrome. He further testified that exposure to xylene did not cause a permanent irreversible effect. Dr. Harbison did opine that an employee who was exposed to xylene needs to be concerned. The basis for that rationale was: A. My concern would be that they could injury [sic] themselves as a result of being intoxicated, that they could make bad decisions or inappropriate or decisions which could cause harm as a result of being intoxicated. That they couldn't perform their work duties as a result of being intoxicated, and that if the level were high enough, perhaps they would even be rendered unconscious and fall down and hurt themselves. So those would be my concerns. Q. If the workers never became unconscious to the point of falling down and not getting out of the solvent, do you think repeated intoxications can result in any permanent disability for a worker? Page 25 A. I would not believe that intoxication would result in a permanent damage to the nervous system even if that intoxication were on a rather frequent basis. Again, that's simply the pharmacological effects of these compounds. These compounds are able to cause central nervous system depression, and the pharmacological effects are reversible and do not result in permanent damage to the nervous system. (Ex. 37, pp. 45-46) However, the toxicologist did not believe claimant's complaints were the result of repeated exposures to xylene. Dr. Harbison opined there were confounding variables. Dr. Varner, on the other hand, is a psychiatrist/lawyer by education and training. He rendered an opinion which was outside his academic discipline. He had not had any formalized training in the fields of toxicology or environmental health. He provided an opinion which was contrary to the above two recognized experts. Consequently, not as much weight has been accorded to the opinion of Dr. Varner who was testifying outside of his recognized field. See: Hemm v. Van Buren School District, File No. 636036 Arbitration Decision filed October 25, 1984). Therefore, in light of the foregoing, it is the determination of the undersigned that claimant does not have a permanent disability to the body as a whole. The finding is based upon: 1) the aforementioned considerations; 2) based upon personal observation of claimant; 3) based upon claimant's testimony; and 4) based on agency expertise (Iowa Administrative Procedures Act 17A.14(s)). Claimant, however, was temporarily totally disabled under section 85.33(1). The section reads: 1. Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Dr. Fuortes opined claimant could return to work on February 16, 1987, so long as he was only minimally exposed to solvents. Dr. Fuortes acknowledged there was a difference of opinion between him and Dr. Kauffman. Dr. Kauffman, the primary physician, would not release claimant to return to work at that time. Dr. Kauffman opined claimant needed to exhibit more behavioral control before claimant was released to return to work. As of February 3, 1989, Dr. Kauffman wrote in his letter to claimant's attorney: Page 26 In actuality, the main disabilities that Mr. Carle sustains at this point are those related to the episodic dyscontrol syndrome as well as the severe headaches. Because of these problems and also his previous episodes of neuropathy it is absolutely mandatory that he not be placed in any environment where he would have further exposure to significant amounts of solvents. This would be solvents in even what would be considered safe amounts because of his increase susceptibility or lowered threshold created by his previous exposure and insult. In addition, his ability to work is significantly limited and complicated by the fact that he has difficulty dealing with pressure or stress as well as difficulty in dealing with groups of people. Any employment would have to be something that would be non stressful and require not much in the way of interpersonal relationships with other employees. My prognosis is essentially given above. I do not expect further improvement to occur in Mr. Carles [sic] condition. My recommendations are that he continue to take the medication that he presently is on which includes Verapamil for his headaches, Tegretol for the episodic dyscontrol as well as vitamin supplements and some Advil. In addition, he has been recently prescribed Zantac for treatment of indigestion symptoms. Claimant testified in February of 1987 he worked several hours per day at his mother-in-law's restaurant. According to claimant he was not paid cash for his services. The services were totally voluntary and he only worked for several months. It is the determination that this type of work was not substantially similar to the employment with which claimant had been employed. Claimant was still temporarily disabled during this period. Claimant also testified he moved to Arizona in January of 1988 where he began working for his uncle-in-law. Claimant was hired to pump septic tanks. By his own admission, claimant worked for five or six months. He was paid $200 to $300 in cash per month. Claimant moved back to the Midwest around the time he began receiving his social security disability checks. This was apparently in June of 1988. After reviewing all of the evidence, it appears while in Arizona, claimant was engaged in employment substantially similar to the employment in which he was engaged at the time of his injury. Under section 85.33(1) claimant's temporary total disability ended when claimant commenced his employment in January of 1988. For purposes of this case the undersigned finds the ending date for his temporary total disability to be January 1988. Claimant's rate of pay is calculated pursuant to section 85.36(6). This totals $2,574 divided by 13 weeks Page 27 equals $198.00 in gross weekly earnings. Using the 1985 rate book for married and four exemptions, this equals $136.83 weekly benefit rate. The final issue to address is whether claimant is entitled to medical benefits under section 85.27 after his health insurance paid some benefits. Claimant is requesting payment for: Medical mileage 7,876 miles x .21 /mile = $1,653.96 unknown $ 193.00 internal medicine 630.00 Mercy Hospital 301.25 Edward Larson, DDS, P.C. 27.50 Walgreen's 4.00 Wal-Mart 502.63 Mercy Hospital 3,066.70 Dr. Varner 153.75 Total $3,873.57 All of the expenses with the exception of the unknown bill in the sum of $193.00, and Dr. Larson's bill of $27.50, are reasonable and necessary medical expenses. Defendants are liable for the same as well as reimbursement to claimant for medical mileage in the sum of $1,653.96. findings of fact and conclusions of law Based upon the evidence presented, the testimony given and the stipulations of the parties, the following are the findings of fact and conclusions of law: Finding 1. Claimant sustained a temporary injury to his body as a whole as a result of a work injury on June 18, 1986. Finding 2. Claimant received medical treatment for his temporary injury to his body as a whole. Finding 3. Claimant was medically incapable of working at defendant-employer from June 18, 1986 to January 2, 1988. Finding 4. Claimant returned to work pumping septic tanks on January 3, 1988. Finding 5. As a result of his work injury on June 18, 1986, claimant incurred medical expenses and mileage in the amounts of $3,873.57 and $1,653.96, respectively. Finding 6. Claimant did not incur any permanent functional impairment as a result of his work injury on June 18, 1986. Conclusion A. Claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from June 18, 1986 to January 2, 1988. Conclusion B. Claimant has incurred medical expenses Page 28 in the sum of $3,873.57 and medical mileage in the sum of $1,653.96 for which defendants are liable. order THEREFORE, defendants are liable to claimant for eighty point five-seven-one (80.571) weeks of temporary total disability benefits at the rate of one hundred thirty-six and 83/l00 dollars ($136.83) per week. Defendants are also liable for medical expenses in the sum of three thousand eight hundred seventy-three and 57/l00 dollars ($3,873.57) and medical mileage in the sum of one thousand six hundred fifty-three and 96/l00 dollars ($1,653.96). Accrued benefits are to be paid in a lump sum together with the statutory interest rate allowable. Defendants are to be given credit for all benefits previously paid to claimant. Costs are assessed to defendants. Defendants are to file a claim activity report upon payment of all benefits. Page 29 Signed and filed this ____ day of April, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Edward M. Blando Mr. Jack C. Paige Attorney at Law 700 Higley Bldg P O Box 1968 Cedar Rapids IA 52406 Mr. John D. Stonebraker Mr. Mark D. Cleve Ms. Patricia Rhodes Cepican Attorney at Law P O Box 2746 Davenport IA 52809 1801; 1803 Filed April 27, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : DONALD E. CARLE, : : Claimant, : : vs. : : File No. 833021 RILEY BROTHERS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY and : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1801; 1803 Claimant was exposed to xylene, a solvent. The exposure was due to working with the chemical in the workplace. Claimant was temporarily disabled. He could not establish by a preponderance of the evidence that he was permanently disabled because of his chemical exposure in the workplace. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONALD E. CARLE, : : Claimant, : File No. 833021 : vs. : N U N C : RILEY BROTHERS, INC., : P R O : Employer, : T U N C : and : O R D E R : UNITED STATES FIDELITY and : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ It is hereby ordered that the arbitration decision in this matter filed on April 27, 1990, should be amended in the following particulars: 1. Paragraph 2 under the Order provisions on page 29 of the decision should be corrected to reflect that defendants are liable for medical expenses in the sum of three thousand six hundred fifty-three and 07/l00 dollars ($3,653.07). Signed and filed this ____ day of May, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Edward M. Blando Mr. Jack C. Paige Attorneys at Law 700 Higley Bldg P O Box 1968 Cedar Rapids IA 52406 Mr. John D. Stonebraker Mr. Mark D. Cleve Ms. Patricia Rhodes Cepican Attorneys at Law P O Box 2746 Davenport IA 52809 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DARRELL D. BROWN, : : Claimant, : : vs. : : File No. 833027 MIDWEST READY MIX, : : A P P E A L Employer, : : D E C I S I O N and : : HAWKEYE SECURITY INSURANCE, : : 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 December 26, 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 September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5935 Grand Avenue Suite 201 Des Moines, Iowa 50312 Page 2 Mr. Helmut A. Mueller Attorney at Law RR 5 Osceola, Iowa 50213 Mr. Thomas Henderson Mr. A. Roger Witke Attorneys at Law 1300 First Interstae Bank Building Des Moines, Iowa 50309 9998 Filed September 26, 1991 BYRON K. ORTON DRR before the iowa industrial commissioner ____________________________________________________________ _____ : DARRELL D. BROWN, : : Claimant, : : vs. : : File No. 833027 MIDWEST READY MIX, : : A P P E A L Employer, : : D E C I S I O N and : : HAWKEYE SECURITY INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed December 26, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DARRELL D. BROWN, : : Claimant, : : vs. : : File No. 833027 MIDWEST READY MIX, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HAWKEYE-SECURITY INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed June 15, 1988. Claimant allegedly sustained a work injury to his back when he slipped on oil while attempting to move a heavy chute while standing on the rear platform of a cement truck on September 5, 1986. He now seeks benefits under the Iowa Workers' Compensation Act from his employer, Midwest Ready Mix, and its insurance carrier, Hawkeye-Security Insurance. Hearing on the arbitration petition was had in Des Moines, Iowa, on April 27, 1990. The record consists of joint exhibits 1 through 17 and 19 through 22, defendants' exhibits 18 (except the deposition testimony of Jody Legler, which was excluded upon objection), 25 through 30 and 32, claimant's exhibits 23, 24 and 31, and the testimony of claimant, Jeff Johnson, Lewis Vierling and Tim Janssen. The exhibits include original x-rays and a videotape. Defendants' exhibit 18 includes the depositions of claimant, Fred Chiodo, C. E. Tindle, D.C., James Audlehelm, D.C., Robert Hayne, M.D., and Joshua Kimelman, D.O. issues Pursuant to the prehearing report, the parties have stipulated: that an employment relationship existed between claimant and Midwest Ready Mix on September 5, 1986; that if claimant sustained a work injury causing temporary disability, claimant's entitlement to healing period or temporary total disability is from September 6, 1986 through November 18, 1987; that if claimant has sustained permanent disability, it is an industrial disability to the body as a whole and the commencement date is November 19, 1987; that affirmative defenses are waived; that medical benefits are no longer in dispute. Page 2 Issues presented for resolution include: whether claimant sustained an injury arising out of and in the course of his employment on September 5, 1986; whether the alleged injury caused temporary or permanent disability and the extent of the latter; the appropriate rate of compensation; the extent to which defendants are entitled to credit for compensation paid voluntarily prior to hearing; whether claimant is entitled to permanent total disability benefits under the "odd-lot" theory of recovery; taxation of costs. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant, age 38 at time of hearing, has a work history in farming, construction work, machine operation, meat cutting and self-employment as a bulldozer operator. He began working for Midwest Ready Mix in April, 1985, and continued that employment with intermittent layoffs through September 5, 1986. C. E. Tindle, D.C., testified by deposition on June 1, 1989. He first saw claimant on July 28, 1986, less than six weeks prior to the claimed work injury. Claimant presented with complaints of lower back ache and discomfort in the left leg, which Dr. Tindle assumed to be radiating pain from the lower back. Claimant gave a history of this pain beginning after he had been driving a tractor for about four days. Dr. Tindle took an x-ray which he described as showing a vertebra pulled to the left indicative of muscle spasms in the lumbar region. Dr. Tindle treated claimant with manipulation of the lower spine on July 28, and again on July 30, August 4, August 6, and August 8, 1986. Based on his observations, Dr. Tindle believed that claimant was improving and, after claimant discontinued returning for treatment, further assumed that he was getting along alright. In fact, claimant had merely decided to shift his business to another chiropractor, a younger man and apparently more extensively equipped. This was James Audlehelm, D.C., who testified by deposition on April 27, 1989. Claimant presented to Dr. Audlehelm on August 9, 1986. He gave a history of having low back pain for the past two weeks which had started to bother him after he had been riding a tractor and that after riding a lawnmower the week before, was unable to get out of bed the following morning with radiating pain down both legs, especially the left. Forward bending caused radiating pain down the left leg. Claimant also indicated that his pain had become progressively worse over the past two weeks. He further complained that his legs would not hold him up when walking. Dr. Audlehelm described his chart notes of leg pain as meaning pain going down past the knees. Asked specifically Page 3 if the pain had been reported as radiating from the low back to the thigh area, he responded that he would have made a different chart notation. Claimant proved to be bilaterally positive on straight leg raising tests, which can be indicative of spinal nerve root impingement. Dr. Audlehelm considered it indicative only of low back muscle spasms, "irritation of the ligaments and nerves." Claimant had limited range of motion on extension, flexion, rotation and bending to either side. Dr. Audlehelm treated claimant with manipulation on August 9, 11, 13, 16, 19 and 22, 1986. He took x-rays on August 9 which he read as showing a congenital deformity in the L5-S1 area (an overgrowth of the left transverse process and right transverse process, referred to as sacralization). Thereafter, claimant appeared for treatment on September 5, September 8, September 9 and September 10. On September 10, claimant for the first time told Dr. Audlehelm of the alleged September 5 injury and further x-rays were taken. Little difference was seen. In describing the injury to Dr. Audlehelm, claimant stated that he had been stepping off the back of a cement truck and stepped in some grease, falling and injuring or reinjuring the low back. As of September 10, Dr. Audlehelm revised his original diagnosis of strain-sprain complex of the lower lumbar spine, sciatic neuralgia radiating into both legs and spinal misalignments to "severe" strain-sprain. Dr. Audlehelm felt that claimant's condition had worsened from when he had been seen in August, but was unable to state within a reasonable degree of chiropractic certainty that permanent changes had resulted from the alleged September fall. No evidence of trauma was noted on claimant's body. As it turned out, claimant suffered a herniated disc at L4-5 which has required two surgical interventions and has left him with great residual pain and disability. Claimant has been treated by numerous other physicians, but has apparently not given an accurate history to any of them. Dr. Audlehelm referred claimant to Thomas J. Lower, D.O., in October, 1986. Dr. Lower's report of December 11 of that year indicates a history of pain occurring as the result of the injury received while working as a cement truck driver and notes that "in summary, Mr. Brown does not appear to have any similar previous injuries, * * *." Claimant was seen for physical therapy treatment with M. E. Schinzel, R.P.T. Schinzel noted the following history on November 3, 1986: Objectively, the patient indicates he injured his back approximately two months ago while working as a cement driver. According to the patient, he slipped and nearly fell from the truck with the sudden unguarded movement being the cause of the pain. He has had no previous history of lower Page 4 back pain. Schinzel's notes also reflect that claimant described himself as not having immediately realized he had injured himself, but that pain progressively worsened throughout the day. Claimant's treating surgeon was Robert A. Hayne, M.D. Dr. Hayne testified by deposition on January 26, 1990. He first saw claimant on November 10, 1986, taking a history on that date as follows: A. History dating back to 5 September 1986, at which time Mr. Brown stated that he fell from a cement truck at work, and following this, almost immediately experienced pain in his low back and the right lower extremity. (Dr. Hayne deposition, page 3, lines 17 through 21) And: A. No. He was asked that, but any further elaboration as to any treatments that he had had of his back would not have been asked, because he said he had had no trouble with his back. Q. Where did he say he had no trouble with his back in the past? Did he write it down somewhere? A. No. His health in the past had been good, and he had had, he said, no difficulty with any areas in his body in the past, and so in view of the back being a part of his body, I assumed that he had no trouble there. (Dr. Hayne deposition, page 26, line 23 through page 27, line 8) Dr. Hayne was also asked the following hypothetical question: Q. Doctor, I'd like you to assume that each of those facts is true that I've told you about Darrell Brown, that he was employed by his father-in-law doing farm work during the summer of 1986, riding a tractor for up to 16 hours a day, and began to feel pain in his lower back radiating into his lower extremities. I would like you to further assume that he saw chiropractors on 11 occasions prior to September 5th, 1986, and I would like you to further assume that on one incident during that summer he was riding a lawn tractor and the next morning the pain was so significant, he had difficulty getting out of bed due to the discomfort. Doctor, I would like to ask you if you have an opinion within a reasonable degree of medical Page 5 certainty as to whether or not the disc that you treated him for in December of 1986 would have existed during the summer of 1986 when Darrell Brown was complaining of these difficulties? A. Yes. Q. And what is that opinion? A. I think that it did probably exist in a herniated condition. (Dr. Hayne deposition, page 15, line 5 through page 16, line 3) Dr. Hayne further indicated that if claimant had suffered a fall such as he described on September 5, 1986, it probably caused an aggravation to the herniated disc. Claimant was also seen by Joshua D. Kimelman, D.O. Dr. Kimelman testified by deposition on February 28, 1990. He first saw claimant on January 3, 1989. His chart notes of that date reflect as to the history he was given: This 37 year old male reported that on September 5, 1986, he slipped on some oil spill from the back of a cement truck and struck his lower back. He was able to work that day but had progressive discomfort in his back and leg pain since that time. Claimant did not advise Dr. Kimelman of his preexisting low back and left leg pain and chiropractic treatment in the six weeks preceding the claimed injury. Dr. Kimelman referred claimant to the University of Iowa Hospitals and Clinics. An admission chart note of April 13, 1989, apparently prepared by Brian D. Mulliken, M.D., and Ernest Found, M.D., reflects: Darrell Brown is a 37 year old white male here for evaluation of low back and leg pain. The patient had no previous history of back problems until 9/86 when he suffered severe back pain after slipping on an oil patch and falling on his back. Claimant testified not only at hearing but by deposition taken April 5, 1989. In his deposition testimony, claimant stated that later in the day he began getting strong sharp pains right in the middle of the back around the belt line area, but that it did not radiate into either leg at that time. He further indicated that when he had been seeing Dr. Tindle, pain was located in the buttocks area or on the side of the hip, but not in the lower back or into the legs. He further stated that prior to the subject accident, he had never had any trouble with his back at all. Prior to the accident he had no pain radiating below the buttock area. In his trial testimony, claimant indicated that the Page 6 pain for which he saw Drs. Tindle and Audlehelm did include some low back pain and leg pain and a "soreness" in the thighs. There are a number of other discrepancies with respect to the way in which claimant reported this injury. At hearing, he stated that he told dispatcher "Jeff" when he returned to the plant that he had fallen and was sore, but felt okay. Further, that he had told dispatcher Timothy Janssen of the injury on the same day after he had washed out his truck. Tim Janssen testified that "Jeff" was no longer employed by Midwest Ready Mix in 1986 and that he did not recall discussing the incident with claimant until a telephone conversation the next week. There are a number of minor discrepancies concerning whether claimant fell from a ladder or platform, whether the truck was at a job site or in the plant, and whether he slipped on grease or oil. None of these strike this observer as particularly significant, and are as likely to result from sloppy record keeping as a deliberate attempt at falsification. However, it is significant that claimant described the injury as occurring while he stood on a platform at the back of the truck and attempted to move a chute filled with cement residue so that he could wash the chute out into a storm sewer. While perhaps possible, an action such as this would be extremely awkward, the operator would not be able to operate controls with his feet, and the chute would be sufficiently heavy (containing concrete residue) that it would be extremely difficult to move from the back of a truck as opposed to from the ground. However, it is a little difficult to make a definitive determination because the videotape submitted apparently was of a different truck than the one operated by claimant. Given the above noted inconsistencies and problems in claimant's testimony and the very misleading histories he gave subsequent treating physicians, this observer finds himself unconvinced that an actual incident occurred on September 5, 1986, as claimant described. He obviously did suffer a herniated disc at some time, but as shown by Dr. Hayne's testimony, this very probably occurred in July or August when claimant sought 11 chiropractic treatments immediately prior to the claimed injury. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 5, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has failed to establish that a work injury occurred as he described on September 5, 1986. This is his burden of proof. As he has failed to meet that burden of proof, he has not established an injury arising out of and in the course of his employment causally related to his Page 7 current state of ill-being. Accordingly, other issues are moot. order IT IS THEREFORE ORDERED: Claimant shall take nothing from this proceeding. The costs of this action shall be assessed to claimant pursuant to 343 IAC 4.33. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Mr. Helmut A. Mueller Attorney at Law RR 5 Osceola, Iowa 50213 Mr. Thomas Henderson Mr. A. Roger Witke Attorney at Law 1300 First Interstate Bank Building Des Moines, Iowa 50309 5-1402.20 Filed December 26, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : DARRELL D. BROWN, : : Claimant, : : vs. : : File No. 833027 MIDWEST READY MIX, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HAWKEYE-SECURITY INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.20 Due to inconsistent medical histories and testimony, claimant lacked credibility. Although he had a herniated disc, he failed to prove a work injury as opposed to a preexisting condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT M. LAMB, Claimant, vs. File No. 833231 BETNER, INC., Employer, A P P E A L and D E C I S I O N AMERICAN MOTORISTS INSURANCE COMPANY - KEMPER GROUP, 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 issues on appeal are: Whether claimant sustained an injury on September 9, 1986 which arose out of and in the course of his employment; whether there is a causal connection between claimant's alleged work injury and his alleged disability; the nature and extent of claimant's disability, if any; claimant's entitlement to medical benefits pursuant to Iowa Code section 85.27; and the rate of weekly benefits. FINDINGS OF FACT Claimant was born June 16, 1964. Claimant testified he graduated from high school at age 21. Claimant said he has a learning disorder. Claimant stated he had many interruptions in grade school, junior and senior high school because his parents moved around so much. Claimant stated he took a remedial reading course at Hawkeye Institute of Technology in 1989. Claimant related he received C's and D's in high school. Claimant described his work history which basically involved working for minimum wages at fast food restaurants in various cities in two different states. He stated his jobs involved work as a crew member, cook and janitor. He stated he also worked a short time painting plywood for signs and helped to put them up. Claimant testified he started working for defendant employer at the Waterloo McDonalds in August 1986 as a cook. He said that a semi-truck came to the restaurant on September 9, 1986 with a delivery of different items including soda pop cylinders, boxes of paper, foam containers, tomatoes, Page 2 cucumbers and other items. Claimant had one helper whose name he could not recall. Claimant said that he and the helper were to unload the truck and stack the supplies on the shelves or in the cooler. Claimant described the various boxes, their sizes and weights, some weighing 50-75 pounds. Claimant said there was a conveyor belt running from the truck into the store. Claimant stated there was no ladder to use. Claimant said that he had to climb on the shelves and straddle them in order to stack the higher shelves. Claimant stated he first had to rotate the boxes or supplies on the shelves and then lift the new supplies to place them on the shelves. Claimant emphasized he could not bend his knees while straddling the shelves. Claimant said that as he doing this, he suffered a low back pain and headache. Claimant said he did not report this pain at first because he didn't think it was a big deal as he has had back pain before. Claimant related he finished work that day and went home. Claimant emphasized the pain was different from any time before and his back was swollen. He said he went to work the next day around 10:00 a.m. even though his back was sore. Claimant stated he became sick to his stomach, had a headache and his back hurt. He revealed he told the manager who suggested claimant continue to work. Claimant said he tried to work but couldn't, so he went home. Claimant said his wife told him his back was swollen, so claimant called Bruce, the district manager. Claimant related his district manager said to go to the hospital emergency room and send the bill to McDonalds. Claimant said he did not work Thursday, September 11, 1986, and delivered a doctor's slip to the manager on duty September 12, 1986 (Friday). Claimant said he then checked the bulletin board for the one week schedule and there were no hours after his name. He stated all the other workers had some hours after their names. Claimant said he talked to the manager who told claimant to call Bruce. Claimant related Bruce told him he was terminated and claimed that claimant did not put everything down on his application. Claimant said he put everything on his application to the best of his knowledge. Claimant said he lived on food stamps and help from the county and sold his blood for money after his September 9, 1986 injury. Claimant says his wife is currently receiving $347 per month in ADC and he is receiving $388 in social security benefits and both are receiving food stamps. Claimant said he was willing to have psychological help and physical therapy after his injury but the insurance company would not pay for it. Claimant explained he did not know who was paying for his physical therapy now. Claimant related the jobs he attempted to find, including those suggested to him by the vocational consultant. Claimant said he still has problems bending, stooping and lifting. He related the doctor put restrictions of no lifting over 15 pounds and no standing for long periods of time. Claimant acknowledged that when he applied for a job, he is honest Page 3 and does put his restrictions on the application. Claimant said the only injury prior to September 9, 1986 was an electrocution injury to his shoulder in 1983 which required surgery, a broken thumb, left hand and wrist injury in 1982 and a left carpal tunnel in 1983. Claimant contends he has no permanent disability from those injuries. Claimant acknowledged his income in 1984, 1985 and 1986 was $1,211.88, $500.83 and $1,430.81, respectively. Claimant admitted he had previously been fired at McDonalds Restaurant in the spring of 1985. Claimant also indicated that he was fired at Maidrite in 1986 and does not dispute his firing from JTPA in 1986. Claimant acknowledged he has a hearing problem, but emphasized he could work with his hearing loss problem. Claimant acknowledged that when his deposition was taken in February 1988, one year after his back surgery, he had said he had not gone out to look for work. Claimant claimed the doctor said he couldn't work at that time. Claimant explained he did not have the money to go look for a job, but indicated it was important for him to get a job. Claimant mentioned he feels that if he returns to work he may injure himself. Claimant acknowledged he is in better financial shape now than he was before his injury as he and his wife are receiving approximately $700 per month from social security and ADC and he only made approximately $1,500 in 1986. Claimant affirmed that the follow-up treatment recommended by the spine clinic was not done because the insurance company would not pay. Claimant acknowledged that defendant insurance carrier sent him there for an evaluation on July 12, 1988. Cheryl Lamb, claimant's wife, testified she has known claimant off and on since junior high school in 1978, but did not know him very well until the beginning of 1985. She emphasized she never knew claimant to have back problems before his September 9, 1986 injury. She recalled claimant came home on September 9, 1986 with his back hurting, and the middle of his back was swollen like a football. She could not remember if claimant called his employer the next day or on the 11th of September 1986. She said claimant then called the hospital emergency room after the call to his employer. Mrs. Lamb said claimant then contacted defendant employer after he had seen the doctor and later that same day defendant employer called claimant and told him he was fired. Mrs. Lamb testified that at that time claimant couldn't bend his knees without his back hurting. She emphasized claimant cannot do most things around the house. She said claimant can't read very well and has trouble spelling. Mrs. Lamb said she went with claimant to fill out an application at the Country Market and Hy-Vee. She said there were some questions neither she nor her husband could understand. Mrs. Lamb emphasized she would like to see her husband get work. She indicated he wants to get off social Page 4 security and she wants to get off ADC. Brad Kofron testified he is the manager of the Waterloo McDonalds restaurant and hired claimant in August 1986. Kofron said claimant never put on his application that he had previously worked at the Cedar Falls McDonalds restaurant, otherwise, he would have called Kevin Tanner. He emphasized that McDonalds has a policy that if you are fired at one McDonalds, you cannot work at another. He said falsifying an application is grounds for dismissal. Kofron stated claimant was hired part-time to work 15 to 20 hours per week at $3.35 per hour and claimant did work two weeks. He said there were others who were hired for 40 hours per week. Kofron contends he helped unload the truck with claimant and Craig Gates on September 9, 1986. He said there was a ladder to use to stock shelves. He said he didn't see claimant spreading his legs on September 9, 1986 in order to stock the shelves. Kofron testified September 11 was the first time he knew of claimant's injury. Claimant was to work on that date. He acknowledged he talked to claimant on September 12, 1986, at which time claimant came into the store and said he hurt his back. He told claimant to bring the medical bills to him at the store and he would send them in for claimant. Kofron emphasized he didn't say McDonalds would pay the bills, but only that they would reimburse claimant if the insurance company would pay the bills. Kofron admitted he called claimant and fired him after he found out claimant worked at another McDonalds and had been fired. Kofron said, "if claimant hadn't been fired before he probably wouldn't have fired him." Kofron contends he was with claimant while the truck was being unloaded on September 9, 1986. He contends the ladder is always in the back of the building inside. He said if he is short of people, he must find a replacement or help at the counter. Kofron revealed that Bruce Schadle, the district manager, called Kofron and said claimant wanted his pay and also stated claimant thought he hurt his back. Kofron related Bruce told him McDonalds can't tell the claimant what doctor to go to and that he was to tell claimant to go to whatever doctor claimant wanted. Kofron testified that he couldn't tell the claimant which doctor to go to treat his injury. (Tr., p. 228, ll. 15-18) He also testified that he had told claimant to bring him the medical bills and he would send them to the adjuster but he never told claimant the employer would pay the bills. (Tr., p. 216, l. 22-, p. 217, l. 16) Bruce Schadle testified he is the store manager at the Main Street McDonalds in Cedar Falls. He said he was the district supervisor of the five area stores on September 9, 1986. He said claimant called him on September 11, 1986 regarding two hours of pay and said he hurt his back two days earlier. Schadle said he referred claimant to Brad Kofron. Schadle testified McDonalds likes to hire part-time help. He said there is a small percent of full-time compared to part-time help. He indicated 15 to 20 hours a Page 5 week are normal in the industry. Schadle said that after claimant called him, he called Kofron and indicated he recognized claimant's name from signing his checks and found out claimant had been fired previously at a McDonalds restaurant. He then explained that they decided to exercise the area policy and terminated claimant based on misrepresentation on the application. He affirmed claimant worked 35.25 hours in the two weeks claimant was employed. He could not recall telling claimant to go to the doctor and send him the bill and they would pay. Gary Mudfrom testified by way of deposition taken November 16, 1986 that he was the store manager of the Kimball Avenue McDonalds restaurant, where the claimant's alleged injury occurred. He said he was the assistant manager in September 1986. Mudfrom said he wasn't working the afternoon of September 9, 1986. He said claimant was in a good mood on September 10, 1986 and appeared to be having no problems but by the afternoon claimant was an entirely different person. Claimant told him he wasn't feeling well. Mudfrom contends claimant never told him he hurt his back. Mudfrom said he heard claimant hurt his back from Brad Kofron, store manager. Mudfrom understood claimant was fired shortly thereafter. Kevin Tanner testified he is the owner of the Cedar Falls McDonalds restaurant and was store manager from 1984 through 1986. He said claimant was employed for seven and one-half months at this store from August 28, 1984 to April 4, 1985. He said claimant's job was as a crew person, food preparer, counter service and custodial. He related he fired claimant for misconduct involving poor motivation, being late for work, missing work without calling in, talking back to the manager and other employees. He indicated everyone at McDonalds starts out part-time to see how they do. Claimant was seen by David Poe, M.D., on September 18, 1986. Dr. Poe's medical records indicate normal neurologic except some decreased sensation at L5. X-rays were normal. The medical records of Dr. Poe indicate that on October 9, 1986 the lumbar CT scan was negative. Dr. Poe referred claimant to HoSung Chung, M.D., a neurosurgeon for a second opinion. (Cl. Ex. 11-1) In a letter dated October 15, 1986 Dr. Chung indicated that claimant had a lumbar muscular strain at most but wanted further tests to be conducted by A. Nakhasi, M.D. (Cl. Ex. 10) A letter by Dr. Nakhasi October 20, 1986 indicates that tests showed no abnormality. (Cl. Ex. 11-2) An office note by Dr. Poe dated October 28, 1986 indicated that a myelogram and an EMG were negative. On November 14, 1986 Dr. Poe's office note indicates claimant's pain was of an undetermined etiology and that he was referring claimant to John Walker, M.D., an orthopedic surgeon. (Cl. Ex. 44-2) The records of Drs. Poe, Chung and Nakhasi refer to a lifting episode by claimant on September 9, 1986. Dr. Walker testified by way of deposition on August 11, 1987 Page 6 that he first saw claimant on January 14, 1987 after a referral from Dr. Poe. Dr. Walker related the lengthy history claimant gave him including the medical services rendered to him. He said his initial exam revealed extreme tenderness at L5-S1 and also tenderness in the right and left sacroiliac. Dr. Walker arrived at a diagnosis on January 14, 1987 as follows: I felt he did have a herniated lumbar disc problem with a so-called sciatica on the left. And secondly, I said sacroiliac, but what he does have, what he had was a bad lumbosacral midline sprain, with an instability problem. And then thirdly, he did have a little sprain of the left sacroiliac joint, and a little pain in the right, but not terribly significant. Those three diagnoses. (Walker Dep., Joint Exhibit 1, p. 13) Dr. Walker said he suggested conservative treatment involv ing traction. On January 19, 1987, Dr. Walker hospitalized claimant and had a CT scan, MRI and myelogram performed which turned out to be negative, but claimant had an elevated spinal fluid protein which was significant and indicated some nerve root problems. He said a normal fluid is usually 15 to 45. Dr. Walker stated claimant's tests again proved negative and claimant was released from the hospital on February 3, 1987 with the following diagnosis: Three diagnoses I have put down for the discharge summary. Herniated lumbar disc with left-sided sciatica, probably an L-4 disc herniation. Two, severe lumbosacral sprain with marked instability at L-4, L-5. And, three, left sacroiliac sprain. I left out the right one. I really thought it was insignificant. I didn't even include it as a diagnosis. (Walker Dep., Jt. Ex. 1, p. 16) Dr. Walker said claimant still complained of a lot of back and leg pain. Dr. Walker said he next saw claimant on February 11, 1987 as claimant was having a lot of problems. Dr. Walker scheduled surgery, which he performed on February 23, 1987. He said he found no disc problems but did a fusion at L4-L5 and the sacrum. Claimant was in the hospital two and one-half to three weeks. On June 22, 1987, Dr. Walker said he gave claimant a TENS unit to wear. Dr. Walker said claimant came in on two occasions, June 22, 1987 and July 13, 1987, complaining that his leg gave out and he fell. Dr. Walker said he hospitalized claimant again on July 15, 1987 and there was still no evidence of disc protru sion. He discharged claimant at that time. Dr. Walker said he didn't release claimant to work and didn't think he was able to return at that time. Dr. Walker opined a causal connection between claimant's back condition and his injury on September 9, 1986 at McDonalds. At the time of his deposition, Dr. Walker opined a 20 to 22 percent impairment to claimant's body as a whole. Dr. Walker acknowledged that his preoperative diagnosis was different than his Page 7 postoperative diagnosis, because he didn't find anything in the disc area or disc problems. On December 7, 1987, Dr. Walker wrote, in part: The above captioned patient is certainly not coming along well at all. He continually falls and complains of pain in the left knee of course and has had major lumbar surgery consisting of wide laminotomies of L-4, L-5 and L-5, S-1 on the left with exploration of the 4th disc, foraminotomies and finally a bilateral, lateral fusion of McElroy including L-4, L-5 and the sacrum. The patient has improved a great deal as far as his pain is concerned but he is still functioning very poorly because of repeated falls and continued pain off and on.... At the present time I feel that this patient is badly disabled and certainly needs vocational rehabilitation training if at all possible and very possibly is a candidate for social security retirement. This patient cannot lift or bend repeatedly or stoop or crawl on his hands and knees. It might be able to carry for a few times per day, a 10 lb. object from table top to table top. Standing and sitting are going to have to be alternate as well as walking. In other words, the patient has to be able to change positions and apparently he has lots of problems. We see him frequently in the office for these falls and giving outs of the knee, etcetera. All bending and twisting must be restricted, particularly in the lumbo-dorsal region. Turning, reaching, pulling and pushing will be limited markedly and all-in-all the patient is really pretty badly disabled. Again to repeat, vocational rehabilitation may be a factor although the general impression that I have of this patient is that there is not too much that they can train him for. (Jt. Ex. 2, p. 21) On March 18, 1988, Dr. Walker wrote: It is certainly going to be most difficult to give you any proper evaluation of Mr. Robert Lamb. The patient constantly has muscle spasm of the low back and constantly falls. He has a knee that gives out and from week to week I see the patient up here with additional falls, apparently from some weakness or problem in the lower extremities. As far as lifting and carrying is concerned, perhaps he can carry up to 30 lbs. occasionally, once a day. He certainly should not do bending, stooping, shoveling, spading or activities which will put "torsion and twist" stresses on his low back. Also, he should probably not do any climbing of ladders. He certainly cannot do any work which will not allow him to sit a good deal of time. All-in-all I don't know if this man is rehabilitative material at all but I am sure you will want to test him and try. (Jt. Ex. 2, p. 20) On July 8, 1988, Dr. Walker wrote: Since this patient's problem in the low back with sciatica, Page 8 the herniated disc and fusion, he has had repeated problems of the left leg and knee giving out. Structurally he has been examined by Dr. Johnston and myself and the knee is basically sound but it does appear that this problem does arise because of the frequent falls and near falls he has had because of the left knee giving out. Secondarily then I believe the knee problem is a result of his low back injury and the Page 9 resultant problems as explained in the above paragraphs. (Jt. Ex. 2, p. 18) On October 19, 1989, Dr. Walker wrote: Robert Lamb was admitted to the hospital because his left leg was giving out and I felt that he probably had further disc disruptions and herniations. He was admitted on 10-10-89 for diagnosis and treatment. Prior to this on October 6, 1989 he had an EMG of the left, lower extremity and the impression was "chronic, mild, left L-5 radiculopathy". This radiculopathy involved only dorsal root of the sensory fibers of the 5th lumbar root but there was no motor involvement, according to Dr. John Milner-Brage. To return to his admission, he was discharged on 10- 11-89. The lumbar myelogram did not demonstrate the evidence of any disc protrusion. The CT scan showed post-operative changes and fusion of L-4 through the sacrum. There was, however, a very high, cerebral spinal fluid protein at 85. This is very suspicious and I suspect that maybe further surgery is necessary here. The patient has been a severe problem, of course, because of the continued pain and discomfort. At the present time we are planning no further surgery but it is possible that it may have to be done at a later date. (Jt. Ex. 2, p. 1) On July 21, 1988, James N. Weinstein, M.D., of the Spine Diagnostic and Treatment Center at the University of Iowa, wrote, in part: I feel that it would be helpful for you to continue to work with our psychologist, Gene Gauron, several times a month or you could also seek support from your local Mental Health Center in your community to assist you in dealing with some of the stress and frustration that has been caused by your condition. I feel that at this time you have an estimated permanent partial impairment of 12% to 15% of your body as a whole. At this time, you [sic] healing period is over. I disagree with the approach of "not doing anything" 100%. At this time, you need to begin your activity level in a graduated manner. This should be supervised by your local physical therapist. Because you have become so deconditioned and inactive over the past two years, it will likely take approximately another two years to recondition you to the point that you will become functional again. This will take a very intensive effort, both on the part of your therapist as well as a great deal of effort on your part to fully rehabilitate yourself. It is therefore, my recommendation that you begin by attending our two week Low Back Pain Rehabilitation Program here at the University of Iowa. This is an intensive program which consists of not only exercise conditioning, but also coping skills and education as far as management of your chronic low back pain Page 10 long-term. Normally our patients return to work very shortly after leaving this program, however, since you are so deconditioned it would not be realistic for us to expect you to return to work within the normal two weeks to one month after leaving the program. (Jt. Ex. 4, pp.2-3) On October 19, 1989, Scott B. Neff, D.O., wrote that claimant was there for a rating exam. Dr. Neff said he was confused by the records. It appeared he did not have all of the records. He didn't give claimant a rating in the letter, but one day earlier he signed a letter also signed by Thomas Bower,L.P.T. that claimant had a 20 percent impairment to his body as a whole. Both letters recommended a work hardening program. The functional capacity evaluation test (Jt. Ex. 8, p. 7) recommends claimant go through a four to six week hardening endurance testing and a sit-stand work hardening activity. Page 8 of this exhibit indicates claimant's work level as to physical demand is "sedentary 10 pound maximum lifting limit floor to knuckle." In summary, this report, in part, reflects: In summary I feel that Robert does present with some significant objective findings limiting his ability to completing spinal movements and lifting tasks. I do feel he could certainly improve his ability from the level he is presently exhibiting if he were to improve his flexibility and improve lifting mechanics. It is doubtful that he could resume anything more than light lifting activity but would certainly provide him more job opportunities than he is currently able to complete. He was able to complete standing waist level activities for 15 minutes with light activity without problems and anticipate if he were to get into a work hardening program he most likely could improve that ability. See page 3 of functional capacity evaluation test two. Presently he would be listed as sedentary in a physical demand work level category. (Jt. Ex. 8, p. 14) On July 18, 1987, claimant had a psychometic testing. The report summary, in part, reflects: The client was a twenty-three year old male functioning in borderline educable mental disability range of intelligence. His IQ score would place him at the sixth percentile. His academic achievement scores were at the seventh grade level in arithmetic and below the third grade level in reading and spelling. ...There was a speech problem but again he did not really want to discuss it. He was asked if he recieved [sic] speech therapy in school and he asked, "Why, do I have a speech problem?" It is believed his lower functioning level, lower academic skills, impaired back, etc., will make a rehabilitation program challenging at the current time. Page 11 (Jt. Ex. 12, p. 3) There are several rehabilitation service reports written in 1988 and 1989 regarding claimant. Jim Seitz, M.S., a vocational rehabilitation consultant involved with claimant, and David Prochaska, M.S., another vocational rehabilitation consultant, wrote consistently in their reports that: 1. Claimant is of borderline intelligence. He has a tested IQ of 77 and a reading and spelling capability of "below 3rd grade level". 2. He has a lack of transferable skills with very limited work history in the fast food industry. (Jt. Ex. 32, p. 3) Thomas W. Magner, a certified rehabilitation counselor, wrote on January 30, 1988: With his limited intellectual abilities he was limited in regard to employment possibilities. Since he has injured his back and therefore cannot work doing heavy work, nor can he for any extended period of time be on his feet or sit, he is severely limited. At this time I cannot think of any regular job Mr. Lamb could perform on a regular basis. (Jt. Ex. 33, p. 4) David Prochaska, a vocational rehabilitation counselor hired by defendant insurance company, testified he first came in contact with claimant on July 28, 1988 and worked with claimant to try to find a job. He acknowledged attempts to contact employers who may be interested in hiring claimant. He stated he is presently working with claimant and makes a phone contact every month or bimonthly. Prochaska said he contacted claimant's counselor at Hawkeye Institute of Technology and it appeared claimant's third grade reading and math skills increased to around the fifth grade level. He acknowledged claimant followed up on the job leads he gave him on his own, but claimant indicated he would like more references. He stated claimant took advantage of the insurance company's offer to reimburse claimant $.21 a mile to try and find a job. He said he saw joint exhibit 33 which sets out the job information. He emphasized claimant's goal of making $2,000 per month net is unrealistic. He suggested claimant needs to better groom and dress himself in his job hunts. Prochaska acknowledged claimant's application for vocational rehabilitation was denied. He did not know why but later acknowledged claimant's lack of transferable skills is a problem or barrier. He acknowledged claimant has minimum transferable skills. He disagreed with the Thomas Magner report of January 30, 1988. (Joint Exhibit 33) Prochaska indicated claimant could be a security worker, parking attendant, answer telephones, hotel clerk, pizza delivery person, ticket taker or a radio dispatcher with on-the-job training. He acknowledged that all these jobs require some type of record keeping, writing and spelling. He indicated claimant Page 12 does not like working at Domino Pizza as the horseplay and berating claimant for his low ability upset him. Prochaska claims he has placed people with similar skills and could place claimant if proper grooming is followed. Prochaska acknowledged that the economy has been depressed in Waterloo the last few years and has affected employment and job availability. He said claimant's very limited job history is a barrier itself. Prochaska admitted claimant's attorney called him and said if there are any problems, call him and he would help out. Prochaska acknowledged he never called Attorney Fulton and did place grooming as a barrier to claimant in his report. Prochaska testified claimant's IQ as 77 overall. He agreed an IQ of 77 is a significant barrier to employment and the number of tasks one can do is lessened. He said people with that IQ would be the first to go if there is a layoff. Prochaska acknowledged that he could not find claimant a parking lot job in Waterloo, even though claimant made an application for the job. He admit ted his predecessor, Mr. Seitz, also tried to find claimant a job and wasn't successful. Joint exhibit 35 reflects 152 entries of times for McDonalds employees on a two week basis. Of these entries, nine show employees working 40 hours per week or 80 hours in a two week period. Four of the nine is the same individual who worked 40 hours in a four two week period. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The first issue to be resolved is whether claimant has proved that he sustained an injury on September 9, 1986 that arose out of and in the course of his employment. Claimant alleges he hurt himself while unloading and storing items at work. His testimony is corroborated by the testimony of his wife and the medical records of Drs. Poe, Chung, and Nakhasi. Defendants assert that claimant is not credible. They also assert that the incident would not have occurred because there was a ladder to be used which presumedly, if used, would not have resulted in the incident. It is entirely possible that the ladder could have been present and the claimant did not use it. Merely because there was a ladder there does not mean that claimant could not have engaged in the activities he alleges resulted in his injury. Claimant sustained an injury that arose out of and in the course of his employment. If there was no other evidence of claimant's allegations this case might rise and fall upon claimant's credibility. Page 13 However, there is sufficient corroborating evidence that claimant did sustain a work injury. 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 next issue to be resolved in this case is whether there is a causal connection between the work injury and claimant's alleged disability. Nearly all, if not all, of the doctors who treated claimant shortly after his September 9, 1986 seem to agree that claimant had a lumbar muscle strain. Even Dr. Walker who eventually recommended and performed surgery initially thought claimant's condition was not that serious. Three of the four diagnostic tests used by Dr. Walker were negative. Dr. Walker performed surgery that resulted in a fusion at L4-L5 and the sacrum. His preoperative diagnosis was different than his postoperative diagnosis. Claimant's functional impairment appears to be attributable mainly, if not entirely, to the results of the surgery performed in February 1987. "If the employee suffers a compensable injury and thereafter suffers further disability which is the proximate result of the original injury, such further disability is compensable. Oldham v. Scofield & Welch, 222 ap is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the Page 15 healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Iowa Code section 85.34. Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. 1982). Claimant was 22 years old when he was injured. His work experience has been minimum wage jobs doing unskilled work primarily in various fast food restaurants. He has had problems in an academic setting. Retraining, or in this case training, is not likely. He has an IQ of 77. After Page 16 his work injury and subsequent surgery he now has a functional impairment of 20-22 percent of the body as a whole. He has both a substantial intellectual and physical deficiency. In the three years between the injury and the evidentiary hearing, the claimant has not found employment despite reasonable efforts and the assistance of a vocational consultant. Under the facts of this case, claimant is permanently, totally disabled. The last issue to be resolved is claimant's rate of weekly compensation. There is evidence in the record that there were regular full-time employees working for this employer and other McDonalds' in the Waterloo area. Claimant definitely made less than these full-time employees (claimant worked only approximately 35 hours total in two weeks). Claimant's rate of compensation should be determined pursuant to Iowa Code section 85.36(10). The earnings upon which the rate of compensation is to be based are 1/50th of the calendar months immediately preceding the injury. The record does not show any earnings during 1985, but unemployment was not atypical for this claimant. The total wages upon which the rate is computed is therefore $1,430.81. This is claimant's entire 1986 earnings less the $6.70 he earned the day after his injury. (Claimant appears to have been paid fully for the time he worked on the date of the injury.) The net figure is $1,424.11. The net figure divided by 50 equals a gross weekly wage of $28.48 per week, which in turn results in a weekly rate of $26.00 (it was stipulated that claimant was married and entitled to two exemptions and this stipulation will be used.) WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants pay claimant weekly compensation for permanent total disability pursuant to Iowa Code section 85.34(3) commencing September 11, 1986, and continuing at the rate of twenty-six and 00/100 dollars ($26.00) each week thereafter for so long as he remains totally disabled. That all amounts which are accrued shall be paid to the claimant in a lump sum together with interest computed at the rate of ten percent (10%) per annum from the date each weekly payment came due until the date of its actual payment in accordance with Iowa Code section 85.30. That defendants pay claimant's medical expenses as follows: Covenant-Schoitz Hospital $20,871.62 Orthopaedic Specialists 8,271.00 Clinical Radiologists 1,292.90 Consolidated Regional Labs 13.40 HoSung Chung, M.D. 90.00 Covenant Home Medical Services (TENS Unit) 525.00 Covenant Home Medical Services (Cane Rental) 53.50 Waterloo Anesthesia Group 570.00 City of Waterloo-Ambulance Service 340.00 Ashok Nakhasi, M.D. 120.00 Page 17 David Poe, M.D. 226.50 LaPorte City Medical Clinic 65.00 WYN Hosp. Television Inc. 21.84 River Plaza Athletic Club 108.73 Dale Clark Prosthetics 230.00 Dr. Milner-Brage 860.00 Total $33,754.49 That defendants shall pay the costs of this matter including the transcription of the hearing. That defendant shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). That this case be returned to docket for issue of penalty benefits under the fourth unnumbered paragraph of Iowa Code section 86.13, which issue was bifurcated. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert D. Fulton Attorney at Law P.O. Box 2634 Waterloo, Iowa 50704-2634 Mr. Michael A. McEnroe Attorney at Law P.O. Box 810 Waterloo, Iowa 50704 5-1100; 1402.40; 1804; 2500; 5-3003 Filed November 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT M. LAMB, Claimant, vs. File No. 833231 BETNER, INC., Employer, A P P E A L and D E C I S I O N AMERICAN MOTORISTS INSURANCE COMPANY - KEMPER GROUP, Insurance Carrier, Defendants. ___________________________________________________________ 5-1100 Claimant's testimony, which was corroborated by medical records, established that claimant sustained an injury that arose out of and in the course of his employment. 1402.40 - 1804 Claimant had a substantial physical impairment as a result of surgery done to correct claimant's pain from a work injury. Claimant was 22 years old and had a 77 IQ. His prior work consisted of minimum wage fast food jobs. He had been unable to find work after the injury despite efforts of a vocational rehabilitationist. Claimant was found to be permanently, totally disabled. 2500 Claimant's medical care was authorized. The employer told claimant that the employer could not control the care and employee chose a doctor who referred him to several other doctors. 5-3003 Claimant was a part-time employee for a fast food restaurant who worked 35 hours total in two weeks for the employer prior to the injury. Claimant's rate was calculated pursuant to Iowa Code section 85.36(10) by dividing total earnings in prior year by 50.