BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT J. THAYER, : : Claimant, : : vs. : : File No. 836037 MICHAEL REINERT, d/b/a OLSEN : WELDING & MACHINE, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GRINNELL MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Robert Thayer, against his employer, Michael Reinert, d/b/a Olsen Welding and Machine, and Grinnell Mutual Reinsurance, its insurance carrier, defendants. The case was originally set for hearing on December 12, 1990 in Storm Lake, Iowa. At the time, claimant was represented by Colin J. McCullough. Defendants were represented by Thomas Plaza. The parties had reserved eight hours for the hearing. However, by the end of the day, the case was not fully submitted. There were several witnesses who had not yet testified. The hearing was then continued to 10:00 a.m. on March 29, 1992 in Des Moines. An application for extension of time was filed by claimant on April 4, 1991 requesting that the hearing be rescheduled until June 5, 1991 as claimant's then attorney was hospitalized outside of the state. On May 8, 1992 a motion for continuance was filed by claimant on the basis that his attorney, Colin J. McCullough, had his license to practice law suspended for 60 days from April 17, 1991 and claimant desired to retain new counsel. A resistance was filed by defendants. The matter was rescheduled to August 15, 1991 at 10:00 a.m. On June 27, 1991 Jay P. Roberts entered an appearance on behalf of claimant. On August 6, 1991 Colin J. McCullough filed a withdrawal of his appearance. A motion for continuance and a motion to reopen record was filed by claimant Page 2 on August 13, 1991. A resistance was filed by defendants on August 15, 1991. On August 15, 1991 the remainder of the record was submitted after four additional hours of testimony. Briefs were due on October 4, 1991. The lawyers later agreed to delay the filing of the briefs until October 14, 1991. The evidence herein consists of the testimony of claimant. The evidence also consists of the testimonies of the following witnesses: Thomas A. Korn; Sue Thayer, spouse; Renay Barnes; Jo Weeces; Charlene Peters; Clarence Menke; William Post; Michael Reinert; and Steven D. Sherrets. The record is also comprised of: joint exhibits A-L; claimant's exhibits A, B, C, E, F, G; and defendants' exhibits A-F and H-O. It is noted there are duplicate exhibits in the file. Such duplication has resulted in unnecessary review of many exhibits by the undersigned. Duplication is to be eliminated in the future. Also, it is noted that some of the admitted exhibits, especially notes, are unintelligible. They are impossible to decipher. ISSUES The issues to be determined are: 1) The nature and extent of any healing period or permanent partial disability to which claimant is entitled; and 2) whether defendants are liable for the expenses of Thomas Korn. FINDINGS OF FACT The deputy, having reviewed the evidence, observed the witnesses and heard the testimony, finds: This is a most troublesome case. The undersigned has agonized over the voluminous record. Claimant was born on October 17, 1958. He grew up on the family farm. He is married with two children. At the time of his work injury claimant was single. He graduated from high school. However, his academic performance was less than stellar. He graduated 133 out of 155 students. His grade point average was less than a C. He had no formalized training subsequent to his high school graduation. All of his training was conducted on the job. Claimant sustained a work injury on October 1, 1986. At approximately 10:00 p.m. he was knocked on the head by a falling piece of lumber. He sustained a headache but he remained on duty. Approximately 45 minutes later he walked off of the scaf folding which was 10-12 feet off of the ground. Claimant's left side of his body hit the concrete floor. He sustained a closed head injury, a rib fracture and a left wrist fracture which required surgery. (Defendants' Exhibit D, page 4 and Joint Exhibit A114). Claimant was hospitalized but he was unconscious. He has few memories of the incident. Page 3 Claimant's spouse, Susan Thayer, described claimant's diffi culties as: A. Well, he has a lot of memory problems, both short-term and long-term. He has headaches, which he never used to have. He has terrible mood swings, real short temper. He has trouble sleeping. Q. Anything else that you can attribute to the incident? A. Basically that's it. His physical problems, his headaches, and he gets disgusted with himself when he can't do what he used to do. (Def. Ex. L, p. 12, lines 10-19) Claimant was off work for a period of time. He eventually returned to work in his former capacity. He continued to perform various duties as a welder. There was disagreement whether claimant could perform his duties in a satisfactory manner. Michael Reinert, owner of the business, described claimant as a slow but dependable employee. Claimant was often assigned tasks which required responsibility. Claimant's symptoms waxed and waned over the course of the next year. In April of 1987, Quentin J. Durward, M.D., described claimant's condition as: Robert Thayer returns to the Outpatient Clinic today, now six months since he suffered his severe head injury in a fall from a scaffolding. He actually has made a rather remarkable recovery and was able to return to his job in about January 1, 1987. He still has a number of problems he mentions to me. He intermittently will have severe bifrontal headaches, they're not present everyday. They can last either a short period of time, but occasionally they last for a couple of days. Currently in the office he has no headache at all. They often, when they occur, occur when he awakens in the morning. Secondly, he notes that when he wears a watch on his left hand, his hand goes numb. He is going to be see ing a hand specialist about [sic] shortly. Thirdly, he has numbness feeling under the left armpit over the ribs. I explained this is likely related to the rib fractures he had. Fourthly, his memory is poor. He has some vague memory of the day before the accident occurred. However, he then appears to have about six or seven days of post traumatic amnesia after that before his memory becomes fluent again. Intermittently, he feels "dizzy" (equals Page 4 spinning). This occurs with postural changes, particu larly looking under ledges, etc. He has difficulty with his memory for recent and past events. He [sic] "deaf" in his left ear and his concentration is poor. He is on no medications except for Ascriptin for his headaches. PHYSICAL EXAMINATION: Demonstrates a very well-looking man in no distress. Vital signs are quite normal with blood pressure of 130/80. His memory is poor. I gave him three items at five minutes and he only remembered one and a half. Otherwise his intellectual function appears to be intact. His speech is normal. His cranial nerve exam ination is abnormal except that he has a postive [sic] Barany's maneuver back and to the left. He also has sensory neural hearing loss in his left ear and scar ring of his left eardrum. Peripherally, his nervous system is grossly intact. However, he does have balance problem. He can stand erect with his eyes open without moving, but with clo sure of his eyes, he does tend to fall back and to the right. He also cannot tandem gait. This patient is still suffering to a lesser degree a post traumatic head injury syndrome. The dizziness is likely related to injury to the labyrinth, probably on the left side. This will gradually improve with time. The headaches, poor memory and poor concentration; I think, directly relate to his original injury and will, I think with time, gradually lessen. Mainly, I gave him encouragement that with time, he would improve. I think it's likely that in another six months, most of his syndrome will have resolved. In the interim, I think he should continue working, however I would not recommend that he should be in a situation where he is at a height. I think that with is [sic] his balance being as it is, he should not be above ground level, except for on a large floor area. Certainly, he should not work on scaffolding. He will contact me in six months time should any of the symptoms persist. (Jt. Ex. A124 - A125) Dr. Durward rated claimant as having a permanent partial impairment according to The Guides to the Evaluation of Permanent Impairment published by the American Medical Association. The neurologist opined that: Mr. Thayer does have a permanent impairment rating. This would consist of 2% permanent impairment for loss Page 5 of smell. For the loss of memory I would rate him 15% permanently disabled. This would give him on overall permanency of 17% (Jt. Ex. A178) Michael F. E. Jones, M.D., diagnosed claimant's left ear condition as: He has a persistent high frequency hearing in the left ear. Whereas I cannot say 100% that this is from his injury, it probably is. Noise induced hearing losses, which sometimes are similar to this, are usually bilat eral and he had no other incident of note to cause it. He also has a very poor discrimination score in the left ear and I think both the high frequency neurosen sory loss and the poor discrimination score in the left ear are as a result of his fall. The high frequency loss certainly will be permanent, although his discrim ination score may improve slightly. Only time will tell. There is no further treatment of this at this time other than to repeat his hearing test at three to six month intervals to see if he is stabilizing. In lieu of any other symptoms from the patient such as nausea, vomiting, dizzy spells or fluctuant hearing loss I would not have to see him back again. (Jt. Ex. A-13) Dr. Jones referred claimant to Denise R. Miller, M.D., Clinical Audiologist. Dr. Jones also referred claimant to Ray Stallons, Audiologist, M.S. Mr. Stallons authored a report dated May 5, 1988. In the report, the audiologist opined: Test results indicate normal hearing for the right ear, and a mild to severe sensorineural high frequency loss for the left ear. Live voice speech audiometry produced results consis tent with the pure tones: SRT's 15dB HL for the right ear and 35dB HL for the left, while discrimination scores were 96% and 84% for the right and left ears respectively. His uncomfortable level (UCL) was 85dB for both ears. He explained his tinnitus as a noise and a tone as a ringing in the left ear. Using the Norwest Acoustics Tinnitus Analyzer, his noise was determined to be at 2250 Hz. and the tonal portion was 2670 Hz.; both at 69dB SPL. A hearing aid was fit to his left ear which was designed to cover the loss in the left and also cover the tinnitus noise from 2000 - 6000 Hz., and the results rendered improved hearing without the tinnitus. Page 6 The latter was masked with amplification. An impression was made for an In-The-Ear hearing instrument with Adaptive Compression which covers his hearing loss; covers the tinnitus, and will not exceed his uncomfortable level of 85dB. The Marcon MAT/AC hearing instruments was fit on May 2, 1988 to his satisfaction. The hearing was improved for the left side with 20dB of gain and the tinnitus was covered. (Jt. Ex. A185) A hearing aid was prescribed for claimant's left ear. He wore the device but not on a continual basis. Claimant's left arm continued to cause problems for him as well. After he was released from the hospital, he was treated conservatively. However, even after he returned to work in January of 1987, claimant continued to experience difficulties with the left arm and wrist. Eventually claimant felt the neces sity to leave work because of persistent arm pain. On October 6, 1987, Brian Butler, M.D., performed a Darrach Procedure on the left arm (Jt. Ex. A138). Dr. Butler engaged in follow-up care. As of May 9, 1989, Dr. Butler opined that claimant had reached maximum medical improvement with respect to the left upper extremity, and he had rated claimant as having a 35 percent impairment of the left upper extremity (Jt. Ex. A387). Dr. Butler placed claimant on permanent restrictions with respect to the left upper extremity. Claimant was restricted from returning to the welding profession (Jt. Ex. A187). Butler also temporarily restricted claimant from heavy lifting, pushing or pulling weights greater than 20 pounds (Jt. Ex. A220). The orthopedic surgeon also restricted claimant from working in extremes of heat and cold and from climbing (Jt. Ex. A219). Dr. Butler opined that claimant was capable of engaging in vocational rehabilitation and pursuing employment in the follow ing careers: surveyor's helper; truck driver; delivery truck driver; forklift operator; and equipment operator. The only restriction relative to the employment was extreme weather condi tions. Since claimant was precluded from returning to his former position, claimant engaged in numerous attempts to rehabilitate himself. There was a plethora of rehabilitation experts, nurses, psychologists, evaluators, counselors, and neurologists who attempted to rehabilitate claimant, at one point or the other. Claimant, however, had not resumed gainful employment by the date of the hearing. However, he was awarded disability benefits by the Social Security Administration. The record establishes that while claimant had not returned to gainful employment, he was capable of tilling gardens on an Page 7 intermittent basis; mowing his own lawn; engaging in some light mechanical work; child care; running some machinery; and driving an automobile at least as far as Sioux City, Iowa. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not estab lished has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disabil ity on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circum stances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insuffi cient alone to support a finding of causal connection, such tes timony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson, 217 N.W.2d 531, 536 (Iowa 1974). To establish compens ability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348 (1980). The principal issue here is the nature and extent of claimant's injury, especially the portion dealing with claimant's closed head injury. In Iowa functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee 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 Page 8 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 func tional 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 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; earn ings prior and subsequent to the injury; age; education; motiva tion; 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 trans fer 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 mat ters 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 func tional 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. Section 85.34. As aforementioned, there are widely disparate expert opin ions. The opinions are on opposite ends of the spectrum. There is one consensus, however. Claimant is functionally impaired. There is the opinion of Thomas A. Korn, Ph.D., a neuropsy chologist and a specialist in head trauma. He testified: "Bob Thayer is unemployable. He cannot sustain competitive employ ment. He is not a candidate for competitive employment. Left to Page 9 his own resources, he will become a danger." (Transcript A, p. 81, ll. 8-ll). Dr. Korn also testified that: Q. Do you foresee Bob Thayer being able to effectively compete on the open job market or do you foresee him to be a person if any work is going to be in a shel tered workshop environment? A. For Bob Thayer adult day care, a work activity cen ter, because I doubt that he is productive enough to be able to sustain himself even in sheltered employ ment if they follow the department of labor guide lines to the letter, or in a home craft program, is really about as good as you can expect for an out come with Bob. What you want for Mr. Thayer is activity, structured activity. If he has structured activity he is less likely to get into trouble. (Tr. A, p. 84, l. 21 through p. 85, l. 9) On the other hand, defendants' neuropsychologist, Steven D. Sherrets, Ph.D., testified that: A. In terms of that specific question, I do believe that he sustained an injury to the brain at that time and does continue to show some residual deficits of it. In terms of precisely measuring the degree of the deficits, it's difficult because I believe there's a significant degree of psychological elevation in terms of the results. I don't believe that they are to the point where they are significantly disabling at all. Q. How would you describe the level of the impairment? A. My opinion in terms of looking at the overall record and the results, I would classify the brain injury as a mild one at this point in terms of where I think the residuals are. (Tr. B, p. 20, l. 24 through p. 21, l. 14) The above two neuropsychologists have nearly equal qualifi cations. Neither one is board certified in neuropsychology and both have wide experiences. They are both well respected. Then there is the opinion of James R. Hairston, Ph.D., Department of Psychological Services, Marian Health Center. Dr. Hairston has a doctorate but he does not have as much expertise in the area of neuropsychology. He tested claimant in a number of areas. The test results are as follows: Bender Visual Motor Gestalt Test (BVMGT) Page 10 Patient's Bender score (10) indicates organicity in the Borderline area. Hooper Visual Organization Test (HVOT) Patient's score (16.5) indicates likelihood of impairment of cogitive [sic] functioning is High. The degree of impairment is Moderate. Recognition Memory Test (RMT) Memory for Words score (27) is less than 5th percentile for his age group. Memory for Faces (25) is less than the 5th percentile for his age group. Visual Form Discrimination Test (VFDT) Patient's score (30) is less than the mean score for his age group. Page 11 Benton Visual Retention Test (VRT) Patient's score (3) is five (5) points below his expected score (8) for his age group which is a strong indication of impairment of cognitive functioning involving memory. (Jt. Ex. A192) There is also the additional opinion of Dr. Hairston. He opined that claimant suffered from anxiety and depression (Ex. A212). Also, there is the written report of Steven B. Bisbing, Ph.D., J.D. He rendered the following opinion in his report of November 6, 1990. Dr. Bisbing wrote his report without the bene fit of even one examination of claimant. His opinion does not carry as much weight. He wrote that: FINDING 2: Mr. Thayer's neuropsychological complaints are exaggerated; neither serious or likely permanent and demonstrating continuous resolution. When Mr. Thayer's complaints are compared with evidence indicating his actual functioning it is clear that he [sic] functioning far better that [sic] he theoreti cally should be. This contradiction suggests, at the very least, that his complaints are exaggerated; not serious nor likely permanent. There is objective evi dence that his hearing and wrist problems demonstrate residual impairment. However, there is no evidence that either problem is so serious as to cause him to alter his lifestyle or even forgo activities that he has enjoyed in the past. For example, despite state ments by Dr. [sic] Butler and Keane that either the claimant could not or should not engage in heavy lift ing and strenuous physical labor, Mr. Thayer has gone ahead and done so for a significant amount of time. Clearly, while there may be some permanent impairment to each of these injuries they are not serious or debilitating. As for Mr. Thayer's neuropsychological complaints, he has complained of numerous problems with his memory, equilibrium, headaches, vision, gait, thought process and other functions from time to time. However, when these complaints are matched up with the various evi dence of his actual functioning it appears that these complaints are also a lot less serious that [sic] what is being claimed. The most recent and clear example of this contradiction is the conclusion by Dr. Korn in December 1989 that Mr. Thayer is totally disabled and likely to require intermediate care for the rest of his Page 12 life. Only six months before Dr. Korn's examination, Mr. Thayer was aggressively looking into new job oppor tunities. What is more, in May 1990 (6 months after Dr. Korn's conclusion), Dr. Butler concluded that Mr. Thayer was also fit for reentry into the competitive job market. (Jt. Ex. A-60) The opinion of Dr. Durward has been discussed previously. The undersigned need not address his opinions again. There is the opinion of James L. Case, M.D., a neurologist who prescribed various medications for claimant during the course of his treatment. Dr. Case opined the following relative to claimant's condition: IMPRESSION: 1. Postconcussion syndrome characterized by headaches, positional dizziness, memory loss, left anosmia, and left hearing impairment. These deficits appear to be permanent but nonprogressive. 2. Headache characteristics suggest they are of a vascular nature. Exam suggests no progressive intracranial pathology, and his 12/87 repeat CT scan is also reassuring in this regard. 3. Apparently nonsteroidals, tricyclics, and beta blockers have not been tried previously. (Jt. Ex. A190) The neurologist recommended participating in the local Iowa Head Injury Foundation (Jt. Ex. A191). He too opined that claimant's condition was permanent. All in all, this deputy concludes that equal weight is to be given to the two opinions of the neuropsychologists. They are given equal consideration since neither one is board certified in neuropsychology and since each one has vast experiences. They are both well respected. Dr. Durward and Dr. Case are also given equal weight with respect to their opinions. Both doctors deem claimant's condi tion as permanent. Dr. Jones too is given the same weight. Dr. Butler's opinion is given great weight. Less weight is given to the opinion of Dr. Harrison as he has little expertise in neuropsychology. Little weight is given to the opinion of Dr. Bisbing as he has never examined claimant nor has Bisbing conferred with him. Dr. Bisbing's opinion is based on second hand information. He has gathered no independent information. The evidence is overwhelming. Claimant is functionally impaired. The degree of functional impairment is somewhere Page 13 greater than slight but less than total impairment. Claimant is capable of engaging in some type of gainful employment. Previously, he had worked at his former position for months following his fall. Claimant's supervisor has testified that subsequent to the work injury, claimant engaged in his regu lar duties of welding, cutting iron, using the band saw and oper ating an iron worker (Tr. A, p. 247). Mr. Reinert has testified that claimant was a good and dependable worker both before and after the fall. According to Mr. Reinert's testimony "Bob had good quality of work." (Tr. p. 258, l. 11). William Post, a co-employee, has testified that claimant was able to follow direc tions on the job. Mr. Reinert has testified that claimant was able to drive solo to and from Dubuque on company business despite Mrs. Thayer's claim that claimant is not a reliable driver and thus unemployable. Claimant, however, has demonstrated the contrary through the Iowa State Department of Vocational Rehabilitation. He has taken a mini training session in driving abilities. He has passed the exam without any problems. It is quite apparent to the undersigned that if claimant had been experiencing so many difficulties with driving, Mrs. Thayer would not permit her two small children to ride with claimant while he was driving a vehicle. During the day, and while he is babysitting, claimant drives the children around the Storm Lake area. There is medical evidence in the record that claimant is capable of handling truck driving and a fork lift operation. The undersigned is in agreement. Claimant's argument that he is incapable of handling a vehicle is without merit. Claimant also alleges that he is unemployable because he is unable to count change. The undersigned determines that claimant is broadly overstating his deficits when he argues he cannot add money. During direct examination, Mr. McCullough handed claimant change and asked claimant to count it back. After five minutes or so, claimant was unable to do so. This deputy is unimpressed with the theatrics presented to her. What is much more persua sive is the fact that upon his return to work, claimant had accepted checks from customers and made change when presented with cash. Claimant was also able to copy paper patterns after initial instruction. The aforementioned tasks were observed by lay people who witnessed no observable memory difficulties. Jo Weeces, a rehabilitation counselor for the State of Iowa, testified she did not know whether claimant was employable (Tr. p. 187). However, during the time she was assisting claimant, she had no knowledge that claimant had worked subsequent to his work injury. It is clear to this deputy that Ms. Weeces was not operating with all of the data necessary to render an opinion of employability. Therefore, her expert opinion must be accorded less weight than if she had had all of the available information. Page 14 The undersigned recognizes that claimant's academic perfor mance is less than average. He graduated very near the bottom of his class. He is probably not suitable for college level train ing. However, he is not as dull as claimant would have this deputy believe. Claimant can follow simple directions, he can make patterns, read lists and road signs and read the newspaper. Claimant may not return to welding. Some jobs are outside of his restrictions. He is not precluded from employment. So long as he keeps within his restrictions, he is able to engage in such physical labor as janitorial work, some lawn care operations, light truck driving, package delivery, conservation work, parts attendant, and sales work. These positions pay approximately the same rate which he had earned as a welder or they are lesser paid positions. Nevertheless, there is gainful employment which is available to claimant. Claimant is a young man. He is pleasant. His appearance is neat. He is capable of engaging in productive employment. However, it appears that claimant is willing to sit back. There is no question in this deputy's mind that claimant is leaning on his wife for all types of support and care. Claimant and his spouse can benefit from a support group or from counseling. Participation in the Iowa Head Injury Foundation is urged. It is disheartening to the undersigned to see someone like claimant just give up on life. Claimant needs encouragement to return to the working world. He has not been overly motivated. In light of all of the foregoing, it is the determination of the undersigned that claimant is entitled to a 60 percent per manent partial disability. He is entitled to 300 weeks of bene fits at the stipulated rate of $197.76 per week. The commencement date for the payment of weekly benefits is the second issue to discuss in this case. It is difficult to discern when claimant actually reached maximum medical improve ment. His treating surgeon, Dr. Butler, provided several dates on which claimant received maximum medical improvement. It is the determination that claimant reached maximum medical improve ment on May 9, 1989. On that date claimant was able to return to work with restrictions and from that point on claimant was able and did participate in vocational rehabilitation. Claimant's permanent partial disability commences from May 10, 1989. The final issue before this deputy is whether defendants are liable for the expenses of Thomas Korn, Ph.D. Dr. Korn has sup plied the following itemization of his charges: Attached is my neuropsychological consultation report on Robert Thayer. Please review the report carefully, if there are any points in the report which you feel need additional explanation to improve their clarity please call me and I will take appropriate action. My intention is to provide referring sources with as Page 15 explicit reports as I am able. Billing in the above case is as follows: 11/29/89 Observation, interview and neuro- psychological consultation 7.0 hours @ $85.00/hr = $595.00 Consumable fee = 30.00 12/7-12/89 Scoring, interpretation, research and report preparation 5.25 hours @ $85.00/hr = 446.25 Total $1,071.25 (Claimant's Ex. F) Dr. Korn was retained by claimant as an expert witness. The psychologist was not hired to treat claimant. Nor was the psy chologist authorized by defendants to treat claimant. Dr. Korn evaluated claimant prior to the exam conducted by Dr. Sherrets. Dr. Korn's expenses cannot be assessed to defendants pursuant to section 85.39. Section 85.39 permits an employee to be reimbursed for sub sequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subse quent examination. Defendants are responsible only for reasonable fees associ ated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defen dants are obligated to reimburse claimant for independent medical examination. McSpadden, 288 N.W.2d 181 (Iowa 1980). It is the determination of the undersigned that defendants are liable for the expenses of Dr. Korn in the amount of $150.00 per day as governed by section 622.72. That section provides: 622.72 Expert witnesses -- fee. Witnesses called to testify only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examina tions and state the result thereof, shall receive addi tional compensation, to be fixed by the court, with reference to the value of the time employed and the degree of learning or skill required; but such addi tional compensation shall not exceed one hundred fifty dollars per day while so employed. Page 16 Defendants are liable for witness fees for Dr. Korn at the rate of $150.00 per day. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant three hundred (300) weeks of permanent partial disability benefits commencing on May 10, 1989 at the stipulated rate of one hundred ninety-seven and 76/l00 dollars ($197.76) per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pur suant to rule 343 IAC 4.33. Defendants shall receive credit for all benefits previously paid. Costs are taxed to defendants including but not limited to the expenses of Dr. Korn as aforementioned. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of September, 1992. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jay P. Roberts Mr. John R. Walker, Jr. Attorneys at Law 620 LaFayette Street P O Box 178 Waterloo, Iowa 50704 Mr. Charles T. Patterson Mr. Thomas M. Plaza Attorneys at Law 701 Pierce Street STE 200 P O Box 3086 Sioux City, Iowa 51102 Mr. Colin J. McCullough 701 West Main Street P O Box 428 Sac City, IA 50583 1803 Filed September 28, 1992 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT J. THAYER, : : Claimant, : : vs. : : File No. 836037 MICHAEL REINERT, d/b/a OLSEN : WELDING & MACHINE, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GRINNELL MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant was awarded a 60 percent permanent partial disability. Claimant was hit on the head by a falling board while he was working on scaffolding. Approximately 45 minutes later, claimant walked off the scaffolding. He sustained a closed head injury, a rub fracture, and a left wrist fracture which necessitated surgery. Claimant remained off work for a period of time. He returned to his former position as a welder after three months. Claimant worked in that capacity for many months. Later claimant left the job because of left wrist and arm pain. An orthopedic surgeon performed a second surgery on the left arm. Claimant never returned to work. He alleged that his closed head injury affected him so much that he was unable to work in any capacity. There were disparate opinions from experts, but all agreed claimant had sustained a closed head injury. Their differences dealt with the degree of severity. This deputy held that claimant is entitled to a 60 percent permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROGER O. BROWN, : : Claimant, : : vs. : File Nos. 836538 CEDAR RAPIDS MEATS, INC., : d/b/a FARMSTEAD FOODS & WILSON: FOOD COMPANY, : : Employer, : A R B I T R A T I O N : and : D E C I S I O N : EMPLOYERS MUTUAL INS. CO., : : Insurance Carrier, : : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Roger Brown, claimant, against the Second Injury Fund, a special fund administered by the Treasurer of the State of Iowa, defendant, for workers' compensation benefits as a result of an alleged second injury on October 1, 1986. In his petition, claimant alleges a prior impairment to have oc curred as a result of an injury in 1978. On May 31, 1991, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and ac cepted as a part of the record of this case at the time of the hearing. The oral testimony and written exhibits re ceived during the hearing are set forth in the hearing tran script. Page 2 According to the prehearing report, the parties have stipulated to the following matters: 1. If permanent disability benefits are awarded, they shall begin as of March 7, 1987. 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $236.24. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of his employment on October 1, 1986. 2. The extent of claimant's entitlement to permanent disability benefits from the Second Injury Fund. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as the Second Injury Fund placed claimant's credibility at issue during cross-examination. From his demeanor while testifying, claimant is found credible. Claimant was employed by Cedar Rapids Meats d/b/a Farmstead Foods and its predecessor company, Wilson Foods Company (both hereinafter referred to as Farmstead) from 1962 until March 1990, when the meat packing plant where claimant was working closed due to bankruptcy. At all times during this employment, claimant was performing manual labor work in various departments at the packing plant. Initially, claimant was assigned to belly vats where he stuffed meat into forms and hung the meat on a "tree." Although the weights in this job were light, claimant worked repetitively in a moist, cool environment. After a few months, claimant was assigned to beef sides and he performed this work for almost thirteen years. This work involved heavy lifting of meat and cans and pushing and pulling of animal carcasses. From 1975 until the plant closed in 1990, claimant was assigned to a job called scaler/packer in which he would lift boxes full of meat off a skid or roller conveyor and stack these boxes on a pallet located opposite the skid. The boxes weighed from 25 to 75 pounds each and claimant would handle 600 to 700 boxes each day. Claimant also was required to manually drag the pallets to his work area. This job was stressful on claimant's legs. It was while performing this job that claimant suffered two leg injuries upon which the fund claim is based. Claimant's testimony with reference to all the above matters was credi ble and uncontroverted. On or about October 1, 1986, claimant suffered an injury to his right leg which arose out of and in the course Page 3 of his employment with Farmstead. This injury was the result of repetitive cumulative trauma or overuse of his right leg in his work at Farmstead. This occurred gradually over a long period time and primarily when claimant was working as a scaler/packer. This injury consisted of an ac celeration of a degenerative disease of the knee which even tually required a partial knee replacement or arthroplasty in October 1986. These findings are based upon the uncon troverted views of the primary orthopedic surgeon, Hugh P. MacMenamin, M.D., who performed the partial knee replacement (Exhibit 1, pp. 44-45). Following the right knee arthroplasty, claimant suffered from a 25 percent permanent partial impairment to the right lower extremity. This find ing is again based upon the uncontroverted views of Dr. MacMenamin. At the time of the injury of October 1, 1986, claimant had previously suffered a 25 percent permanent partial im pairment to the left lower extremity due to his work at Farmstead. As a cumulative result of work traumas, claimant in 1978 was compelled to have a partial replacement of his left knee. Again, these findings are based upon the uncon troverted views of Dr. MacMenamin that the bilateral knee problems are work related due to cumulative trauma or overuse syndrome which aggravated a preexisting condition. In dispute was whether claimant's bilateral problems developed simultaneously or at different times. Dr. MacMenamin, on page 44 of exhibit 1, answered in the affir mative to a question whether he would agree that claimant's bilateral knee problems were "developing simultaneously but yet could and did manifest themselves at different occasions." The undersigned would agree that between 1968 and 1986, claimant had recurring bilateral knee problems according to the records of his orthopedic surgeons in exhibit 1. In 1963, he was off approximately six weeks following surgical repair of a torn meniscus of the right knee when he slipped on stairs at work. In 1964, a hog fell on his legs and he was off work for exploratory surgery to the left knee. In November 1985, claimant was placed on light duty for acute pain in the right knee. In 1969, he twisted his knee (the records do not indicate which knee). In 1970, claimant suffered from a recurrent effusion of the left knee. In 1971, claimant was off work for two months following surgery to clean out the right knee. In 1975, claimant again had left knee problems requiring aspiration and injection of steroid medication. However, it is clear that permanent impairment occurred as a result of claimant's prior separate and distinct knee surgery in 1978. Although no physician has given an impair ment rating for this earlier partial knee replacement, this was the same surgery that was performed by Dr. MacMenamin in October 1986, for which the doctor gave a 25 percent permanent partial impairment rating. There is nothing in the evidence to suggest that the 1978 surgery was any more or less successful than the 1986 surgery. Therefore, the same amount of impairment is found for both separate surgeries. It also should be noted that claimant's permanent partial impairment to the left leg probably Page 4 occurred even earlier. Although claimant injured both legs in the incident in 1964, he was primarily treated for left knee problems and his physicians at the time advised claimant that he should obtain a job where he would not be on his feet too much, if possible (Exhibit 1, page 3). Over the years, claimant has had prior carpal tunnel syndrome and ulnar nerve compression problems as well as back problems. However, the evidence indicates that he suffered no permanent partial impairment as a result of these problems or from treatment of these problems. As a result of the prior and separate permanent partial impairment of 1978 and the second work-related injury of October 1, 1986, claimant has suffered a 30 percent loss of earning capacity. Although there is no formal work restrictions in effect at this time, claimant is unable to perform heavy work using his leg without adversely affecting his knee replacements. His physicians have stated that the life of a knee replacement is dependent upon the amount of its use. Heavy use will result in a much shorter life of the replacement. In the event the knee replacement has to be repaired, the knee may have to be fused. Claimant's past employment primarily consists of driv ing a dump or straight truck, cement construction and wood working which included truck loading. Claimant has also had a history of farm labor work. Except for truck driving, claimant is unable to perform much of his former work today. Since the Farmstead closure, claimant has been mostly unem ployed. The local adverse labor market significantly contributed to claimant's inability to find suitable work. Claimant received training as an over-the-road semi- truck driver after leaving Farmstead and obtained a job as a company driver earning 16 to 18 cents per mile. Claimant quit this job after only a few months as he did not like being away from his family for extended periods of time. Since that time, claimant has worked intermittently as a fertilizer and dump truck driver. Claimant is employable as a truck driver but needs a job that fits into his desire for a stable family life. Claimant is working at the present time from 30 to 50 hours per week depending upon the weather and work availability. Claimant is earning $5 per hour in his part-time work but has no fringe benefits. Claimant was earning $9.20 per hour with fringe benefits at the time of the Farmstead closure. The finding of a loss of earning capacity in this case was made without consideration of the alleged second injury in 1988. That injury involves a surgical replacement of the left knee arthroplasty that was installed in 1978. This injury is subject to a pending workers' compensation claim against the Second Injury Fund that was not consolidated with this proceeding. conclusions of law I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an Page 5 injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). It the case sub judice, the October 1, 1986 injury was found to be a work-related aggravation of a preexisting condition due to overuse of his legs while working at Farmstead. II. Claimant seeks additional disability benefits from the Second Injury Fund under Iowa Code sections 85.63 through 85.69. This fund was created to compensate an injured worker for a permanent industrial disability result ing from the combined effect of two separate injuries. The purpose of such a scheme of compensation was to encourage employers to hire or retain handicapped workers and veterans. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (1978). There are three requirements under the statute to invoke Second Injury Fund liability. First, there must be a permanent loss or loss of use of one hand, arm, foot, leg or eye. Secondly, there must be a permanent loss or loss of use of another such member or organ through a compensable subsequent injury. Third, there must be perma nent industrial disability to the body as a whole arising from both the first and second injuries which is greater in terms of relative weeks of compensation and the sum of the scheduled allowances for those injuries. If there is a greater industrial disability due to the combined effects of the prior loss and the second loss than equals the value of the prior and second losses combined, then the fund will be charged with the difference. The Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). In the case sub judice, it was found that claimant suffered a 25 percent permanent partial impairment to the right leg as a result of the compensable injury of October 1, 1986. On October 1, 1986, it was found that claimant had suffered from a prior 25 percent permanent partial impair ment to the left leg due to an injury and surgery in 1978. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Page 6 Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). Therefore, based upon the findings of permanent partial impairment to both legs, claimant's permanent partial dis ability as a result of the compensable injury of October 1, 1986, and of the prior 1978 injury, is equivalent to 55 weeks of benefits for each injury under Iowa Code section 85.34(2)(o) which is 25 percent of 220 weeks, the maximal allowable number of weeks for an injury to the leg in that subsection. Turning to the assessment of industrial disability as a result of both qualifying injuries, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In this case, it was found that the combined effect or industrial disability from the first and second injuries resulted in a 30 percent loss of earning capacity. Based upon such a finding, claimant is entitled as a matter of law Page 7 to 150 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u), which is 30 percent of 500 weeks, the maximum allowable for an injury to the body as a whole. The fund is liable for the remaining amount of this disability after first deducting 110 weeks of permanent partial disability caused by the first and second injuries. This remaining 40 weeks shall begin, as stipulated by the parties, on March 7, 1987. Interest on this award shall be begin on the date of this decision. Second Injury Fund v. Braden, 459 N.W.2d 467 (Iowa 1990). With reference to taxation of costs, although awarded to claimant, the listing of claimant in exhibit 4 is unspe cific as to what many of these expenses represent. The undersigned directs the parties to read the administrative rule on reimbursable costs as it is quite specific. If the parties cannot agree, they may submit a request for specific taxation of costs along with proper documentation. Page 8 order THEREFORE, it is ordered: 1. The Second Injury Fund shall pay to claimant forty (40) weeks of permanent partial disability benefits at the rate of two hundred thirty-six and 24/100 dollars ($236.24) per week from March 7, 1987. 2. The Second Injury fund shall pay accrued weekly benefits in a lump sum. 3. The Second Injury Fund shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30 from the date of this decision. 4. The Second Injury Fund shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimburse ment to claimant for any filing fee paid in this matter. 5. The Second Injury Fund shall file activity reports upon payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this _____ day of June, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr James E Shipman Mr Matthew J Brandes Attorneys at Law 1200 MNB Bldg Cedar Rapids IA 52401 Mr John Bickel Attorney at Law 500 MNB Bldg P O Box 2107 Cedar Rapids IA 52406 Mr Greg Knoploh Assistant Attorney General Tort Claims Hoover State Office Bldg Des Moines IA 50319 5-1803 Filed June 27, 1991 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : ROGER O. BROWN, : : Claimant, : : vs. : File Nos. 836538 CEDAR RAPIDS MEATS, INC., : d/b/a FARMSTEAD FOODS & WILSON: FOOD COMPANY, : : Employer, : A R B I T R A T I O N : and : D E C I S I O N : EMPLOYERS MUTUAL INS. CO., : : Insurance Carrier, : : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 5-1803 Extent of disability benefits nonprecedential. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROSEMARY BENNETT, Claimant, File No. 836561 vs. A R B I T R A T I O N MERCY HOSPITAL MEDICAL CENTER, D E C I S I O N Employer, and F I L E D AETNA CASUALTY & SURETY APR 18 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. INTRODUCTION This is a proceeding in arbitration brought by Rosemary Bennett, claimant, against her employer, Mercy Hospital Medical Center, and Aetna Casualty & Surety Company, insurance carrier, defendants. The case was heard by the undersigned on September 22, 1988 in the conference room at the Division of Industrial Services. The case was fully submitted at the close of the hearing. The record consists of the testimony of claimant. The record also consists of the testimony of Kurtis Bennett, husband of claimant. Testifying for defendants are Jeri Fontanini, supervisor, and Nancy DeVore, workers' compensation coordinator at defendant employer. The record also consists of Joint Exhibits A-K, and N. Pursuant to the prehearing report and order approving the same, which was filed on September 22, 1988, the parties stipulate: l) The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2) That claimant sustained an injury on December 20, 1985, which arose out of and.in the course of employment with employer; and, 3) That the injury is not a cause of permanent disability. ISSUES The issues presented are as follows: l) Whether claimant is able to designate February 23, July 14 and October 23, 1987, as days where she was off work because of her workers' compensation injury on December 20, 1985; and, 2) Whether claimant is entitled to medical benefits under section 85.27, other than treatment from William R. Boulden, M.D. FACTS PRESENTED Claimant has been employed as a ward secretary for defendant employer. On December 20, 1985, claimant attempted to sit in a chair reserved for one of the ward secretaries. Claimant testified there was a slip of paper lying on the floor. As claimant attempted to sit down, she slipped on the sheet of paper and slid onto the floor. Claimant fell onto her buttocks. She picked herself up and commenced working at that station. According to claimant, the entire incident was witnessed by her supervisor. Claimant had been scheduled for her vacation at the time of the above incident. After two weeks away from work, she returned to her duties. Upon her return, claimant was treated for lower back pain at the employee health clinic. Medical records indicate the first visit occurred on January 9, 1986. Claimant returned to thE clinic on January 22, 1986. Claimant again sought attention in June of 1986. Claimant's medical records for June 2, 1986 indicate: "Relates upper lumbar-lowest thoracic constantly since January episode. Uses Nupain /c little relief, heat relieves...." Claimant continued with treatment through the employee health clinic. She received physical therapy and hot packs. Her physicians prescribed various kinds of pain medication. Claimant was eventually seen by William R. Boulden, M.D. In his report of November 11, 1986, Dr. Boulden writes: The patient's complaints of pain are always in the back. She states that sitting really aggravates her symptoms to the most. Physical examination today shows the patient to have full left and right lateral bending, extension and forward flexion. Straight leg raising is negative bilaterally. Deep tendon reflexes are equal and symmetrical in the knees and ankles. No motor weakness. No sensory deficit. Lumbar spine films from January of 1986 and November, today, do not show any interval changes, and show just some osteoporosis. There are really mild arthritic changes. Impression: Low back pain, etiology undetermined. In January of 1987, Dr. Boulden recommended an evaluation for a pain center. He was not sure whether claimant would be interested in such a treatment. James A. Frahm, M.D., then referred claimant to Sinesio Misol, M.D. After he examined claimant on April 8, 1987, he diagnosed claimant as follows: MRI seen by me are within normal limits. Bone scan apparently also performed, reported as negative. Post strain dorsolumbar junction, after a fall. No evidence of disc herniation or fracture pathology. Claimant testified she continued to experience difficulties subsequent to the date of her injury. As a result, claimant missed several days of work. From July 3, 1986 until February 23, 1987, claimant missed five days of work. These days were all paid to claimant as workers' compensation days. Claimant also testified she missed work on February 23, 1987, July 14, 1987, and October 23, 1987. She did not obtain a doctor's excuse for each of those three days. Claimant was paid sick leave for those days. The days were not allocated to workers' compensation. There is a policy at defendant employer's place of business regarding sick leave and absenteeism. Employees are allowed only a predetermined number of absences in a three month period. If an employee exceeds that number, the employee is counseled or disciplined in a progressive manner. Testimony during the hearing revealed that claimant was counseled by her supervisor, Jeri Fontanini and the department head, Linda Lundgren on January 7, 1988. There was written documentation detailing the counseling session. According to the written documentation, claimant was advised that: REASON FOR COUNSELING/FOLLOW-UP (BE SPECIFIC: DATES, TIMES, ETC.) Attendance.- Sick Feb. 23, Sick March 12-27, Sick July 14, Sick Oct 23, Sick Dec 21-Jan 1, SPECIFIC ACTION TO BE TAKEN & FOLLOW-UP DATE Rosemary will be required to submit a doctors written statement to employee Health Service for any future illness in the next 3 mo. CONSEQUENCES OF CONTINUED LACK OF IMPROVEMENT If Rosemary has another sick occurrence in the next 3 mo. She will be reprimanded. Claimant testified she wanted time off from work to continue with physical therapy sessions. She stated she could not have the time off or else that time would result in an occurrence under the sick leave policy. Jeri Fontanini also testified at the hearing. She reported claimant was an excellent employee and claimant was in no danger of being terminated. Ms. Fontanini stated claimant had had several occurrences under the absentee policy but they were removed from her record. Ms. Fontanini testified that with respect to the three days in question, claimant failed to bring a doctor's excuse and she neglected to mention that the three days were related to her injury on December 20, 1985. Ms. Nancy DeVore testified for defendants. She reported she is the coordinator for workers' compensation benefits at defendant employer. She stated that the employee health clinic is open for one hour per day and that employees with workers' compensation complaints are sent to the health clinic. Referrals from the clinic are then made to the appropriate physicians. Ms. DeVore testified that claimant was referred to Dr. Boulden by the employee health clinic because of Dr. Boulden's expertise in back care. Ms. DeVore indicated that an absence allocated to a workers' compensation injury is not "an occurrence" under the sick leave and absentee policy. Finally, Ms. DeVore testified that claimant is able to schedule time off for physical therapy sessions so long as she schedules the sessions and provides at least a one hour notice. APPLICABLE LAW AND ANALYSIS The claimant must prove by a preponderance of the evidence that her injury arose out of and in the course of her employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove her injury occurred at a place where she reasonably may be performing her duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of December 20, 1985 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). Claimant maintained three days missed in calendar year 1987 were days where she should have been credited with days missed due to her work injury on December 20, 1985. Claimant's testimony revealed she missed work because of back pain on February 23, 1987, July 14, 1987, and October 23, 1987. Claimant stated she did not consult a medical practitioner on any of the three occasions. However, claimant did testify that she had no history of back pain prior to her fall on December 20, 1985. There was no testimony in the record that claimant was off work for any reason other than for her back. Therefore, it is the determination of the undersigned that these days are determined to be causally related to her injury of December 20, 1985. Benefits for these three days fall under temporary total disability benefits as provided in section 85.33. The next issue to address is whether claimant is entitled to alternate care under section 85.27. This section provides in relevant part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. ... For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. Under section 85.27, the employer has the right to select the medical care. The care must be offered promptly and without undue inconvenience to the employee. England v. Western Materials, Inc., Thirty-Second Biennial Report of the Iowa Industrial Commissioner 201 (1974). The medical care under section 85.27 must also be reasonable. Shilling v. Martin K. Eby Construction, Co., Inc., II Iowa Industrial Commissioner Report 350 (Appeal Decision 1981). In the case at hand, claimant maintained she was dissatisfied with the treatment provided by Dr. Boulden. Nevertheless, claimant did not established that Dr. Boulden's treatment was unreasonable. Dr. Boulden is an orthopedic surgeon. He has expertise in back care. He has recommended conservative treatment and possible treatment at a pain center. None of these recommendations seem unreasonable in light of the circumstances of this case. Additionally, the treatment recommended by Dr. Boulden is not that different from the treatment recommended by Sinesio Misol, M.D. As a consequence, employer is not required to provide an alternate physician. The claimant has asserted problems with attending physical therapy sessions for her back during work hours. Defendants, during the hearing, presented testimony that physical therapy sessions for claimant's back would be logged as time off due to her work injury. These sessions would not result in any disciplinary action so long as claimant provided at least a one hour notice of the same. The issue now appears to be moot. As a final note, claimant requested treatment at the Mercy Pain Center. Claimant's physician, Dr. Boulden, recommended an evaluation for the same. Dr; Boulden is the authorized treating physician. If it is his opinion that an evaluation and treatment at a pain center is a proper mode of treatment for claimant, then defendants are responsible for those reasonable and necessary expenses. Defendants cannot invade the province of medical professionals and determine what diagnostic tests and/or methods of treatment are to be utilized. Pote v. Mickow Corp., File No. 694639 (Review-reopening Decision, Filed June 17, 1986); Martin v. Armour Dial, Inc., File No. 754732 (Arbitration Decision, Filed July 31, 1985). FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously cited, the following findings of fact and conclusions of law are made: FINDING 1. As a result of claimant's work related injury on December 20, 1985, she sustained temporary injuries to her back. Finding 2. As a result of her work injury, claimant missed eight days of work, five days between July 3, 1986 and February 23, 1987, and also, February 23, 1987, July 14, 1987 and October 23, 1987. CONCLUSION 1. Claimant is entitled to 1.143 weeks of temporary total disability benefits at the stipulated rate of $186.12 per week. FINDING 3. Defendants have authorized Dr. Boulden as a treating physician. Finding 4. The treatment provided by Dr. Boulden has been reasonable and necessary. CONCLUSION 2. Defendants are liable for reasonable and necessary medical treatment which may include, but is not limited to future treatment at a pain center, if recommended by Dr. Boulden, the authorized treating physician. FINDING 5. Dr. Misol is not an authorized treating physician. ORDER THEREFORE, defendants are to pay unto claimant one point one-four-three (1.143) weeks of temporary total disability benefits at a rate of one hundred eighty-six and 12/100 dollars ($186.12) per week. Defendants are to pay future reasonable and necessary medical expenses related to the claimant's back, including but not limited to, the expenses incidental to treatment at a pain center, if so deemed by an authorized treating physician. Accrued benefits are to be made in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Code of Iowa, as amended. Defendants shall receive credit for all benefits paid. Costs of this action are assessed against the defendants pursuant to Division of Industrial Services Rule 343-4.33.. Defendants shall file a claim activity report upon payment to this award. Signed and filed this 18th day of April, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Lee H. Gaudineer Attorney at Law 900 Des Moines Bldg. Des Moines, Iowa 50309 Ms. Lorraine J. May Mr. Glenn Goodwin Attorneys at Law 4th Floor Equitable Bldg. Des Moines, Iowa 50309 51402.60 Filed April 18, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROSEMARY BENNETT, Claimant, File No. 836561 vs. A R B I T R A T I O N MERCY HOSPITAL MEDICAL CENTER, D E C I S I O N Employer, and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 51402.60 Claimant sustained a back injury on the job. Claimant could not sustain burden of proof that medical treatment she was receiving was unreasonable and that alternate care was reasonable.