BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT DENTON, Claimant, File No. 850358 vs. A R B I T R A T I O N COUNTY OF UNION, D E C I S I O N Employer, F I L E D and OCT 4 1989 NORTHWESTERN NATIONAL, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Robert Denton, against County of Union, employer, and Northwestern National, insurance carrier, to recover benefits as a result of an alleged injury sustained on April 9, 1987. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa, on July 12, 1989. The record consists of the testimony of claimant, Carma Mitchell, Curt Greenfield, Allen Adam, and Dean Lowenberg; and joint exhibits I through VII. ISSUES The issues for resolution are: 1. Whether the claimant's alleged disability is causally connected to his injury of April 9, 1987; 2. The nature and extent of claimant's disability; and 3. Whether claimant is entitled to 86.13 penalty benefits. REVIEW OF THE EVIDENCE Claimant testified he is 46 years old and a high school graduate. Claimant said he has had no further formal education. Claimant stated he has been a farmer all his life up to the time of his injury in 1987. Claimant indicated that since 1964 he has been a part-time farmer, basically on weekends, and after working his regular job. Claimant said he has raised some cattle and sows and tills 34 of 84 acres he owns. Claimant said he has raised no livestock since 1982 and has had help with the 34 acres of tillable farmland since his April 9, 1987 injury. Claimant stated he started to Christian Community College in the early 1980's but did not finish. Claimant said he did not like his instructor. Claimant stated he has a reading problem, but his reading is better than his writing. He said he only reads magazines and newspapers. Claimant testified he has been operating a road maintainer (grader) or other equipment for defendant employer from 1971 to April 9, 1987. Claimant said his job also involves: running a bulldozer with or without a scraper, digging out or laying culverts, cleaning fence row, shoveling and tampering dirt, putting in elbows weighing up to 100 pounds, lifting pipes, cutting brush, operating a chain saw, loading and unloading road signs and barricades weighing 100 pounds, changing blades and tires, and some general equipment maintenance. Claimant said that on April 9, 1987, he was having trouble with the scraper that was attached to the bulldozer. Claimant described the manner in which the equipment is attached. Claimant said that while attempting to connect two cables with a bolt, someone pulled the wrong release lever and a scraper was lowered onto his left shoulder as he was squatting on the ground. Claimant said he was rolled over as a result of this incident and could not stand up. Claimant said he felt a muscle in his back pull and it began to hurt and burn down his lower back. Claimant said he returned to work part time for two weeks in July 1987 and then worked up to his ten hours per day summer schedule. Claimant stated that in August 1987 he was having so much pain he reduced his hours to six hours per day until November 1987 and then went back to his regular schedule (40 hours per week). Claimant stated his job duties or responsibilities changed since the injury. He indicated he does not do lifting. He said he tried to operate the dozer in the spring of 1988, but had to quit after one hour. He said he tried again in the summer of 1988 and had to quit. Claimant indicated he is not able, nor has he been asked, to do several other tasks he used to do for the county because of his back injury. Claimant indicated he is primarily running the grader on the road as his present job task. Claimant said he applied for a position through bidding in October 1987, but did not get the job. Claimant said he filed a grievance with the employer since he had seniority and was passed over by another person. Claimant contends he did not get the job because of his back injury. Claimant said in 1988 he applied for a foreman job because it would be easier than running the maintainer (grader) and easier on his back. He indicated a foreman goes around and tells people what to do. Claimant said he was qualified for the job, but he did not get it. Claimant acknowledged that he has the same job with defendant employer today as he did 18 years ago. Claimant said he has not looked for other jobs. Claimant indicated he plans to stay with Union County if he can stand to run the maintainer. Claimant acknowledged that he had right shoulder problems and some mid-back problems in the late 1970's and early 1980's; scoliosis in October 1975 and August 1976; bursitis in 1979; right shoulder treatment in December of 1980 and July of 1982; and a back strain resulting in one week off work in 1982. Carma Mitchell is a vocational consultant. She testified she assists people in returning to work. She said claimant's attorney requested that she evaluate claimant. Although Mitchell testified she had been provided with some depositions and medical information on claimant, she acknowledged she did not have a pre 1987 medical history or any knowledge of claimant's back condition. Mitchell admitted that as of the time of her May 1, 1989 report, she had not talked to claimant nor had she seen claimant's job description. Allen Adam testified he is an attorney and litigation supervisor for defendant insurance company. He said he personally handled claimant's case beginning May 28, 1987. Adam acknowledged that he did not consult with a physician before concluding that the TENS unit claimant was wearing would be of no help to claimant after he wore it for six months. Adam said he based his judgment on his expertise and seminars he has attended. He could not recall any seminar or doctor who told him that six months was the limit. Adam said he knew claimant returned to work on November 15, 1987. He said he did not know why he didn't pay accrued benefits for the period of November 15, 1987 to June 8, 1988, rather than beginning weekly benefits on June 8, 1988, based on a 10 percent impairment rating, except on advice of counsel. Adam also indicated that it was never brought to his attention that claimant wanted accrued benefits. Adam said that when he was notified on May 20, 1988 as to a permanent impairment rating being given claimant, he wrote Dr. Bunten that same day for the report. He stated that when he received claimant's 10 percent rating from Dr. Bunten on June 8, 1988, he began paying the 50 weeks on a weekly basis beginning June 8, 1988. Adam acknowledged Dr. Bunten was a defendant authorized treating physician. Curt Greenfield is a Union County engineer. He testified claimant's job is to operate the road maintainer. He indicated that claimant grades roads 70 to 80 percent of the time versus performing other jobs, unless there is a heavy snowfall. He acknowledged that the other jobs require heavy lifting. Greenfield said the county put a new seat on claimant's grader. He acknowledged claimant applied for a foreman job and is qualified to be a foreman. He indicated claimant has never complained to him as to any specific back complaint. He does not contemplate any layoffs. Greenfield acknowledged claimant has the same job and job description now as he had at the time of his injury. He admits claimant no longer operates the crawler, dozer and scraper, does not operates the endloader, does not drive a truck, and does not plow snow with a truck-mounted blade or with a grader. He said claimant is basically limited to operating the grader when he is dragging the road. He contends that the reason claimant doesn't operate equipment other than the grader (maintainer) now is not because of claimant's back condition. Dean Lowenberger's (claimant's union foreman) testimony, for the most part, was repetitive and cumulative to parts of Mr. Greenfield's testimony. He did acknowledge that he understood there was a weight limit imposed on claimant in July 1987. An x-ray report dated April 10, 1987 with Creston Medical Clinic reflects the following: EXAMINATION OF THE LUMBOSACRAL SPINE WITH THE INITIAL EXAMINATION BEING A TRANSLATERAL CROSSTABLE VIEW WITH THE REPEAT LATERAL AP BOTH OBLIQUE AND SPOT VIEW OF THE LUMBOSACRAL AREA BEING WITH STANDARD POSITION AND TECHNIQUE demonstrates evidence of a minimal wedge compression of L-1 in the anterior superior aspect of the vertebral body with it being slightly more compressed on the left margin than that on the right. The lumbosacral spine is otherwise not remarkable. (Joint Exhibit 32, page 31) An x-ray report dated April 24, 1987 with Creston Medical Clinic reflects: CT OF THE LUMBAR SPINE: Studies were done at the L4-5, L5, S1 and L3-4 levels. There is no evidence of herniated intervertebral disc. At the two and a half centimeter area below the L5,S1 interspace there is an apparent transverse fracture involving the sacrum. This is not separated and the sacroiliac joint does not appear disrupted. IMPRESSION: No evidence of herniated disc. 2. Apparent non-displaced fracture of the right sacrum. (Jt. Ex. A, P. 33) An x-ray report dated May 20, 1987 with Creston Medical Clinic reflects: EXAMINATION OF THE LUMBAR SPINE WITH PARTICULAR REFERENCE TO THE LOWER THORACIC AND UPPER LUMBAR REGION: Again demonstrates the minimal wedge compression of L1 which appears to be healing satisfactorily with no increase in the degree of compression as compared with the initial films with, on this examination, a minimal lipping of what appears to be T12 which I feel is of traumatic origin which was not clearly defined on the previous lumbar spine films. This is only a very minimal compression defect. (Jt. Ex. A, p. 34) Claimant's medical report with James E. Mansour, M.D., dated June 12, 1987, reflects: "Wedge compression fracture L 1, Lumbosacral Strain & Sacral fracture." (Jt. Ex. A, p. 18) Ronald K. Bunten, M.D., an orthopedic surgeon, noted the following on November 11, 1987: I think he has a 10% permanent partial impairment of his total body function based on the residuals of this injury. No additional orthopaedic treatment seems presently indicated or likely to occur in the future. I suggested he try returning to his usual work activities. We could reassess him on a p.r.n. basis. (Jt. Ex. E, p. 84) Thomas W. Bower, LPT, wrote the following in his report of January 4, 1989: [H]e would be classified into a light to medium category lifting slightly higher than 20 pounds occasionally, 10 pounds frequently, and negligible weight lifted constantly. This appears not to be a problem with the job he is currently performing since there is not a great deal of heavy lifting to be done.... In regards to the patient's overall disability, the values specifically pertaining to active range of motion have accounted for an 11 percent impairment. I feel these, however, are temporary and certainly could be improved upon through proper mobilization procedures to restore range of motion. Therefore, I do not feel that the 11 percent would be an accurate impairment on the basis of that acknowledgement. If there is substantial compression of the vertebral bodies then those would have to be accounted for but again I have no report to substantiate that at this time. (Jt. Ex. F, p. 94) In my report of January 4, 1989, I acknowledged the fact that if there were substantial compression of the vertebral bodies, this would definitely need to be accounted for in terms of a permanency rating. Utilizing the 3rd addition of the American Medical Association guides, a 0 to 25% compression of a vertebral body, which apparently is where this particular situation would fall, would account for an additional 5% impairment. Therefore, utilizing the 11% that we had previously stated, the 5% would be added to this through the accumulative charts providing a 15% impairment -to the body as a whole. As you also recall in my report of January 4, 1989, I felt that the range of motions and the impairment based on those range of motions could be improved upon with proper mobilization procedures. (Jt. Ex. F, p. 96) Bower testified through a deposition on June 28, 1989 that there is a very good possibility of improvement as to claimant's range of motion with the proper mobilization procedures. He indicated it would be speculative to determine the degree of reduction since claimant has not been exposed to these mobilization techniques. Bower emphasized that the 5 percent he referred to in his May 23, 1989 letter would not be reduced at all by the mobilization procedures. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of April 9, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Iowa Code section 86.13 states, in part: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Claimant is 46 years old and has only a high school diploma. Claimant has worked 18 years for Union County at the same job. Although claimant applied for a foreman job, he has not progressed above his original classification when he began work in 1971. Claimant's work classification is comprised of various work tasks from light duty to heavy duty work. It appears for 16 years claimant did all types of work including heavy duty work. He operated all types of machinery and appears skilled in their operation. Claimant is making the same comparable income today as he did at the time of his April 9, 1987 injury. Claimant has no loss of earnings. Defendants contend that since claimant is working and has no loss of earnings, claimant has no industrial disability, at least nothing more than what defendants have already paid to claimant. Loss of income does not equate to loss of earning capacity. It is only one of the criteria to consider in determining industrial disability. Claimant has lost the capacity to operate most, if not all, of the equipment he operated before his injury, except the road grader (maintainer). Claimant is not able to do the various jobs he used to be requested to do which required lifting. Mr. Greenfield indicated the reason claimant is not operating other equipment or performing the various other jobs is not because of his back. The undersigned does not accept that statement as correct. It is no coincidence that those activities ceased at the time of claimant's April 9, 1987 injury. It is obvious that claimant cannot perform many of those jobs that are set out in his job classification and description. Defendant employer is to be congratulated for keeping claimant employed and accommodating him. This has had a large effect on maintaining claimant's earning capacity at a higher level than if he lost his job. The undersigned must consider claimant's earning capacity at the present and not speculate as to what might happen to claimant if he lost his job or tried to find new employment with his present limitations. The undersigned cannot speculate as to claimant's future employment. Umphress v. Armstrong Rubber Company, Appeal Decision filed August 27, 1987). Dr. Bunten opined a 10 percent impairment to the body as a whole as a result of claimant's April 29, 1987 injury. Thomas Bower, LPT, opined a 15 percent impairment to the body as a whole. He included a 5 percent impairment attributable to the substantial compression of the vertebral bodies. He utilized the AMA Guides. He indicated that the other approximate 10 percent impairment could possibly be reduced if claimant was exposed to the proper mobilization procedures. The undersigned must consider the current status of claimant and not speculate as to such possibility of a reduction. The fact is, claimant has not been subjected to the mobilization techniques referred to by Mr. Bower. The undersigned finds claimant has a 50 percent impairment to his body as a whole and has a reduction in earning capacity. The undersigned finds that claimant's impairment and reduction in earning capacity is causally connected to his injury of April 9, 1987. The remaining issue is whether claimant is entitled to 86.13 benefits. Defendants' in-house counsel admits claimant incurred a permanent impairment. Defendants' doctor issued a 10 percent rating. Defendants contend that when they received the rating confirmed in writing, they started paying permanent partial disability benefits. Defendants indicated they started paying based on 10 percent impairment; therefore, defendants apparently felt that they were going to follow their doctor's opinion. There was no doubt as to the causal connection in Dr. Bunten's opinion. It would seem logical that defendants would pay the accrued permanent partial disability benefits at 10 percent in a lump sum rather than beginning the first weekly payment based on a 10 percent impairment rating. Mr. Adam indicated he did not know claimant wanted accrued benefits. The parties stipulated that permanent partial disability benefits, if found, would begin July 19, 1987. The law provides that compensation for permanent partial disability shall begin at the termination of the healing period. It is obvious that the healing period ended July 18, 1987, when claimant returned to work. Iowa Code section 86.13 provides that the industrial commissioner shall award additional benefits if there is an unreasonable delay in commencement or termination of payments. The undersigned finds that there was an unreasonable delay in the payment of 50 weeks of permanent partial disability benefits. Defendants are liable for an additional 10 percent penalty on the 50 weeks of permanent partial disability benefits that accrued since July 19, 1987 and which benefits defendants began paying on June 8, 1988 on a weekly basis. FINDINGS OF FACT 1. Claimant received a work-related wedge compression fracture L-1, lumbosacral strain and sacral fracture on April 9, 1987. 2. Claimant's current disability is causally connected to claimant's work-related injury on April 9, 1987. 3. Claimant has no loss of income as a result of his April 9, 1987 injury. 4. Claimant is working at the same job he had at the time of his April 9, 1987 injury, but is limited in his lifting and the use of certain equipment. 5. Claimant has a 15 percent impairment to his body as a whole as a result of his April 9, 1987 work-related injury. 6. Claimant has received all the healing period benefits and temporary partial disability benefits to which he is entitled and as stipulated by the parties. 7. Claimant has a reduction in earning capacity. 8. Defendant employer has accommodated claimant, which has enabled claimant to continue his job with some modification. 9. Claimant should have been paid the accrued permanent partial disability benefits on June 8, 1988, at which time defendants knew of claimant's impairment from defendants' own doctor. Defendants then determined claimant was entitled to at least 10 percent permanent partial disability benefits, but decided to begin payments to claimant on a weekly basis. 10. Claimant is entitled to a 10 percent penalty on 50 weeks of permanent partial disability benefits. CONCLUSIONS OF LAW Claimant's injury on April 9, 1987 arose out of and in the course of claimant's employment. Claimant's disability is causally connected to his injury on-April 9, 1987. Claimant has a 13 percent industrial disability as a result of his April 9, 1987 injury. Claimant is entitled to a 10 percent penalty on 50 weeks of permanent partial disability benefits, which amounts to $979.85. ORDER THEREFORE, it is ordered: That claimant is entitled to sixty-five (65) weeks of permanent partial disability benefits at the weekly rate of one hundred ninety-five and 97/100 dollars ($195.97) beginning July 19, 1987. That claimant has been paid all healing period benefits and temporary partial disability benefits to which he is entitled and as stipulated to by the parties. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for weekly benefits previously paid. That defendants shall pay nine hundred seventy-nine and 85/100 dollars ($979.85) penalty benefits. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall pay an activity report upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 4th day of October, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave Suite 201 Des Moines, IA 50312 Mr. William D. Scherle Attorney at Law 803 Fleming Bldg Des Moines, IA 50309 Mr. Helmut A. Mueller Attorney at Law RR 5 Osceola, IA 50213 5-1108.50: 5-1803 4000 Filed October 4, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT DENTON, Claimant, File No. 850358 vs. A R B I T R A T I O N COUNTY OF UNION, D E C I S I O N Employer, and NORTHWESTERN NATIONAL, Insurance Carrier, Defendants. 5-1108.50 Claimant incurred a work-related wedge compression fracture L-1, lumbosacral strain and sacral fracture resulting in a 15% impairment to his body as a whole. Causal connection between disability and injury found. 5-1803 Claimant incurred no loss of income as a result of his work injury, but incurred a reduction in earning capacity. Claimant awarded 13% industrial disability. 4000 Claimant awarded 10% penalty benefits ($979.85) on the 10% permanent partial disability benefits paid by defendants approximately one year later. Defendants received a permanent impairment rating from their own doctor approximately 14 months after injury and determined claimant was entitled to 10% permanent partial disability benefits. Defendants began paying weekly benefits rather than the amount of benefits accrued at time of defendants' determination of benefits. Defendants contended they did not know claimant wanted accrued amount in a lump sum. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS HENDRIX, File No. 850405 Claimant, A R B I T R A T I O N vs. D E C I S I O N IOWA POWER AND LIGHT COMPANY, F I L E D Employer, Self-Insured, FEB 9 1989 Defendant. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Dennis Hendrix against Iowa Power and Light Company, the self-insured employer. The case was heard and fully submitted at Council Bluffs, Iowa on November 21, 1988. The record in this proceeding consists of joint exhibit A, defendant's exhibits 1 through 33 and claimant's testimony. ISSUES Claimant sustained an injury when he inhaled a substance used to test the seal of a respirator mask device worn on his face. He seeks compensation for temporary total disability or healing period, compensation for permanent disability and authorization for alternate medical care. The employer contends that benefits should be suspended under the provisions of Iowa Code section 85.39 and that the treatment it has offered is reasonable. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. The Iowa Power and Light Company plant where claimant was employed was a coal-fired plant and had areas where airborne coal and other dust particles were highly concentrated. Parts of the plant required use of a respirator device to prevent inhalation of airborne particles. The type of respirator device in use at the time of claimant's injury was a facemask-type device which fit on the worker's face and covered his mouth and nose. If the device is to work properly and prevent all inhalation of airborne particles, it must have an airtight seal against the worker's face. Facial hair can prevent an airtight seal from being achieved. Iowa Power and Light Company adopted a policy requiring its employees who work in areas where respirator use is required to shave in such a fashion as to allow the respirator devices to make a tight seal. Claimant is afflicted with an ailment which causes his facial hairs to become ingrown if he shaves closely. He has consulted a dermatologist and has been advised to leave at least one-quarter inch of stubble when he shaves. Claimant appeared at hearing with a full beard and has customarily worn facial hair. There is apparently litigation ongoing regarding the propriety of the employer's policy regarding facial hair. On July 23, 1987, Dennis Hendrix was in the process of testing the fit and seal of two different respirators on his face. A substance known as stannic chloride was being used to test for leaks around the seal of the respirator devices. The material safety data sheet issued by the U. S. Department of Labor for the substance indicates that when the substance hydrolyzes with moisture in the air, it forms hydrochloric acid and stannic oxychloride. The data sheet cautions that it contains a corrosive acid chemical that causes burns and it recommends that contact with it be avoided and that breathing the smoke or fumes should be avoided because it can cause irritation of the upper respiratory tract (exhibit A, deposition exhibit 6). During the course of the testing process, claimant asked the management representative what the smoke from the stannic chloride smelled or tasted like, and the management representative sprayed a quantity of the substance directly into claimant's mouth. Claimant immediately experienced acute laryngeal spasm, difficulty breathing, laryngitis, a cough and throat distress (defendant's exhibit 7). A representative of the employer took claimant to A. M. Romano, M.D., for treatment. Claimant returned to work with a restriction from Dr. Romano that he not work in polluted air (exhibit 6). On July 28, 1987, the fit and seal of respirators on claimant's face was again tested, this time using saccharin rather than stannic chloride. Claimant again complained of a flare-up of the problem and returned to Dr. Romano. At that time, Dr. Romano authorized claimant to resume employment, but with restrictions that claimant not be subjected to further testing and also that he avoid smoky and/or dirty air (exhibits 5 and 7). Claimant stated that he was not allowed to work with those restrictions and was sent home without pay. Claimant was seen again by Dr. Romano on August 5, 1987, at which time he continued to voice complaints of hoarseness, shortness of breath on exertion and that trying to smoke caused laryngitis and coughing. Dr. Romano indicated that further evaluation by an internal medicine specialist or a pulmonologist was indicated (exhibit 7, page 2). Claimant declined to attend appointments which the employer had scheduled with Randall R. Hanson, M.D., a specialist in internal medicine and pulmonary disease who practices in Des Moines, Iowa. On August 18, 1987, Dr. Romano noted claimant's continued complaints of hoarseness, breathlessness and shortness of breath. Dr. Romano indicated that he felt three weeks was an excessive period of time and that claimant should be completely recovered from the incident. Dr. Romano indicated that claimant continues to smoke and that this may be an aggravating factor. He again indicated that a referral to a pulmonologist was in order (exhibit 7, page 3). Dr. Romano authorized claimant to return to work with restrictions (exhibit 7, page 4). Claimant was not allowed to return to work at that time, however. Dr. Hanson examined claimant on August 24, 1987 and found his lungs, chest x-rays and pulmonary function studies to be normal. Dr. Hanson found claimant to have no persistent pulmonary problems (exhibit A, pages 7-9). Dr. Hanson expressed the opinion that claimant's inhalation of stannic chloride and saccharin, both of which are irritants, caused symptoms of a cough and spasm, but no permanent effects. He found no evidence of mucous membrane damage or burning. Dr. Hanson found no evidence of chronic bronchitis or emphysema (exhibit A, pages 34, 35 and 56-60). Dr. Hanson stated that claimant has no permanent impairment and no permanent condition as a result of the incident, that claimant has no further need for treatment and that no need exists for claimant to restrict his activities (exhibit A, pages 11, 12, 30 and 47). Claimant regularly smokes cigarettes. Dr. Hanson indicated that cigarette smoking provides a continual irritant and that all of his symptoms could be caused by cigarette smoking (exhibit A, pages 49 and 50). Dr. Hanson also stated that, after an acute inhalation injury, the effect is transient and that it is extremely unlikely for symptoms to persist for more than a month (defendant's exhibit 4). When examining claimant, Dr. Hanson found an apparent abnormality in claimant's throat and recommended that claimant be evaluated by an ear, nose and throat specialist. Claimant was then evaluated by D. A. Syre, M.D., at Council Bluffs, who determined that the condition of claimant's throat was normal (defendant's exhibit 2). Dr. Syre released claimant to return to work on September 2, 1987 (defendant's exhibit 3). Claimant sought an evaluation on his own from John D. Roehrs, M.D., on September 24, 1987. Dr. Roehrs examined claimant and found no abnormalities. In his report, Dr. Roehrs indicated that there was little that claimant could do from a workers' compensation standpoint because his complaints were nebulous and could be attributed to claimant's tobacco use (defendant's exhibit 8, page 2). When claimant returned to work, he was not allowed to work as an electrician due to the restrictions that had been recommended by Dr. Romano. Claimant was allowed a medical bump and selected the job of a janitor which paid approximately $4.00 per hour less than his position as an electrician. Claimant filed a grievance with his union and was reinstated to the position of electrician. The employer was also required to provide claimant with a full-face respirator which could be worn effectively in spite of his facial hair. Claimant has subsequently been discharged from his employment, purportedly for excessive absenteeism. The discharge is being contested through the collective bargaining procedure. APPLICABLE LAW AND ANALYSIS Claimant is entitled to recover compensation for temporary total disability or healing period from the date of injury until he returns to work, is medically capable of engaging in work substantially similar to that he performed at the time of injury or until further significant improvement from the injury is not anticipated, whichever event occurs first. Iowa Code sections 85.33 and 85.34(1). Claimant had apparently made sufficient recovery by July 27, 1987 in order for Dr. Romano to allow him to resume employment, but he was then reexposed to an irritant. In view of Dr. Romano's restrictions, claimant was sent home from work without pay. Since claimant's release to return to work was with restrictions, he was not capable of performing employment substantially similar to that he performed at the time of injury. It was not until September 2, 1987 that claimant was allowed to return to work by the employer. Accordingly, claimant's entitlement to weekly compensation for his period of recuperation runs from July 23, 1987 until September 2, 1987. This is a span of five and six-sevenths weeks. The issue of permanency must be decided in a setting where claimant voices complaints of continuing symptoms, where he is working under restrictions imposed by Dr. Romano, yet where none of the physicians who have evaluated him have found any permanent impairment of any type resulting from the injury. If claimant's grievance regarding being required to take a lower paying job as a janitor had been unsuccessful, claimant could arguably be entitled to an award of permanent partial disability under McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). The grievance was, however, successful and claimant was returned to work in his former position as an electrician. The fact that claimant apparently has some permanent symptoms and restrictions, as indicated by Dr. Romano, could support an award of permanent partial disability, but the evidence fails to show that the claimant's symptoms and those restrictions were proximately caused by the July 23, 1987 inhalation injury. The sequence of events suggests a causal connection, yet none of the physicians have found any objective evidence of permanent injury. Drs. Hanson and Syre have indicated that restrictions are not necessary. In particular, it should be noted that the restrictions recommended by Dr. Romano are probably something which should be followed by all employees, regardless of their symptomatology. Further, claimant's smoking and use other irritants could have impaired the recovery which Drs. Romano and Hanson indicated should have occurred in no more than one month following his inhalation injury. If such voluntary activity on claimant's part had in fact prevented his recovery, such would be tantamount to willful self-injury for which the employer would not be liable. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 23, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The record in this case is totally devoid of any opinion from any physician which relates claimant's continued subjective complaints to the July 23, 1987 inhalation injury. In view of the other possible sources for claimant's complaints, the fact that the complaints are not supported by any objective medical findings and the claimant's appearance and demeanor as he testified at hearing, it is determined that the claimant has failed to prove, by a preponderance of the evidence, that his continued complaints and subjective symptoms were proximately caused by the inhalation injury of July 23, 1987. The employer seeks a suspension of benefits for claimant's failure to be examined under the provisions of Iowa Code section 85.39. Claimant, on the other hand, contests the reasonableness of an examination under section 85.39 and/or treatment under section 85.27 from Dr. Hanson in Des Moines, Iowa. Claimant resides at Council Bluffs, Iowa and worked for Iowa Power at Council Bluffs, Iowa. Travel to Des Moines, Iowa is approximately 260 miles round trip. It would normally be expected that quality medical care would be available in the Omaha-Council Bluffs area as claimant has requested. There is no evidence in the record which shows any lack of proper or adequate physicians or facilities for treatment or examinations in the Omaha-Council Bluffs area. Based upon claimant's testimony, it is determined that claimant has objected to traveling to Des Moines for treatment from the outset and has sought to have treatment be authorized in the Omaha-Council Bluffs area. The employer initially delivered claimant to Dr. Romano for treatment in the Council Bluffs area. The act of delivering claimant to Dr. Romano certainly manifests authorization for treatment by Dr. Romano. At page 3 of exhibit 7, Dr. Romano suggested that claimant have an appointment with Dr. Angellilo in Omaha who apparently is a pulmonologist. When claimant was first directed by the employer to be seen by Dr. Hanson, it was apparently unclear as to whether the appointment was for purposes of treatment or for an examination. Failure to attend an appointment made for purposes of treatment does not warrant a suspension of weekly compensation under the provisions of Code section 85.39. Assmann v. Blue Star Foods, Inc., file number 866389, (Declaratory Ruling, May 18, 1988). According to claimant's unrebutted testimony, when it was made clear to claimant that his appointment with Dr. Hanson was solely for the purpose of an examination, and not for treatment, claimant consented and was then examined by Dr. Hanson on August 24, 1987. These facts do not constitute a basis for suspension of weekly compensation under section 85.39. This determination is made without making any indication regarding whether or not direct contact was made between the employer's in-house counsel, Mary Nelson, and claimant, who was at the time represented and also without determining whether or not any such purported contact would have been ethically improper. Code section 85.27, in particular the fourth unnumbered paragraph, gives an employer the obligation to furnish reasonable services to treat an injured employee and also the right to select the care. The section also states: The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. Clearly, requiring an inhabitant of Council Bluffs, Iowa to travel to Des Moines, Iowa to obtain medical treatment which was in all likelihood readily available in his own locality constitutes undue inconvenience and is clearly unreasonable. Since the care offered was unreasonable, claimant was free to seek reasonable care from a source of his own choice. There is, however, no indication in the record of this case that further treatment is warranted. Claimant was thoroughly evaluated by Dr. Hanson. Dr. Roehrs recommended that those same diagnostic tests be again performed, but claimant chose to continue smoking rather than engage in further testing. It should be noted that the test results under Dr. Hanson's direction were normal in spite of the fact that claimant was still smoking and that cessation of smoking would likely improve his pulmonary function, if it changed it at all. An employer's responsibility is to provide reasonable care. This does not require an employer to duplicate treatment or tests that have already been provided. It does not require an employer to pay for office calls which are not medically warranted. In this case, there is no indication, beyond claimant's subjective complaints, that further treatment is indicated. In fact, the only further treatment that any of the physicians have recommended in this case is that pulmonary function studies be again performed. Such would be a duplication of those previously performed and the employer should not be required to pay the cost of duplicative care. Accordingly, in view of claimant's request for alternate care, it is determined that St. Joseph Hospital in Omaha, through Creighton University, is authorized to provide care and treatment for claimant to the extent that any care or treatment is or should become medically warranted. At the time of hearing, no further treatment was indicated. An examination under section 85.39 is intended to be an "independent" examination. It is not unusual for a second opinion or independent evaluation to be sought from physicians in a locality other than the locality where the claimant has been receiving treatment. Such avoids the potential for familiarity among physicians and enhances the credibility of the independent opinion that is rendered. Claimant does not have any known physical problems with traveling. It was not unreasonable for an independent examination under section 85.39 to be conducted in Des Moines, Iowa. The employer is, of course, required under section 85.39 to pay claimant for lost time from work and travel expenses. Since claimant was in a temporary total disability status at the time of his travel to Des Moines to be examined by Dr. Hanson, the lost time pay is satisfied by payment of temporary total disability compensation. Defendant does, however, owe claimant $54.60 for travel expenses (260 miles at $.21 per mile). FINDINGS OF FACT 1. Dennis Hendrix suffered an inhalation injury which arose out of and in the course of his employment with Iowa Power and Light Company. 2. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from July 24, 1987 until September 2, 1987 when claimant returned to work. 3. Claimant failed to introduce sufficient evidence to show it to be probable that he suffered any permanent physical impairment or any permanent loss of earning capacity as a result of the inhalation injury. 4. Claimant has continuing subjective complaints, but those complaints are not shown to be more likely related to the inhalation injury than they are to other possible causes. 5. The credibility of claimant's subjective complaints is not established. 6. Appropriate medical treatment for claimant's inhalation injury is readily available in the Omaha-Council Bluffs locality and it was not reasonable to require him to travel to Des Moines, Iowa for purposes of treatment. 7. It was not unreasonable to require claimant to travel to Des Moines, Iowa for purposes of a section 85.39 examination. 8. When claimant was first requested or directed by the employer to travel to Des Moines, Iowa to be evaluated by Dr. Hanson, it was unclear as to whether the travel was for purposes of an examination under Code section 85.39 or for treatment under Code section 85.27. 9. When claimant was assured that the purpose was an independent examination, he promptly complied with the request. 10. Claimant has failed to prove, by a preponderance of the evidence, that any further or additional medical treatment is warranted. 11. If further or additional treatment is or were to become warranted, St. Joseph Hospitals in Omaha, through Creighton University, would be an appropriate source of treatment. 12. There is no evidence in the record that claimant's exposure to airborne particles in his work place caused an inhalation injury or aggravated any pulmonary condition, other than the exposure to substances used when testing the fit and seal of respirator devices. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant is entitled to recover five and six-sevenths weeks of compensation for temporary total disability at the stipulated rate of $353.41 per week payable commencing July 23, 1987. 3. Claimant has failed to prove, by a preponderance of the evidence, that the injury of July 23, 1987 proximately caused any permanent impairment or permanent loss of earning capacity. Accordingly, he is not entitled to recover any compensation for permanent partial disability. 4. An employer fails to comply with its statutory duty of promptly offering treatment that is reasonably suited to treat the injury without undue inconvenience to the employee when it designates a physician located 130 miles from claimant's residence if reasonable and appropriate treatment is readily available in the locality of the claimant's residence. 5. An employer is entitled to require a claimant to travel 130 miles for purposes of obtaining an independent medical examination under the provisions of Code section 85.39 if the claimant is physically capable of traveling and a means of travel is available. 6. In order to suspend compensation for failure to attend an independent medical examination under the provisions of Code section 85.39, the employer must prove, by a preponderance of the evidence, that the employee was clearly and concisely notified of the time, place and purpose of the examination, in particular that it was an independent medical examination rather than an appointment for purposes of treatment. ORDER IT IS THEREFORE ORDERED that defendant pay claimant five and six-sevenths (5 6/7) weeks of compensation for temporary total disability at the rate of three hundred fifty-three and 41/100 dollars ($343.41) per week payable commencing July 24, 1987. The entire amount thereof is past due and owing and shall be paid to claimant in a lump sum together with interest pursuant to section 85.30 of The Code. IT IS FURTHER ORDERED that defendant is entitled to credit for any weekly compensation previously paid on account of the July 23, 1987 inhalation injury. IT IS FURTHER ORDERED that defendant is not entitled to suspend benefits based upon the alleged failure to attend an independent medical examination under the provisions of Code section 85.39. IT IS FURTHER ORDERED that, in the event claimant should require further treatment for the injury, he may obtain that treatment at St. Joseph Hospital in Omaha, Nebraska. IT IS FURTHER ORDERED that defendant pay claimant fifty-four and 60/100 dollars ($54.60) for travel expenses. IT IS FURTHER ORDERED that defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendant file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 9th day of February, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Lyle A. Rodenburg Attorney at Law 100-101 Park Building Council Bluffs, Iowa 51501 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309 1108.30, 1402.30, 1402.40 1403.10, 1801, 1803, 2501 2503, 2700 Filed February 9, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS HENDRIX, Claimant, File No. 850405 vs. A R B I T R A T I O N IOWA POWER AND LIGHT COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. 1108.30, 1402.30, 1402.40, 1403.10, 1801, 1803, 2501, 2503, 2700 Claimant awarded temporary total disability for the period following the injury until such time as the employer allowed the claimant to return to work following his examination by a number of employer-selected physicians. The evidence failed to show any permanent impairment or permanent disability as a result of the admitted inhalation injury, even though claimant complained of continuing, subjective symptoms. Claimant failed to prove the validity of his complaints or that they were proximately caused by the inhalation injury. It was held that requiring an employee to travel 130 miles from the Omaha-Council Bluffs area to Des Moines for purposes of treatment was a violation of the employer's duty to provide reasonable treatment without undue inconvenience to the employee, where it was indicated that adequate treatment was available in the Omaha-Council Bluffs area. It was further held, however, that requiring such travel for purposes of an independent medical examination under section 85.39 was not unreasonable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS HENDRIX, File No. 850405 Claimant, A P P E A L vs. R U L I N G IOWA POWER AND LIGHT COMPANY, F I L E D Employer, MAR 28 1988 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER Division of Industrial Services Rule 343-4.27 states in part: No appeal shall be separately taken under this or 4.25 (17A, 86) from an interlocutory decision, order or ruling of a deputy industrial commissioner. A decision, order or ruling is interlocutory if it does not dispose of the contested case, unless the sole issue remaining for determination is claimant's entitlement to additional compensation for unreasonable denial or delay of payment pursuant to Iowa Code section 86.13. The ruling filed February 26, 1988, which is the subject matter of this appeal, is not dispositive of the contested case and therefore interlocutory. THEREFORE, the appeal filed March 8, 1988 is hereby dismissed. Signed and filed this 28th day of March, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Lyle A. Rodenburg Attorney at Law 101 Park Building Council Bluffs, Iowa 51501 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309-2464 Page 1 before the iowa industrial commissioner ____________________________________________________________ : WILLIAM J. LITTLE, : : Claimant, : File No. 850409 : vs. : A P P E A L : IOWA POWER AND LIGHT COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 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 September 26, 1989 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Claimant's request for a change in medical treatment was not required to be ruled on prior to the hearing. Claimant's request for medical evaluation, which is designed to produce evidence for use at the hearing, was granted prior to the hearing, but claimant delayed the scheduling of the evaluation until after the hearing. Claimant bears the burden of proving his entitlement to benefits. Claimant's lack of medical evidence in his favor is the product of his own misreading of the statutes and delay caused by himself. Defendant raises as an issue on appeal an alleged error in the award of temporary total disability, contrary to the stipulation of the parties. However, defendant did not file a cross-appeal and therefore cannot raise issues on appeal. A review of the file also indicates that no request for an order nunc pro tunc was made after the decision was issued. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Lyle A. Rodenburg Attorney at Law 101 Park Building Page 2 Council Bluffs, Iowa 51501 Mr. Cecil L. Goettsch Attorney at Law 801 Grand Ave., Suite 3700 Des Moines, Iowa 50309 9999 Filed September 17, 1991 Byron K. Orton MAM before the iowa industrial commissioner ____________________________________________________________ : WILLIAM J. LITTLE, : : Claimant, : File No. 850409 : vs. : A P P E A L : IOWA POWER AND LIGHT COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed September 26, 1989, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM J. LITTLE, File No. 850409 Claimant, A R B I T R A T I O N vs. D E C I S I O N IOWA POWER AND LIGHT COMPANY, F I L E D Employer, SEP 26 1989 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding in arbitration. The case is brought by William J. Little, claimant, against Iowa Power and Light Co., self-insured employer. The case was heard by the undersigned on January 25, 1989, in Council Bluffs, Iowa. The record consists of claimant's exhibit 1. The record also consists of defendant's exhibits 1-18. At the time of the hearing, claimant's proposed exhibit 2 was not made part of the record. Claimant proposed to offer a deposition, taken subsequent to the hearing of an unnamed physician at the Creighton Pulmonary Clinic. The basis for the decision was that paragraph six of the prehearing assignment order governed the use of witnesses and exhibits. Paragraph six provided that: 6. Witness and Exhibit Lists. A list of all witnesses to be called at the hearing and a list of all proposed exhibits to be offered into the evidence at the hearing along with copies of all written exhibits not previously served shall be served upon opposing parties no later than fifteen (15) days prior to the date of hearing. Only those witnesses listed will be permitted to testify at the hearing unless their testimony is clearly rebuttal or sur-rebuttal. Medical records, practitioners reports and all other written evidence shall not be admitted as exhibits at the hearing unless they have been timely served upon an opposing party ordered herein. The service of witness lists pursuant to this order does not modify the requirements of Iowa Rule of Civil Procedure 125c to supplement responses to discovery as to experts not less than thirty (30) days prior to hearing. Claimant's attorney did not list a specific physician from the Creighton Pulmonary Clinic on the witness list and the witness list was not served upon the opposing party at least 15 days prior to the time of the hearing. Additionally, proposed exhibit 2 was not made part of the record because of Rule 343-4.31 of the Division of Industrial Services. The rule provides that: "No evidence shall be taken after the hearing. This rule is intended to implement Iowa Code section 86.18." ISSUES As a result of the prehearing report and order submitted on January 25, 1989, the issues presented by the parties are: 1) Whether there is a causal relationship between the alleged injury and the disability; 2) Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; 3) Whether defendant has provided reasonable medical care under section 85.27; and, 4) Whether claimant is entitled to alternate care under section 85.27. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations were: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That the claimant sustained an injury on June 5, 1987, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary disability during a period of recovery; 4. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $303.64 per week; 6. Defendant seeks credit under section 85.38(2) for previous payment of sick pay/disability income in the amount of $643.74; and, 7. Defendant paid claimant 1 2/7 weeks of compensation at the rate of $303.64 per week prior to the hearing. FACTS PRESENTED Claimant is employed as a coal hauler for defendant. He has held this position since April of 1986. Prior to that time, claimant had held various other positions with defendant. Claimant lives in Omaha, Nebraska and works in Council Bluffs, Iowa. On June 5, 1987, claimant was involved in an industrial fire at the Council Bluffs plant. The fire involved some oil saturated insulation which was burning. Claimant was apparently ordered to pour water onto the burning insulation. Steam resulted. Claimant's face was exposed to the steam. Several minutes later, claimant experienced complications. Claimant's recollection is sketchy, at best. During his deposition, claimant indicated he lost consciousness and woke up in the Jennie Edmundson Hospital in Council Bluffs, Iowa. Medical records indicate claimant was hospitalized from June 5, 1987 to June 10, 1987. The records provide in relevant portion: HOSPITAL COURSE: Patient was admitted on emergency basis for apparent unresponsive episode following exposure to fumes at the workplace encountered from putting out a fire using an extinguishe [sic]. Patient appeared stable, however, with the apparent unresponsiveness at the time of admission and the possible toxic exposure, he was admitted for observation and treatment. He was placed on IV Solu-Medrol for 24 hours and then converted to Prednisone which was gradually being tapered to help with the possibility of (unreadable) pulmonary edema. The patient had no relapse during the hospital course. His breathing became easier, and he complained less of tightness in the chest. There was no significant cough. Vital signs remained stable. He was having occasional spells of headache, dizziness and hot flashes with mild nausea but this seemed to clear, and he seemed to be resting well with normal vital signs. He was able to ambulate without difficulty. At the time of discharge, he was felt to be stable with clear lungs and no evidence of any adverse effects from his previous exposure. He was seen in consultation by Dr. Kullbom for possible dental extraction in view of very seriously decayed teeth. This will be followed up as an outpatient. DISCHARGE DIAGNOSES: Inhalation of acute toxic fumes, currently improved, with no evidence of residual disease or limitations. Severely carious and nonrestorable teeth. Status post appendectomy; arthroscopic right knee surgery [sic]. DISCHARGE MEDICATIONS: Prednisone, 10 mg po b.i.d. for two days and then to be decreased to 15 mg q a.m. DISCHARGE DISPOSITION: Patient will be seen in the office in two days for further adjustment of the Prednisone. It is anticipated that he may return to work on 6/15/87. It is not expected that there would be any permanent residual from the acute exposure. It is felt that the patient should recover very smoothly and that the steroids will be tapered off over the course of the next week. The patient is to follow up with Dr. Kullbom for outpatient dental corrections at his own expense. John W. Marshall, MD/pc Subsequent to his hospital discharge, claimant was again seen by Dr. Marshall. Dr. Marshall issued three releases. They stated as follows: 6-15-87 Mr. Little may try returning to work 6/18/87. He was off due to wc 6/5/87 -> 6/18/87 6-22-87 Mr. Little should avoid dust/smoke for 1 week for health reasons 7/6/87 Mr. Little was suffering from headaches 6/19 ; 6/20. He was seen in the office 6/22 and seemed fairly stable He is seen today and is released to resume usual duties. Claimant returned to work on July 7, 1987. He testified during his deposition that despite Dr. Marshall's work release, claimant still avoided certain work situations. He indicated he avoided very dusty work areas and areas where hot coal was smoking. On July 30, 1987, claimant was seen by Randall Hanson, M.D. Dr. Hanson is a specialist in pulmonary disease. A physical examination was conducted. Claimant performed pulmonary function tests pursuant to Dr. Hanson's request. The physician also reviewed the x-rays which were taken at the Jennie Edmundson Hospital while claimant was hospitalized. In his report of August 3, 1987, Dr. Hanson opined: ...The patients [sic] current illness occurred on 6-5-87 when there was an industrial fire at the plant in Countil [sic] Bluffs, apparently oil saturated insulation caught fire and the chemical extinguishers were applied, and subsequently the patient was instructed to put water on the fire. He was approximately 10 ft. from it and a cloud of water and fumes engulfed the patient. He feels he was exposed to this for around 4-5 minutes. He subsequently became light headed and felt a burning of his nose and throat. He had shortness of breath and was taken to the supervisors office where he was given oxygen. He apparently passed out and awakened in the hospital. In the hospital, he was treated with oxygen and Prednisone and discharged after a 5 day hospitalization. At that time, his blood gas on 6 liters revealed a P02 of 164 with a PCO2 of 44 and PH of 7.38. WBC was 9000, his chest x-ray was normal, his vital signs remained stable and he was discharged with clear lungs and ambulating without difficulty. The patient subsequently notes a sense of inability to take a deep breath and breathlessness with exercise and when exposed to cigarette smoke, dust and fumes. He denies cough and sputum production. He states he feels jittery at these times and also complains of headache. His symptoms are promptly resolved by breathing fresh air. The patient has returned to work and is able to function at work while using a 3M paper mask, although he does note a sense of breathlessness. He notes increased fatigue and breathlessness also when walking 2-3 flights of stairs which he feels would usually not bother him. He has no night sweats, fevers, or wheezing. He feels his symptoms have not changed over the past month. The patients [sic] past medical history is positive for the afore mentioned [sic] asthma. He had an appendectomy about one year ago at Broadlawns. He has never been told that he had an abnormal chest x-ray. His family history is negative for lung disease. He has no hay fever. His review of systems is otherwise negative. He is on no maintenance medications. Physical exam today reveals a black gentleman with a weight of 212. Blood pressure is 128/84. Pulse is 68 and regular. HEENT exam is comensurate [sic] with his age. His chest is clear to auscultation. Cardiac exam reveals a sinus rhythm without gallop. He has no murmurs and no rubs. Abdomen reveals a 10 cm liver. There is no spleen. Bowel sounds are regular. He has no adenopathy. He has an appendectomy scar with keloid formation. There is no rash. Peripheral pulses are intact. Reflexes are active and symmetrical. Complete PFT's performed on him today are within normal limits. His vital capacity is 4.87, FEV-1 is 4.16, Maximum expiratory flow rate is 269. Total lung capacity is 6.42 liters, residual volume is 1.55, diffusion capacity is 25.9 or 76% of normal. His chest x-ray reveals a top normal heart size, some slight hilar calcification and some questionable patchy interstitial infiltrates. I reassured Mr. Little about the normality of his physical exam and pulmonary function studies. I shared with him that his chest x-ray is mildly abnormal. I agree he did have toxic inhalation with probably a degree of tracheobronchitis, but feel that this should be short lived and he should most likely have no residual problems. I have taken the liberty to obtain an angiotensin converting enzyme level and will obtain his x-ray's from Broadlawns and Jennie Edmundson for comparison. I suggested that his symptoms should resolve over the next couple of months. He should return to full activity and if his symptoms fail to resolve we.should repeat PFT's and do an exericise [sic] cardiopulmonary test. Thanks for asking me to see this interesting young man. In a later report, dated September 29, 1987, Dr. Hanson wrote: I am responding to the inquiry regarding Mr. William Little. He was examined by me on July 30, 1987. As I noted in my letter, I felt he had normal pulmonary functions and physical exam. It was felt that he would not have residual or. permanent lung disease. It is also noted that his chest x-ray had a mild abnormality suggestive of possible sarcoidosis. A blood test for this process was obtained on him and is negative. X-ray's were not obtained from Broadlawns Polk County Medical Center. Mr. Little was advised of the afore mentioned [sic] abnormality and of the need for follow-up. If I can be of further assistance, please give me a call. During his deposition, Dr. Hanson testified: Q. And would you please state that diagnosis and, if you could, describe it in layman's terms? A. Okay. Basically Mr. Little had a mild abnormal chest x-ray, which I shared with him, that he had some mild enlargement of his hilar lymph nodes, which I told him was most likely not related to his inhalation injury. I shared with him that this might be related to either a previous infection with the fungus or a process that is seen in black patients as well as white called sarcoidosis. I also shared with him that I felt he indeed did have an episode of acute toxic inhalation. I felt that he probably had mild chemical tracheobronchitis and that he had no residual disease, that his pulmonary function tests were normal and his symptoms should resolve. ... Q. Did you recommend any further examinations or treatment? A. I did. Q. And what were they? A. Actually we did a blood test for sarcoidosis. The blood test is called an angiotensin converting enzyme test. We obtained that test on him and I suggested to the patient that if his symptoms failed to resolve, that he should be reevaluated with a follow-up breathing test and/or do an exercise test on him. (Exhibit 2, page 14, line 23 to page 17, line 4) Dr. Hanson also testified claimant conveyed various subjective symptoms to him. The symptoms included, "...that he felt that he was unable to take a deep breath, that he had a sensation of breathlessness with exercise, and a sensation of breathlessness when exposed to cigarette smoke, dust, and fumes. He also said that he felt jittery at times and he also complained of headaches." (Ex. 2, p. 22, 11. 1-7) According to Dr. Hanson's testimony, the x-ray, the physical examination and the pulmonary function tests did not substantiate claimant's complaints. (Ex. 2, p. 22, 11. 15-17) Dr. Hanson testified that he believed the symptoms would resolve themselves, but that claimant was to return for another examination if the symptoms persisted. A second examination with Dr. Hanson was scheduled by defendant for March of 1988. Claimant did not keep the appointment. Nor did claimant return to Dr. Hanson after the initial examination. Prior to the date of the hearing, claimant had not seen a medical practitioner because of his work related injury. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 5, 1987, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of June 5, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v, Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An 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, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. ANALYSIS The first issue to address is whether defendant provided reasonable medical care to claimant and whether claimant is entitled to alternate medical care under section 85.27 of the Iowa Code (1987). Claimant resides in Omaha, Nebraska. Formerly, he resided in Des Moines, Iowa with his mother. Claimant testified he routinely traveled to Des Moines on personal matters approximately eight times per year. During his hospital stay, claimant was hospitalized in Council Bluffs. Subsequent to his release from the hospital, defendant contacted Randall Hanson, M.D., as the authorized treating physician. Dr. Hanson practices medicine in Des Moines, Iowa. Defendant then set an appointment for claimant with Dr. Hanson on July 30, 1987. Claimant drove approximately 260 miles to the appointment and back. A second appointment with Dr. Hanson was set for March of 1988. Claimant did not keep the appointment. During his deposition, claimant testified he was unhappy with the treatment provided by Dr. Hanson. Nevertheless, claimant, on his own, did not schedule an appointment with a different physician. There is evidence in the Division of Industrial Services file, however, that on December 5, 1988, claimant requested a medical examination with a physician from the Creighton University Pulmonary Internal Medicine Center. The examination was to be arranged upon approval of employer pursuant to section 85.39, Code of Iowa. The attorney for defendant consented to the examination on January 7, 1989. Deputy Industrial Commissioner Helenjean Walleser approved the request on January 20, 1989. Section 85.27 provides in relevant portion: 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). If a claimant is dissatisfied with the care provided, the claimant should communicate the dissatisfaction to the employer. Niles v. Royal Indus., Thirty-Third Biennial Rep., Iowa Indus. Comm'r 214 (1977). The undersigned finds that the care provided by Dr. Hanson was not unreasonable care. All claimant stated was: Q. Do you like this doctor? A. No. I'm not happy with his treatment, no. (Ex. 1, p. 38, 11. 10-11) Claimant did not elaborate why he was unhappy with the treatment provided by Dr. Hanson. The only other complaint was that Dr. Hanson's office was located in Des Moines, while claimant resided in Omaha. Claimant, for personal reasons, testified he made approximately eight trips per year to Des Moines. The location of this physician alone is not sufficient to render Dr. Hanson's care unreasonable. Because the care provided to claimant was not unreasonable, claimant is not entitled to alternate care under section 85.27. It should be noted for the record that claimant's attorney has confused the right to a medical examination under section 85.39 with the alternate care provision provided under section. 85.27. Paragraph two of section 85.39 provides: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination.by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination.. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. This section affords claimant the right to an examination for purposes of a medical evaluation. It does not provide alternate medical care for claimant, even if defendant consents to pay for the cost of the medical examination. The statute which provides alternative medical care is section 85.27. It reads: 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. This statute deals with treatment. It is the authority by which a claimant may seek alternate medical treatment. Application to the commissioner for alternate medical treatment is different than application to the commissioner for a medical evaluation under section 85.39. Counsel for claimant has confused the two applications relative to this case. The text issue to address is the nature and extent of a permanent disability, if any. No medical practitioner has determined claimant has any permanent functional impairment. Dr. Hanson, as of September 29, 1987, opined: "I felt he had normal pulmonary functions and physical exam. It was felt that he would not have residual or permanent lung disease." Dr. Marshall, at the time of claimant's medical discharge, reported: "...At the time of discharge, he was felt to be stable with clear lungs and no evidence of any adverse effects from his previous exposure..." While claimant complained of certain symptoms such as shortness of breath, objective tests did not substantiate those complaints. Additionally, Dr. Hanson attributed the subjective complaints to claimant's childhood asthma and not to claimant's work injury. It is the determination of the undersigned that claimant has no permanent disability. This finding is based on: 1) the aforementioned considerations; 2) based upon the opinion of Dr. Hanson; 3) based upon claimant's deposition testimony; and, 4) based upon agency expertise, (Iowa Administrative Procedures Act 17A.14(s). It is also the determination of the undersigned that claimant is entitled to temporary total disability benefits. Section 85.33(1) defines temporary total disability benefits. It 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. In the case at hand, claimant was off work from June 5, 1987 to July 7, 1987. The time off work is calculated as 4.286 weeks. Upon his return to work, claimant continued performing the same position he held prior to the date of his injury. Claimant also returned to work at the same rate of pay. Claimant was under no restrictions from a medical practitioner. Any restrictions were self-imposed. Claimant testified he performed the same tasks required of him in his job. Therefore, it is the decision of the undersigned that claimant is entitled to temporary total disability benefits for 4.286 weeks at the stipulated rate of $303.64 per week. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. As a result of his work injury on June 5, 1987, claimant sustained an injury to his lungs. FINDING 2. Claimant sustained no permanent functional impairment as a result of his work injury on June 5, 1987. FINDING 3. Claimant was off work as a result of his work injury from June 5, 1987 to July 7, 1987. FINDING 4. Claimant returned to work on July 7, 1987 without any restrictions from a.medical practitioner. CONCLUSION A. Claimant has met his burden of proving he sustained a temporary total disability as a result of his injury on June 5, 1987. FINDING 5. Dr. Hanson was the authorized medical practitioner. FINDING 6. Dr. Hanson provided reasonable and necessary medical care to claimant. CONCLUSION B. Claimant is not entitled to alternate medical care under section 85.27. ORDER THEREFORE, defendant is to pay unto claimant four point two-eight-six (4.286) weeks of temporary total disability benefits at the stipulated rate of three hundred three and 64/100 dollars ($303.64) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant shall take credit for benefits previously paid. Defendant shall file a claim activity report upon payment of this award. Costs of this action are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 26th day of September, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Lyle A. Rodenbrug Attorney at Law 100 - 101 Park Bldg. Council Bluffs, Iowa 51501 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50309 2500; 2601.20; 2700 Filed September 26, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM J. LITTLE, Claimant, File No. 850409 vs. A R B I T R A T I O N IOWA POWER AND LIGHT COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. 2601.20 Claimant was not allowed to depose an unnamed physician subsequent to hearing. 2500; 2700 Claimant was not given alternate medical care under section 85.27 even though defendant had consented to an examination under section 85.39.