Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA K. KIRKBRIDE, : : Claimant, : : vs. : : File No. 847423 WELLBORN INDUSTRIES, LTD., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : USF&G, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Donna K. Kirkbride, claimant, against Wellborn Industries, Ltd., employer, and United States Fidelity & Guarantee Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on March 10, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner on April 15, 1991. The matter was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Donna Kirkbride, Kathryn Schrot, Jerry Lattimer and Rick Jorgenson; and joint exhibits 1-42 and A. issues Pursuant to the prehearing report and order submitted and approved April 15, 1991, the following issues are presented for resolution: 1. The extent of claimant's entitlement to permanent partial disability benefits stipulated to be an industrial disability to the body as a whole; and, 2. The applicability of the odd-lot doctrine. Defendants assert the defense of unreasonable refusal to undergo medical treatment. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made and the evidence contained in the exhibits, and makes the following findings. Page 2 The parties did not dispute that claimant sustained an injury on March 10, 1987, which arose out of and in the course of employment with employer. The parties also agreed that claimant's injury is a cause of temporary and permanent disability. Defendants have paid claimant healing period benefits from March 10, 1987 through February 12, 1989 and from June 5, 1989 through January 11, 1990, as well as permanent partial disability benefits from February 13, 1989 through June 4, 1989. The extent of entitlement to weekly compensation for permanent disability is disputed. Claimant was born on October 11, 1954 and completed the ninth grade of school. She received her GED certificate on May 27, 1989, during the course of vocational rehabilitation efforts. Prior to working at Wellborn Industries, claimant worked as a cashier, salesperson and parts tester. On October 3, 1986, she commenced employment at Wellborn as a circuit board tester. On March 10, 1987, she was pulled off her regular job and put in the shipping department. On that day, she was packaging circuit boards when some of the boards on the second shelf fell, landing on the top of her left foot. There is a conflict in the record as to the actual weight of these boards. Mr. Lattimer, Human Resource Director at Wellborn, testified that the boards weighed one pound at most while claimant testified that a 50 pound stack of boards fell on her foot. In any event, she testified she had immediate pain in her foot with some swelling but continued working. The next day she had increased pain, discomfort and swelling and saw Tim Mead, M.D., an orthopedist at Park Clinic in Mason City, Iowa. Dr. Mead took x-rays which were negative. He diagnosed deep contusions and advised her to elevate the foot and apply ice. She was off work for a few days and returned to work on Friday. She continued to have marked pain and returned to Dr. Mead's office where she saw Mike Crane, M.D., his orthopedic partner. Dr. Crane reviewed the x-rays and assured her that the swelling would gradually resolve and suggested that she return to work on Monday. However, the pain and discomfort increased and she recontacted Dr. Crane and was begun on a two week physical therapy program, with improvement in her condition. She returned to work but again had an increase of pain. On her own, she decided to see Dr. Steve Brau, a podiatrist, who diagnosed a "sympathetic syndrome." He injected her foot and ankle with some improvement of her symptoms but no relief of pain. Pain and swelling in her foot was so severe she required crutches in order to ambulate. She then began noting pain going up her leg from the foot and Dr. Crane referred her to Sterling J. Laaveg, M.D., an orthopedic surgeon. Dr. Laaveg initially saw claimant on May 12, 1987. On examination, he noted objective findings of a cool foot, dysesthetic sensations, mottled skin appearance and slight decreased motion of the foot and ankle joints. Follow-up evaluations revealed persistent and significant pain and discomfort in the left foot and ankle and claimant was referred to his associate, T. A. Thomsen, M.D., for further evaluation. Both physicians recommended a lumbar sympathectomy. This was performed on March 7, 1988 (Exhibits 1-4, 5 & 8). Page 3 In addition to pain and discomfort in her left foot and ankle, claimant developed a trochanteric bursitis of the left hip secondary to her limping gait. An x-ray of her left hip taken on October 26, 1987, revealed a spina bifida of the sacrum and L-5. She was treated at Mercy Hospital Medical Center Pain Clinic from September 2 through September 30, 1988. While at Mercy, she was seen by Dean VanSteenwyk, D.O., an orthopedist, who discussed the possibility of another lumbar sympathetic block and the fact that she had a failed previous sympathetic block and surgery which had distorted the anatomy in her left lower extremity, lowering her chance of success. She was also seen by Dr. Weatherwax regarding an orthopedic left foot and ankle examination. He diagnosed resolving sympathetic dystrophy of the left foot with well established pain pattern. He recommended intrinsic muscle exercises and an arch support. She was counseled as to diet and proper nutrition and strongly advised to cease smoking. At the end of the session, it was felt that she was significantly improved and that she could return to work restricted to a six hour day for two or three weeks and then reevaluated (Ex. 13). Due to increased hip pain, Dr. Laaveg approved claimant for physical therapy treatments from November 30 through December 12, 1988 (Ex. 15). On February 13, 1989, Dr. Laaveg reported that claimant had reached maximum healing. He gave her a final physical impairment rating of five percent of the lower extremity for her chronic rated trochanteric bursitis or two percent person as a whole and 30 percent of the lower extremity due to reflex sympathetic dystrophy with loss of motion of the ankle or a whole person rating of 12 percent. The combined whole person final physical impairment rating translated to 14 percent. She was also given work restrictions at this time limiting standing for more than 30 minutes and lifting more than 20 pounds. She was precluded from repetitious bending or twisting while in the standing position. She was released to return to part-time employment, no more than four hours per day, gradually to increase as tolerated (Ex. 16). Claimant then made application to the industrial commis sioner for examination by John R. Walker, M.D. The application was approved on April 17, 1989, and the claimant was examined by Dr. Walker on May 15, 1989. After reviewing the claimant's medical history and noting her complaints, Dr. Walker conducted a physical examination and reviewed x-rays of the left hip, pelvis, lumbar spine and left lower extremity. He concluded that claimant has a trochanteric bursitis and recommended excision of the trochanteric bursa. He also concluded that the sympathectomy, although of some benefit, did not clear up all of her sympathetic problems, probably because of her underlying spina bifida occulta. He further noted that x-rays of the left patella were negative and x-rays of the tibia, fibula and ankle are within normal limits. Some irregular osteoporosis, mild to moderate, was evident in the left foot. The left tibia fibula was within Page 4 normal limits. Dr. Walker opined as follows: It is my opinion that this patient has a permanent, partial impairment of 25% of the body as a whole based on all of the diagnoses that are listed above. The congenital anomaly consisting of the spina bifida occulta has no part in this evaluation and as far as I am concerned, there is no true impairment or disability because of it in itself. (Ex. 19, page 7) Claimant was hospitalized at St. Joseph Mercy Hospital from June 5 through June 9, 1989. On June 5, she underwent excision of the greater trochanteric bursa (Ex. 21). On November 16, 1989, Dr. Laaveg referred claimant to the Occupational Medicine Clinic at St. Joseph Mercy Hospital for evaluation and a work conditioning program. Claimant presented with pain in the left lateral low back and left hip over the incision and pain in the left lower leg and foot. At the end of seven weeks of work conditioning/job simulation, she was discharged from the program on January 12, 1990, demonstrating significant progress including increased hip range of motion, left hip and upper extremities strength, cardiovascular endurance and improved tolerance for functional activities performed while sitting and standing (Ex. 23). During the course of pursuing social security disability benefits, claimant was referred by the Disability Determination Services to Sant M.S. Hayreh, M.D., neurologist, for evaluation on December 8, 1989. Dr. Hayreh reported, in pertinent part, as follows: On examination of lower extremities, she has mild tenderness on depalpation over the left foot and left leg. Otherwise, no obvious muscle tenderness was seen. Muscle tone and strength was normal in all groups of muscles, except mild diffuse give-away type of weakness in all groups of muscles in left lower extremity, especially left ankle dorso-flexion and plantar flexion. DTR's reflexes showed KJ 2/2, AJ 0/0; Plantar's response bilaterally flexor. Sensory examination was essentially normal to light touch, pin prick and vibration. The arterial pulses were normally palpable. Straight-leg raising sign was negative bilaterally. Lateral hip rotation was negative bilaterally. There was very minimal tenderness on decompression over the lower lumbar spine. She has a dimple at L5 level due to spina bifida. She walks with a cane and walks with a limp on the left side. She could walk on the toes and heels, but did not do Tandem walking for me. The Romberg sign was negative. She did not do any squatting or forward bending for me. Page 5 (Ex. 24, p. 2) Dr. Hayreh commented in his summary that the exact cause of the pain in her left foot is unclear and the etiology of the pain in her left hip is unclear because clinically she had no objective findings. He stated that she may have some difficulty performing activity requiring prolonged standing and walking (Ex. 24). A residual physical functional capacity assessment made by Gary J. Cromer, M.D., for the Social Security Administration notes that "considering objective findings and disproportionate symptomatology, light work as previously outlined not precluded." Dr. Cromer felt that based on the lack of significant neurologic impairment and exaggerated symptoms, claimant is capable of frequently lifting and carrying up to 10 pounds; standing and/or walking about six hours in an eight-hour work day; sitting (with normal breaks) for a total of six hours in an eight-hour work day; and, occasionally lifting and/or carrying up to 20 pounds. Dr. Cromer indicated that the limitations cited by physicians who have either treated or examined claimant appear to be based on subjective symptoms and are not supported by objective findings (Ex. 25). On January 11, 1990, Dr. Laaveg reported that claimant had reached maximum healing. He gave her a final physical impairment rating of 15 percent of the lower extremity which is a whole person rating of six percent and 30 percent of the hip which is a whole person rating of 12 percent. Her combined rating equaled 17 percent. In addition, Dr. Laaveg stated as follows: The patient should not be in a job in which she would lift or carry over 10 pounds other than occasionally. She should not be required to do prolonged sitting, prolonged standing or prolonged walking i.e. no longer than 60 minutes at any one position without being able to change position. She cannot work in cold environments. She should do no repetitious bending or twisting. She cannot climb or crawl. She cannot do repetitious activities with her feet. The patient is attend ing classes to obtain ability to work as a clerical person and I think this is reasonable. (Ex. 28) On February 5, 1990, Wellborn Industries presented to Dr. Laaveg a "pusher" job description in the Dry Film Department which takes into consideration the physical limitations imposed. Dr. Laaveg approved this position and advised that the claimant start at a four hour shift for two weeks and then slowly advance to an eight-hour day (Ex. 30). Claimant testified that she returned to work for two hours on April 23, 1990, and found that she could not tolerate the physical exertion required of a pusher. She went to see Dr. Laaveg and on April 27, 1990, he reported, without explanation, that claimant "is unable to return to Page 6 work" due to left hip bursitis and left leg sciatica (Ex. 32). On June 4, 1990, claimant was seen by David W. Beck, M.D., neurosurgeon, at the request of Dr. Hayreh. He reported that: On examination she has a somewhat atrophic left leg. She has weakness in plantar and dorsiflexion. The entire leg appears to be weak on exam, but it hurts her so much to test it I am not sure how much is effort related. Straight leg raising test is negative. She has a very antalgic gait. MRI scan is unremarkable except for the meningocele. There is no evidence of herniated disc. (Ex. 33) Dr. Beck opined that "I think Donna has a causalgic type pain which is quite miserable. I told her that my recommendation is a dorsal column stimulator....The dorsal column stimulation for causalgic type pain is very successful, and I encouraged her to do this. She has had some relief with a TENS unit." (Ex. 33) On June 28, 1990, claimant was seen at Mercy Hospital Nerve Block Center for evaluation regarding the feasibility of placement of a dorsal column stimulator for pain relief in the left lower extremity. She was examined by Dana L. Simon, M.D. Claimant presented with complaints of pain in the left lower extremity which she described as a constant aching, but not necessarily burning in all locations. She stated that her pain level is not very severe and she has learned to live with it. Dr. Simon opined that while claimant may be a reasonably good candidate for dorsal column stimulation, there remain several reservations. Dr. Simon stated that this decision is between claimant and Dr. Beck (Ex. 34). On June 6, 1990, claimant was examined by Dr. Ken B. Washburn. After reviewing the claimant's medical history and noting her complaints, Dr. Washburn conducted a physical examination and concluded that claimant has a 12 percent disability of the whole person secondary to reflex sympathetic dystrophy of the left foot, left hip bursitis and low back strain. Dr. Washburn commented that "it is rather unusual that the patient has not developed any osteoporosis of the left foot if she is only standing on the left foot for 10 minutes every day." He indicated that she could handle a job where she is allowed to alternate between sitting and standing (Ex. 35). On August 21, 1990, Dr. Laaveg reported that claimant had reached maximum healing and her final physical impairment rating is unchanged. He opined that claimant cannot return to work (Ex. 37). Page 7 Finally, it is noted that claimant worked in conjunction with Priscilla Waitek and Richard Jorgenson, rehabilitation specialists, from November 12, 1987 through August 21, 1990. Mr. Jorgenson testified that he accompanied claimant to Dr. Laaveg's office on August 21, 1990, and at that time, she told Dr. Laaveg she could not work any longer and he apparently agreed with her. He stated that it was his impression that the pusher job at Wellborn was always available to claimant on a flexible bases to accommodate her restrictions. He admitted, however, that it is possible claimant was not aware of this open-ended offer by Wellborn. Mr. Gerald Edward Lattimer, Human Resource Director at Wellborn, testified that the pusher job exists today and is available to claimant at $5.00 an hour plus $.50 an hour pay shift differential after 1:00 p.m. Kathryn Schrot, a rehabilitation consultant, also testified at the hearing. She stated she met with claimant on November 9, 1990, and reviewed all of the medical records in this case. It was her opinion that claimant is capable of finding but not sustaining employment. On cross-examination, she indicated that claimant could perform the pusher position if the job required sitting between 30 - 40 minutes at a time. She stated that claimant's ability to sustain work depends upon the amount of pain she encounters. She admitted she did not talk to claimant's employer and she was not aware of any unwillingness on their part to be flexible or to get claimant back to work. conclusions of law Since the parties do not dispute claimant sustained an injury which arose out of and in the course of her employment or that the injury is the cause of both temporary and permanent disability, it is necessary to consider only the issue of the extent of that permanent disability which would include the related issue of whether or not claimant is an odd-lot employee as contemplated by Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd- lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, edu cation, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such cases it should not be enough to show that claimant is Page 8 physically capable of performing light work and then round out the case for noncompensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co, 288 N.W.2d 181, 192 (Iowa 1980). The industrial commissioner has frequently held that a claimant must demonstrate a reasonable effort to secure employment in the area of his or her residence as part of a prima facie showing that he or she is an odd-lot employee. If a claimant has made no attempt to find work, then he cannot be determined to be an odd-lot employee. Emshoff v. Petroleum Transportation Services, Inc., file number 753723 (Appeal Decision March 31, 1987); Collins v. Friendship Village, Inc., file no. 679258 (Appeal Decision October 31, 1988). Claimant clearly has not met that burden in this case. By her admission, claimant has not looked for work since March 1989. Claimant testified that she worked as a pusher for two hours on April 23, 1990, but was unable to continue working afterwards. Claimant cannot meet her burden with one unsuccessful attempt to return to work with defendant employer. Claimant also cannot meet this burden simply by testifying that she cannot think of any work she is capable of performing when she has made no attempt to secure employment. Furthermore, claimant's vocational expert merely speculated that while claimant is able to obtain employment, she is incapable of sustaining employment. Employer testified that the pusher position is Page 9 continuously available to claimant and they are willing to be flexible and accommodating of her restrictions. Claimant has not pursued any further contacts with employer. Therefore, it cannot be concluded that claimant is an odd-lot employee as contemplated by Guyton, supra, as claimant's attempt to secure employment falls far short of those exhibited in that case. Claimant has, however, clearly demonstrated she sustained an industrial disability as a result of the injury on March 10, 1987. Medical practitioners who have examined and/treated claimant have rendered opinions on impairment ranging from 12 to 25 percent and have imposed restrictions on her employability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial 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 Page 10 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., (Appeal Decision, March 26, l985). Claimant, age 36 at the time of the hearing, has a GED certificate with no other formal education experience. Claimant has worked as a cashier, salesperson and electronics tester/inspector. Claimant has work restrictions from Dr. Laaveg, her treating physician, which include no sitting or standing for more than 30 to 40 minutes at any one time; no repetitious bending or twisting; no work in cold environments; no lifting over 10 pounds or carrying over 5 pounds; or working any one time of more than an hour to two hours (Ex. 37). The pusher position at Wellborn Industries which has consistently been made available to claimant accommodates her restrictions. In fact, Ms. Schrot testified that this job would not require her to sit for longer than 30 to 40 minutes at any one time. Since there is a job available to claimant through employer, she cannot be found totally and permanently disabled. The industrial commissioner stated in Gallardo v. Firestone Tire Company, File No. 643357 (Appeal Decision Filed October 21, 1987), that an employer's repeated effort to retain claimant as an employee after injury and to accommodate medical restrictions resulting therefrom reduces the amount of claimant's industrial disability. However, it is unclear whether defendants made any effort prior to trial to notify claimant that the pusher position is always available to her. Nevertheless, claimant's efforts in this regard have not been very aggressive either. It is difficult, by the evidence presented in this case, to make a definitive judgment on claimant's motivation simply because such evidence on this issue is so contradictory. Claimant had a stable work history from 1972 through 1977 and from 1984 until her injury in 1987. Claimant has cooperated in rehabilitative services through defendants. At the hearing, she did not appear distracted by her pain nor unable to concentrate on the proceedings. Nevertheless, she is unwilling to pursue employment with employer. Her subjective complaints of pain are disproportionate to the clinical and laboratory findings. The evidence clearly establishes that claimant has suffered both a loss of earnings as a result of her injury and a loss of earning capacity. With the restrictions imposed by Dr. Laaveg, claimant would have a difficult time performing most occupations. Nevertheless, the fact that there is a job available to her at Wellborn Industries certainly reduces the amount of her industrial disability. It was Dr. Laaveg's impression that claimant cannot sit or Page 11 be attentive in any one position without increasing pain and discomfort. This was not evident at the hearing. Claimant was able to sit throughout the course of a four hour morning session, sitting/standing every hour in order to achieve maximum comfort but without diverting her attention from the matter at hand. Claimant was clearly focused and did not appear in such extreme pain as not to be able to concentrate. Considering than all the elements of industrial disability, it is determined that claimant has established a permanent partial disability of 25 percent for industrial purposes entitling her to 125 weeks of permanent partial disability benefits. Defendants raise the defense of unreasonable refusal to undergo medical treatment. Defendants assert that claimant has unreasonably refused implantation of a dorsal column stimulator. While an unreasonable refusal of proffered medical benefits can result in a loss of weekly benefits; Johnson v. Tri-City Fabricating and Welding Company, Thirty-third Biennial Report of the Iowa Industrial Commissioner 179 (Appeal Decision 1977), failure to undergo surgery which carries some significant risk in the outcome of which is not altogether certain does not represent an unreasonable refusal of medical care. Arnaman v. Mid-American Freight Lines, I-3 Iowa Industrial Commissioner Decisions 497 (1985); Barkdoll v. American Freight System, Inc., File Nos. 778471, 816913 (Appeal Decision, June 28, 1988). Although Dr. Beck recommended the dorsal column stimulator implantation, he admitted that it may not benefit all of claimant's symptoms. Furthermore, in his experience with patients who have had this procedure, long term benefits have been achieved in 75 percent of cases. Claimant testified that she is fearful of undergoing another surgical procedure at this time unless she could be assured of 100 percent effectiveness. In any event, the undersigned concludes that claimant's unwillingness to undergo implan tation is not an unreasonable refusal of medical care to justify a loss of weekly benefits. The final issue for resolution is payment of medical costs under Iowa Code section 85.27 and transportation expenses incurred for such services. On March 17, 1989, claimant filed an application for medical examination by John R. Walker, M.D., under Iowa Code section 85.39. Claimant's request was approved on April 17, 1989 and a ruling issued ordering defendants to reimburse claimant for the reasonable expenses of such an examination, including travel expenses. Therefore, claimant has a right to be reimbursed by the employer for all charges in conjunction with Dr. Walker's examination and for reasonable and necessary transportation expenses incurred for such services. order THEREFORE, IT IS ORDERED: 1. That defendants pay to claimant one hundred twenty-five (125) weeks of permanent partial disability Page 12 benefits at the stipulated rate of one hundred twenty-eight and 58/l00 dollars ($128.58) per week commencing February 13, 1989. 2. Defendants shall receive full credit for all disability benefits previously paid. 3. Benefits that have accrued shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. 4. Claimant shall be reimbursed by defendants the reasonable fee for examination by Dr. Walker and reasonable necessary transportation expenses incurred for the examination. 5. A claim activity report shall be filed upon payment of the award. 6. Costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of May, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr. Richard R. Winga Attorney at Law 300 American Federal Bldg P O Box 1567 Mason City IA 50401 1803; 2700 Filed May 14, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : DONNA K. KIRKBRIDE, : : Claimant, : : vs. : : File No. 847423 WELLBORN INDUSTRIES, LTD., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : USF&G, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803; 2700 The issue in this case is the extent of claimant's permanent disability, if any, and the related issue of whether claimant is an odd-lot employee. A circuit board, weight disputed, fell off a shelf and landed on claimant's left foot. A lumbar sympathectomy was performed. Claimant developed a trochanteric bursitis of the left hip secondary to a limping gait. She underwent excision of the greater trochanteric bursa. Claimant's treating physician rated 15 percent of lower extremity, or 6 percent of whole person, and 30 percent of the hip, or 12 percent of whole person, for a combined rating of 17 percent. Other ratings have ranged from 12 to 25 percent. Restrictions imposed included no lifting over 10 pounds and no prolonged setting or standing but can alternate between sitting and standing. No climbing or crawling. Employer offered her a job within these restrictions. Claimant worked two hours and couldn't handle the job and left work. A neurosurgeon recommended placement of a dorsal column stimulator. Claimant refused and defendant raised defense of "unreasonable refusal of medical care." While an unreasonable refusal of proffered medical benefits can result in a loss of weekly benefits; Johnson v. Tri-City Fabricating and Welding Company, Thirty-third Biennial Report of the Iowa Industrial Commissioner 179 (Appeal Decision 1977), failure to undergo surgery which carries some significant risk in the outcome of which is not altogether certain does not represent an unreasonable refusal of medical care. Arnaman v. Mid-American Freight Lines, I-3 Iowa Industrial Commissioner Decisions 497 (1985); Barkdoll v. American Freight System, Inc., File Nos. 778471, 816913 (Appeal Decision, June 28, 1988). Claimant is 36 years old and has a GED certificate. She has significant work restrictions. Since there is a job available to employee which accommodates her restrictions, she cannot be found totally and permanently disabled. Since there is a job available to claimant through employer, she cannot be found totally and permanently disabled. The industrial commissioner stated in Gallardo v. Firestone Tire Company, File No. 643357 (Appeal Decision Filed October 21, 1987). Her industrial disability is reduced due to her unwillingness to pursue an available position with employer. Considering all of the factors of industrial disability, claimant awarded 25 percent permanent partial disability benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA K. KIRKBRIDE, : : File No. 847423 Claimant, : : RULING ON CLAIMANT'S vs. : : APPLICATION FOR WELLBORN INDUSTRIES, LTD., : : REHEARING AND ORDER Employer, : : NUNC PRO TUNC and : : USF&G, : : Insurance Carrier, : Defendants. : ___________________________________________________________ Claimant filed an application for rehearing and/or order nunc pro tunc on May 24, 1991. A decision was rendered in the above named case on May 14, 1991. Defendants were ordered to pay claimant 125 weeks of permanent partial disability benefits commencing February 13, 1989. The aforementioned order is amended to state that the 125 weeks of permanency benefits commencing February 13, 1989, should be paid to June 4, 1989, interrupted by healing period benefits from June 5, 1989 to January 11, 1990, with permanency benefits again commencing on January 12, 1990 and continuing until fully paid. The arbitration decision sets out the factors which the undersigned considered when making her finding of industrial disability. Claimant demonstrated little motivation to work. The prior finding of industrial disability is correct. THEREFORE, IT IS ORDERED THAT: 1. The arbitration decision dated May 14, 1991, is modified to clarify the interrupted healing period from June 5, 1989 to January 11, 1990, in accordance with the stipulation and agreement of the parties. 2. Claimant's application for rehearing on the issue of industrial disability is denied. Signed and filed this ____ day of May, 1991. Page 2 ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey, III Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr. Richard R. Winga Attorney at Law 300 American Federal Bldg P O Box 1567 Mason City IA 50401 BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEROY HAWS, Claimant, File No. 847496 VS. R U L I N G 0 N DTI OF SIOUX CITY, A P P L I C A T I 0 N Employer, F 0 R and D E C L A R A T 0 R Y AETNA LIFE AND CASUALTY, R U L I N G Insurance Carrier, Defendants. On July 15, 1987 claimant filed an Application For Declaratory Ruling. The undersigned, having reviewed the application and statements thereto, the same comes on for determination. It is clear from a review of the application that it fails to meet the requirements for a petition for declaratory ruling. Division of Industrial Services Rule 343-X.5 indicates that an agency may refuse to issue a declaratory ruling for good cause. WHEREFORE, claimant's application for declaratory ruling is refused for the following reasons. 1. The petition does not substantially comply with the required form. 2. The questions presented would more properly be resolved in a different type of proceeding. 3. The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct. THEREFORE, claimant's application for declaratory ruling is denied and dismissed. Signed and filed this 29th day of July, 1987. DAVID E.LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Harry W. Dahl, III Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 Mr. Brian Nelson Claims Adjuster Aetna Life and Casualty 500 E. Court Avenue Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RICHARD BLACKWOOD, Claimant, vs. File No. 847551 THE MAYTAG COMPANY, A P P E A L Employer, D E C I S I O N and FIREMAN'S INSURANCE COMPANY OF NEWARK, 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 October 14, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of August, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Sheetz Attorney at Law 4910 Urbandale Ave. #304 Des Moines, Iowa 50310 Ms. Patricia J. Martin Attorney at Law 100 Court Ave., Ste 600 Des Moines, Iowa 50309 5-1100; 5-1108; 5-1402; 5-1802 Filed August 23, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RICHARD BLACKWOOD, Claimant, vs. File No. 847551 THE MAYTAG COMPANY, A P P E A L Employer, D E C I S I O N and FIREMAN'S INSURANCE COMPANY OF NEWARK, Insurance Carrier, Defendants. ____________________________________________________________ 5-1100; 5-1108; 5-1402; 5-1801 Claimant established a temporary aggravation of underlying degenerative disc disease in a work-related incident. Claimant did not establish that the work incident produced any permanent disability. Claimant had two prior back surgeries unrelated to the work incident and had a third and fourth back surgery two years and approximately three and one-half years subsequent to the work incident. Held that the third and fourth back surgeries related to claimant's underlying degenerative disease and not to the work incident. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RICHARD BLACKWOOD, : : Claimant, : : vs. : : File No. 847551 THE MAYTAG COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIREMAN'S INSURANCE COMPANY : OF NEWARK, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Richard Blackwood, against his employer, The Maytag Company, and its insurance carrier, Fireman's Insurance Company of Newark, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury allegedly sustained on February 28, 1987. This matter came on for hearing before the undersigned deputy commissioner at Des Moines, Iowa, on September 9, 1992. A first report of injury has been filed. The record consists of the testimony of claimant and of Ellen Herford as well as of joint exhibits 1 through 10. ISSUES Pursuant to the hearing assignment order, the hearing report, and the oral stipulation of the parties, the parties have stipulated to the following: 1. That claimant was married and entitled to two exemptions at the time of his injury and then earned a gross weekly wage of $545 entitling him to a weekly rate of compensation of $325.42; 2. That fees charged for medical services supplied were fair and reasonable and that the services rendered were reasonable and necessary medical treatment; and, 3. That defendants have paid claimant 148 weeks of compensation at the correct rate. Issues remaining to be decided are: 1. Whether claimant did receive an injury which arose out of and in the course of his employment; Page 2 2. Whether a causal relationship exists between the claimed injury and claimed disability; 3. The nature and extent of claimant's benefit entitlement, if any; and, 4. Whether claimant is entitled to payment of certain medical costs as causally connected to the work injury and as authorized by defendants. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 56-year-old gentleman. He began work with The Maytag Company in 1968 and in September of 1974 completed a four year apprentice to become a machinery repairer/millwright. He worked as a repairer/millwright until approximately September 1987. On August 5, 1980, claimant fell off a ladder at work sustaining low back and right buttock pain with radiation of pain down the back of the right thigh and leg. Robert A. Hayne, M.D., a neurosurgeon, performed a right L4/L5 laminectomy on October 13, 1980. On February 3, 1981, Dr. Hayne opined that claimant likely would have a 9 percent body as a whole permanent partial impairment upon complete recuperation from the initial October 1980 surgery. On June 6, 1981, Dr. Hayne restricted claimant from lifting more than 35 pounds. Claimant persisted in having problems and on March 16, 1982, Dr. Hayne performed a repeat L4/L5 laminectomy on the right. On September 27, 1982, Dr. Hayne opined that claimant had a 16 percent permanent partial "disability" on account of his two surgeries and attributed 8 percent of that rating to each surgery. Dr. Hayne again released claimant for work on September 1, 1982, with a 40 to 50 pound lifting restriction. Mark Broderson, M.D., had also examined and treated claimant during this period and on September 23, 1981, had returned claimant to work with a 30 pound lifting restriction. Claimant had episodes of back problems subsequent to September 1982 and prior to February 1987. He, on occasion, was off work and had seen and treated with Ronald R. Reschly, M.D., a board certified orthopedic surgeon in January and again in October 1985 for such problems. Claimant worked as a millwright throughout this time with his employer accommodating his 40 pound lifting restriction. Claimant experienced back pain on Saturday, February 28, 1987, while removing a motor from an overhead conveyor. He characterized the situation as "lifting too much and injuring his back." Claimant saw Dr. Broderson on May 8, 1982. Dr. Broderson then reported that claimant had a dull ache and tingle into the right leg and that he had right leg pain which was not sharp but was achy, and pain down to the foot with numbness into the toes and posterior calf. The impression was of mechanical low back pain with very mild Page 3 radiculopathy and no neuropathy. A medical report of the doctor to Renee Kidman of the insurance adjusting company reports that claimant had left leg pain that was not sharp but was achy in May 1987. A review of the copy of the handwritten office note of May 8, 1987, in evidence, suggests that the actual reference was to right leg pain. While such is difficult to discern as the handwritten note contains a circle containing either an L or an R and the circle is on both the margin line and the lined line on lined paper, both the lined line and margin line are definitely darker within or on the circle suggesting that the notation within the circle is of an "R" and not of an "L." Additionally, if the notation is actually an "L," the "L" is in the right half of the circle only. If that is the case, the "L" is written with a far right slant. That slant is atypical of the handwritten note as a whole in that the handwriting overall is centered and only modestly right slanting. Hence, an interpretation of the notation with the circle as a "R" and not as a "L is more consistent with the handwritten note's characterization overall. Given such, it appears that the reference to left leg pain in the medical report to Kidman is an interpretation error. Regardless, both the office note of May 8, 1987 and the medical report of May 13, 1987 indicate that claimant's straight leg raising test was negative on examination. That finding is consistent with the absence of radicular symptoms as of May 8, 1987. Claimant saw Thomas Carlstrom, M.D., a board certified neurologist, on July 24, 1987. The doctor then found low back pain and right leg pain. Claimant saw William R. Boulden, M.D., a board certified orthopedic surgeon on August 25, 1987. Claimant then had complaints of low back, and right lateral foot pain. On review of an MRI, a CT scan and a myelogram, Dr. Boulden found claimant had multiple levels of degenerative disc disease in the lumbar spine but no evidence of a recurrent right L4/L5 disc herniation. A small, midline to slightly left disc protrusion at L4/L5 was discovered. While Dr. Carlstrom had previously recommended fusion of all lumbar levels but for the L3 level, Dr. Boulden opined that surgical treatment was not warranted given claimant's extensive lumbar degenerative disc disease. Dr. Boulden prescribed a work hardening and exercise program. Dr. Boulden next saw claimant on October 15, 1987. Claimant then reported increasing back pain as a result of the conditioning program and increasing coccyx pain. Boulden characterized the coccyx pain as very significant as that pain had been only mild when Boulden initially saw claimant. An MRI of October 1987 contained essentially the same findings as previous radiological testing. On November 3, 1987, Dr. Boulden performed facet blocks at L4/L5 and L5/S1 in the coccyx area. The blocks did not decrease claimant's pain in the spinal area and did improve claimant's coccyx pain. Dr. Boulden believed that claimant's work hardening program had produced an aggravation of claimant's degenerative process in the coccyx area. On November 30, 1987, Dr. Boulden performed a coccyx Page 4 excision. Dr. Boulden again saw claimant on December 10, 1987. Claimant then did not have complaints of leg pain. On December 24, 1987, claimant had complaints of back pain which he apparently characterized as something he had before with which he would have to live with. On February 4, 1988, claimant had pain in the sacral area. On March 3, 1988, claimant complained of increased back pain and did not report leg pain. Dr. Boulden opined that claimant reached maximum medical improvement subsequent to his coccyx incision on March 15, 1988. Dr. Boulden opined that the coccyx excision had not produced permanent partial impairment. He advised that claimant use proper body mechanics and not engage in repetitive bending or twisting with the back, nor prolonged sitting or standing, that is, nothing greater than 30 to 45 minutes. Dr. Boulden indicated he would have imposed such restrictions on claimant subsequent to his surgeries in 1980 and 1982. Dr. Boulden, in his deposition, opined that claimant's February 1987 work incident had not produced any material change in claimant's underlying degenerative disc pathology although that pathology had been made symptomatic after the February 1987 incident. He further related claimant's coccyx excision to the February 1987 injury stating that the coccyx area became symptomatic as a result of a work conditioning recommended to treat the February 1987 symptomatology. On March 18, 1988, Dr. Boulden opined that claimant had a 15 percent body as a whole permanent partial impairment related to his two L4/L5 right laminectomies and the residuals of degenerative disc disease. In his deposition, Dr. Boulden opined that claimant had a 13 percent plus a 9 to 12 percent minus a 1 to 2 percent permanent partial impairment on account of his combined surgeries through November 9, 1990. Claimant returned to work on the manufacturing line as a dryer inspector and with a 25 pound lifting restriction after Dr. Boulden's initial work release. Claimant reported his pain did not resolve subsequent to the coccyx surgery. Claimant saw Dr. Boulden on October 11, 1988, with complaints of left hip pain on prolonged standing. On December 6, 1988, Dr. Boulden diagnosed claimant's condition as external tendinitis of the left hip. On November 29, 1988, Dr. Boulden opined that claimant had no greater permanent partial impairment of his back as a result of the February 1987 incident than he had had prior to the incident. Claimant, of his own accord, saw Dr. Reschly on January 30, 1989. Claimant then complained of pain in the left lateral buttock just posterior to the left greater trochanteric bursal area and in the sciatic notch area. Claimant also had pain down the right lower extremity and into the posterior calf. He had positive straight leg Page 5 raising on the left at 60 degrees. In his deposition of October 29, 1991, Dr. Reschly reported that through March and April of 1989, claimant had severe persistent sciatica that steadily worsened until Dr. Reschly performed a laminectomy at L4/L5 on the left on May 2, 1989. Dr. Reschly released claimant for work on April 16, 1989. On October 4, 1989, Dr. Reschly restricted claimant to working no more than 40 hours per week and eight hours per day; to do only limited or occasional bending and twisting; to vary sitting and standing; and, to lift no more than 15 pounds. In January 1990, Dr. Reschly raised claimant's per hour limit to 10 hours per day. Dr. Reschly has opined that claimant has an 8 percent additional permanent partial impairment as a result of his May 2, 1990 surgery. Reschly has characterized such as an addition to previous ratings of 20 percent for the 1980 and 1982 surgeries and as an addition to a 10 percent rating for claimant's coccyx excision. The record overall does not support a finding that claimant has previous ratings of 20 percent and 10 percent, respectively. In his deposition, Dr. Reschly opined that he treated claimant for the same problems for which Dr. Boulden had treated claimant in 1987. Dr. Reschly opined that coccyx excision is generally not effective in ending coccyx pain not produced by direct coccyx trauma in that coccyx pain is referred pain from the lumbar spine. Dr. Reschly opined that there was essentially no substantial difference between claimant's 1987 and 1989 MRI's but for the fact that in the 1989 MRI nerve root impingement could be identified and such could not be identified in the 1987 MRI. In his deposition, of apparently December 1991, Dr. Boulden opined that the disc protrusion at L4/L5 on midline and slightly to the left was "definitely much larger in 1989 than in 1987." Dr. Boulden further stated that if sciatica is not present within six weeks of a significant injury with a documented herniated disc, one can suspect the disc is not symptomatic. He opined that in that claimant's first left side complaint was in October 1988 and related to the left buttock area, he could not correlate that pain with the alleged February 1987 injury and that, given that history, he did not believe the May 1989 surgery related to the February 1987 incident. Dr. Boulden further opined that, in that claimant did not have left side pain reported subsequent to his work hardening, it was doubtful that the work hardening had produced the herniated disc at L4/L5 on the left. Dr. Carlstrom again saw claimant on September 20, 1990. Claimant then was working with discomfort in both legs and with numbness and tingling radiating into the L5 nerve root distribution bilaterally. Dr. Carlstrom reported that an MRI of L4/L5 demonstrated an abnormality, possibly a recurrent disc herniation. On November 9, 1990, Dr. Carlstrom performed a posterior lumbar interbody fusion for disc herniation at L4/L5 on the left. Dr. Boulden has opined that that fusion does not relate to the February 1987 injury. It is expressly found that claimant did sustain a work Page 6 incident that arose out of and in the course of his employment on February 28, 1987, which work incident resulted in further temporary aggravation of his preexisting degenerative disc disease. It is expressly found that the work hardening prescribed to treat the symptomatic degenerative disc disease produced coccyx symptoms for which claimant underwent a coccyx excision. It is expressly found that Dr. Boulden's opinion that claimant's May 1989 laminectomy does not relate to his February 1987 work incident is accepted over Dr. Reschly's opinion of a causal relationship. In this regard, it is noted that claimant's 1987 MRI demonstration of a disc herniation on the left was not supported with clinical findings of left leg pain. The only notation of left leg pain prior to claimant's left buttock complaints of October 1988 is that contained in Dr. Broderson's May 13, 1987 report. That report appears to be a transcription error when the original office note is reviewed. Additionally, the persistency of claimant's left leg complaints subsequent to January 1989 also suggests that those complaints represented a new problem related to claimant's evolving underlying degenerative disc disease and not related to his February 1987 work incident. CONCLUSIONS OF LAW Our first concerns are whether claimant received an injury which arose out of and in the course of his employment on February 28, 1987, and whether a causal relationship exists between that injury and claimed disability. 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 claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within 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 Page 7 other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially 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 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. As noted in the above findings, claimant did have a work incident on February 28, 1987, when he apparently strained and aggravated his underlying degenerative disc disease while performing his work duties. Dr. Boulden's opinion that as a sequelae of work hardening prescribed to treat the work-related aggravation, claimant aggravated his coccyx area with a resulting need for coccyx excision is also accepted. Likewise, Dr. Boulden's opinion that the coccyx excision did not result in any permanency to claimant is accepted. Additionally, Dr. Boulden's opinion that claimant's aggravation of his back in February 1987 did not result in additional permanent impairment is accepted. As also noted in the above findings, claimant has not established a causal relationship between his February 1987 injury and his May 1989 and November 1990 surgeries. As set forth in the above findings, the evidence relative to causation between the February 1987 work incident and the 1989 and 1990 surgeries and their sequelae at best creates Page 8 an equipoise. An equipoise is insufficient to carry claimant's burden. Volk v. International Harvester Company, 252 Iowa 298, 106 N.W.2d 649 (1960). We consider the question of claimant's benefit entitlement, if any. As noted, claimant has not established a causal relationship between his February 28, 1987 work incident and any permanent disability. For that reason, defendants are not liable for any payment of permanent partial disability benefits. Defendants are liable for payment of temporary total disability benefits for the periods claimant's disability related to his work condition. Temporary total disability benefits are payable until the claimant has returned to work. Iowa Code section 85.33(1) provides: 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. Defendants are liable for temporary total disability benefits to claimant for times claimant was actually off work from his February 28, 1987 date of injury through his release to return to work per Dr. Boulden on August 16, 1988. The parties have stipulated that defendants have already paid 68 weeks of benefits. It appears that payment of 68 weeks of benefits exceeds the total amount of defendants' benefits liability. Should that be the case, defendants have no further benefit liability to claimant. Claimant apparently seeks payment of medical costs with Dr. Reschly related to the 1989 treatment. It is expressly noted that no separate list of medical costs for which payment is sought was provided. In any event, the evidence does not establish any entitlement to payment of such costs under Iowa Code section 85.27. Defendants did not authorize claimant's treatment with Dr. Reschly. Additionally, the evidence has not demonstrated a causal relationship between Dr. Reschly's treatment of claimant and claimant's February 28, 1987 work incident. ORDER THEREFORE, it is ordered: Defendants pay claimant healing period benefits for those times claimant was actually off work on account of his February 28, 1987 injury from February 28, 1987 to August 16, 1988, at the rate of three hundred twenty-five and 42/100 dollars ($325.42). Page 9 Defendants receive credit for benefits previously paid. Claimant pay costs pursuant to rule 343 IAC 4.33. Defendants file any additional claim activity reports as ordered by the agency. Signed and filed this ____ day of October, 1992. ________________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David W Sheetz Attorney at Law 4910 Urbandale Ave #304 Des Moines IA 50310 Ms Patricia J Martin Attorney at Law 100 Court Ave Ste 600 Des Moines IA 50309 5-1100; 5-1108 5-1402; 5-1802 Filed October 14, 1992 Helenjean M. Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RICHARD BLACKWOOD, Claimant, vs. File No. 847551 THE MAYTAG COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and FIREMAN'S INSURANCE COMPANY OF NEWARK, Insurance Carrier, Defendants. ___________________________________________________________ 5-1100; 5-1108; 5-1402; 5-1801 Claimant established a temporary aggravation of underlying degenerative disc disease in a work-related incident. Claimant did not establish that the work incident produced any permanent disability. Claimant had had two prior back surgeries unrelated to the work incident and had a third and fourth back surgery two years and approximately three and one-half years subsequent to the work incident. Held that the third and fourth back surgeries related to claimant's underlying degenerative disease and not to the work incident.