Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : DONALD W. TESCH, : : Claimant, : : vs. : : File No. 860672 SIEH FARM DRAINAGE COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL CASUALTY : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent total disability benefits as the result of an alleged injury on June 5, 1987. Claimant cross-appeals. The record on appeal consists of the transcript of the arbitration proceeding; claimant's exhibits 1 through 49; and defendants' exhibits A through F. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: (A) whether Deputy Industrial Commissioner Trier erred in concluding that claimant's failure to relate "a long history of back problems" did not invalidate the causation opinions of Drs. Donohue, Hacker, and Woodward; (B) whether Deputy Industrial Commissioner Trier erred in failing to determine the extent of claimant's disability caused by the accident of June 5, 1987, and in concluding that a permanent total disability cannot be apportioned between an injury and a pre-existing condition which the Deputy finds to be "the major factor in producing the current disability"; and (C) whether the record, when viewed as a whole, supports Deputy Commissioner Trier's conclusions with regard to the occupational causation of claimant's present condition, and that claimant is permanently and totally disabled within the provisions of Iowa Code Section 85.34(3). (Emphasis by author.) Page 2 Claimant states the following issue on cross-appeal: "Claimant is entitled to an order awarding medical expenses and the deputy erred in determining the prehearing order prevented him from making such an award." FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed March 27, 1990 are adopted as final agency action. CONCLUSIONS OF LAW The analysis concerning the issue of causal connection between claimant's current condition and his work injury contained in the arbitration decision filed March 27, 1990, is adopted herein. Although claimant clearly had preexisting back problems, those back problems were not disabling. The degenerative nature of claimant's back condition would have been apparent to his numerous doctors even without claimant relating his many years of chiropractic visits to his physicians. The work injury aggravated his preexisting back condition to the point where surgery was necessary, and claimant was unable to work. Although not the only cause of his present condition, and perhaps not the primary cause of his present condition, nevertheless claimant's work injury is a significant cause of his present condition. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. To establish compensability, the injury need only be a significant factor, not the only factor, causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Langford v. Kellar Excavating, 191 N.W.2d 667, 670 (Iowa 1971). Claimant has shown a causal connection between his work injury and his present back condition. The analysis contained in the arbitration decision in regard to the extent of claimant's disability is adopted herein with respect to all factors of industrial disability except claimant's age. In addition, that portion of the arbitration decision referring to claimant's ability to earn a living after his work injury as a factor of industrial disability is specifically not adopted herein. Claimant was 64 years of age at the time of the hearing. The approach of later years when it can be anticipated that under normal circumstances a worker would be retiring is, without some clear indication to the contrary, a factor which can be considered in determining the loss of earning capacity or industrial disability which is causally related to the injury. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Merrill v. Eaton Page 3 Corp., Appeal Decision, May 9, 1990; Barkdoll v. American Freight System, Inc., Appeal Decision, June 28, 1988. Claimant's loss of earning capacity as a result of his work injury is not as great as would be the case for a younger worker. It is also noted that claimant did not exhibit motivation to find alternative work. Based on these and all other appropriate factors for determining industrial disability, as set forth in the analysis section of the arbitration decision filed March 27, 1990, claimant is determined to have an industrial disability of 70 percent. Defendants also argue on appeal that apportionment for claimant's prior disability is appropriate. However, claimant was able to continue working at his job in spite of his back condition for many years. A prior condition that is not disabling is not subject to apportionment. Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991). The parties asserted healing period as an issue at the hearing. This issue was not addressed in the arbitration decision, as the deputy concluded that claimant was permanently and totally disabled and thus healing period was not appropriate. Because healing period was not awarded in the arbitration decision, it does not appear as an issue on appeal. However, in that claimant is awarded herein permanent partial disability, a determination of entitlement to healing period is necessary. Claimant's injury occurred on June 5, 1987. Claimant underwent his first surgery on July 24, 1987. On April 13, 1988, J. Michael Donohue, M.D., assigned a rating of permanent impairment. It appears that Dr. Donahue felt that claimant had not yet reached maximum medical improvement and that further surgery might be required, but that a rating was being given in the event claimant opted not to undergo surgery. However, claimant continued to complain of symptoms, and underwent surgery again on August 5, 1988. Although Dr. Hacker stated at his deposition in 1989 that claimant still had not reached maximum medical improvement, claimant appears to have actually reached maximum medical improvement earlier. Following surgery, claimant underwent a program of physical therapy that ended on October 15, 1988. Claimant's treatment essentially ended at that point, and further medical visits appear to be maintenance in nature. It appears that claimant actually reached maximum medical improvement at the conclusion of his physical therapy program. Claimant is entitled to healing period benefits from June 5, 1987 through October 15, 1988. As to claimant's medical expenses, the deputy who presided at the hearing ruled that since the hearing assignment order did not list this as an issue to be decided at the hearing, he could not consider it. As a deputy industrial commissioner does not have the authority to overrule a ruling by another deputy, and the hearing assignment order constitutes an order of a deputy, this determination was correct. However, the industrial commissioner on appeal does have the authority to overrule the hearing assignment order if good cause exists to do so. Page 4 It appears from the record that the parties did identify the medical benefits issue at the time of the prehearing conference as a contested matter between them. The parties also listed this issue in the prehearing report. Both parties conducted the hearing as though medical benefits were an issue, and evidence on this issue was put into the record. Defendants were not prejudiced or surprised by this issue at hearing, and in fact defendants agreed it was an issue at the hearing. Although the hearing assignment order is controlling on the question of what issues can be considered at a hearing, from a review of the record and the file, it appears that the absence of the medical benefits issue from the hearing assignment order was a mere scrivener's error. It was the obligation of the parties, upon receiving the hearing assignment well in advance of the hearing, to bring the omission of a contested issue to this agency's attention so that the hearing assignment order could be amended. This was not done. However, in light of the absence of prejudice to defendants, prohibiting consideration of this issue would work a manifest injustice to claimant. The issue of entitlement to medical benefits will be considered in this de novo review. Although properly raised as an appeal issue by claimant as cross-appellant, defendants have not addressed this issue in an appeal brief. Claimant requested, and received, authorization to consult Dr. Hacker. However, the authorization by defendants was limited to an evaluation, not treatment, and was conditioned on claimant seeking a second opinion from Dr. Donahue prior to any surgery recommended by Dr. Hacker. Claimant declined to travel to see Dr. Donahue, but instead sought a second opinion from an unauthorized Omaha physician. Claimant then underwent surgery by Dr. Hacker. Claimant's refusal to see Dr. Donahue for a second opinion was unreasonable. The distance involved was not prohibitive, and claimant would have been entitled to reimbursement for his travel expenses under Iowa Code section 85.27. Claimant's visit to the Omaha physician for a second opinion is clearly unauthorized, and the costs of that second opinion will not be awarded to claimant. The question remains whether the costs of the surgery and other subsequent procedures performed by Dr. Hacker are compensable. In that defendants conditioned their approval of Dr. Hacker upon a second opinion by Dr. Donahue prior to surgery, which did not take place, the surgery by Dr. Hacker was not authorized. However, unauthorized treatment which improves an employee's condition and which ultimately may mitigate the employer's liability may subsequently be found reasonable and necessary for treatment of an injury. Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (Appeal Decision 1983); Rittgers v. United Parcel Service, III Industrial Commissioner Report 210 (Appeal Decision 1982); Hutchinson v. American Freight Systems, Inc., I-1 Page 5 Iowa Industrial Commissioner Decisions 94 (Appeal Decision 1984). There is an indication that the surgery by Dr. Hacker was beneficial to claimant; there is no evidence it was medically inappropriate. The medical expenses of Dr. Hacker will be awarded to claimant. Claimant is not entitled to interest on unpaid medical benefits as such is not provided for in the law. WHEREFORE, the decision of the deputy is affirmed and modified. order THEREFORE, it is ordered: That defendants are to pay unto claimant healing period benefits from June 5, 1987 until October 15, 1988, at the rate of two hundred eighteen and 61/100 dollars ($218.61) per week. That defendants are to pay unto claimant 350 weeks of permanent partial disability benefits at the rate of two hundred eighteen and 61/100 dollars ($218.61) per week from October 16, 1988. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid. That defendants shall pay claimant's medical expenses, except as stated in the conclusions of law. Defendants shall pay the future medical expenses of claimant necessitated by his work injury. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of March, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Charles T. Patterson Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 Page 6 Mr. Frank T. Harrison Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 Page 1 1108.50, 1802, 1803, 1806, 2501, 2906 Filed March 31, 1992 Byron K. Orton MGT before the iowa industrial commissioner ____________________________________________________________ _____ : DONALD W. TESCH, : : Claimant, : : vs. : : File No. 860672 SIEH FARM DRAINAGE COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL CASUALTY : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1108.50 Deputy's determination that claimant's back condition was causally connected to his work injury affirmed on appeal. Although claimant had a long history of chiropractic treatments for back pain prior to his work injury, the condition was not disabling until the work injury. Claimant's failure to tell his treating physicians about the prior chiropractic visits was an incomplete history, but the record indicated that claimant's degenerative condition would have been evident to his physicians without claimant relating the history. 1803 Claimant's age of 64 is a factor tending to reduce his industrial disability. Claimant also showed poor motivation to find alternative work. However, claimant's low educational level and severe restrictions and loss of earnings indicated an industrial disability of 70 percent. Page 2 1806 Apportionment for claimant's prior back condition was not appropriate, as the condition was disabling. Citing Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991). 1802 Claimant's healing period held to end at the conclusion of his physical therapy sessions. Although one doctor testified that claimant had still not reached maximum medical improvement at the time of the hearing, the weight of the medical evidence indicated that this treatment was maintenance in nature, and that claimant's condition had stabilized. 2906 Deputy's determination that issue of medical benefits could not be considered in decision because not listed on hearing assignment order upheld on appeal. However, industrial commissioner exercised de novo power to consider the issue as the record showed that the omission of the issue from the hearing assignment order was mere oversight. Both parties listed the issue at the prehearing conference and in the prehearing report, and both parties offered evidence into the record on medical benefits. Defendants were not surprised or prejudiced, and denying the issue would have worked manifest injustice to claimant. 2501 Claimant requested an evaluation by Dr. Hacker. Defendants authorized the evaluation, but specifically did not authorize any surgery recommended by Dr. Hacker unless and until a second concurring opinion was obtained from defendants' doctor. Claimant declined to travel 100 miles to see defendants' doctor, and instead sought and obtained a second opinion from a doctor of his choosing. Held that the cost of the unauthorized second opinion would not be awarded, but the costs of the surgery would be awarded as the surgery appeared to improve claimant's condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD W. TESCH, Claimant, File No. 860672 vs. A R B I T R A T I O N SIEH FARM DRAINAGE COMPANY, D E C I S I O N Employer, F I L E D and MAR 27 1990 EMPLOYERS MUTUAL CASUALTY COMPANIES, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Donald W. Tesch against his former employer, Sieh Farm Drainage Company, and its insurance carrier, Employers Mutual Casualty Companies. The case was heard and fully submitted at Storm Lake, Iowa on September 11, 1989. The record in the proceeding consists of testimony from Donald W. Tesch, Bradley Miller, Veronica Eaton, Ronald Henningsen, and JoEllen Parrott. The record also contains claimant's exhibits 1 through 49 and defendants' exhibits A through F. The record is inordinately extensive as a result of duplication and inclusion of a great deal of material which has no bearing upon any of the disputed issues in the case. Both parties have flagrantly violated paragraph 10(2) of the hearing assignment order through the duplication of exhibits. ISSUES As defined by the hearing assignment order and prehearing report, it is stipulated that Donald W. Tesch sustained an injury on June 5, 1987 which arose out of and in the course of his employment with his employer. The severity of that injury is, however, disputed and issues exist with regard to the extent of claimant's entitlement to compensation for temporary total disability or healing period, permanent partial disability or permanent total disability. Causation is the major issue in the case. An issue also exists with regard to determining the correct rate of compensation. Claimant seeks to obtain an award for certain medical expenses. The medical expense issue was not identified on the hearing assignment order and the undersigned is therefore prohibited from entering any ruling in that regard. Since the undersigned is prohibited from making any ruling upon the section 85.27 expenses, it is likewise impossible to make any ruling concerning a credit under section 85.38(2) for those claimed expenses. SUMMARY OF EVIDENCE All the evidence referred to in the Introduction, as well as the demeanor of those who testified at hearing, was considered when deciding this case. The lack of a reference to any particular part of the record does not indicate that it was overlooked. Donald W. Tesch is a 64-year-old married man who lives at Milford, Iowa. Tesch dropped out of school after starting the eleventh grade in order to perform farm work. He entered the service in 1945 where he was trained in howitzers. While in the service, a finger on his left hand was amputated. After being discharged in 1946, Tesch commenced work for Bob Sieh, who was doing business as Sieh Farm Drainage. Tesch remained employed by Sieh Farm Drainage until 1987. From 1952 through 1956, Tesch farmed but still worked for Sieh on a part-time basis. Sieh Farm Drainage is a construction business which performs dirt work using heavy equipment and which also operates a gravel pit. Tesch had been a crew supervisor at one point, but in recent years had worked almost exclusively as a heavy equipment operator. As an operator, he was also responsible for performing routine maintenance and minor repairs on the equipment. The work has generally been characterized as being heavy in nature. Tesch has been diagnosed as having degenerative disc disease and has a long history of back problems. D. L. Anliker, D.C., reported that he has treated claimant since 1947 (exhibit 24). Records for that entire period of time were not introduced into evidence, but the records do show that claimant received 18 chiropractic treatments in 1981, 17 in 1982 and 1983, 12 in 1984, 10 in 1985, and 13 in 1986. In 1987, claimant had received 4 chiropractic treatments prior to the date of injury. A report of leg pain is shown in treatment records for June 4, 1987 affecting claimant's left leg. A treatment record dated May 6, 1985 reports pain in claimant's right leg. Leg pain is also reported in entries dated November 19, 1984, March 9, 1984, January 7, 1983, and May 8, 1982. The records reflect that in 1972 claimant was provided with a lumbosacral belt (exhibit A). The treatment notes show numerous complaints of low back pain and other back pain complaints over the years. Claimant stated that at times he would seek chiropractic treatment, quite often because it felt good, but that he was not really having problems. Bradley Miller, one of claimant's former coworkers at Sieh Farm Drainage, stated that at times claimant would miss short periods of work due to his back and that at times it was evident that claimant's back was bothering him. Donald Tesch also has a long history of breathing difficulties. The Spencer Family Practice Center records show several visits in 1986 for bronchitis. Dr. Anliker's records contain several references to asthma. Claimant fractured one of his arms in 1984. In 1985, a crane rolled over and claimant sustained injuries which were diagnosed as a fracture of the left fibula, paravertebral muscle spasm in the lumbar and thoracic spine, a left knee knee sprain and a tear of the right knee medial meniscus (exhibit A). Claimant was off work for a period of time as a result of the 1985 injury. Claimant stated that no doctor imposed any restrictions on his activities following recovery from those injuries and that the medical treatment did not involve any real treatment for his back condition. Tesch stated that he performed the same work as he had previously done following his return to work in 1985 until June of 1987. Claimant's gross pay was $750.00 paid bimonthly. It had been the practice of Sieh Farm Drainage Company to pay an annual bonus to employees. The bonus was normally paid between Christmas and New Years Day. The size of the bonus varied according to whatever the owner of the business selected. If the company had done well, the employees also did well in the amount of the bonus. Jim Sieh stated that normally a bonus was paid every year (exhibit 49, pages 21-24; exhibit 1). Exhibit F shows that claimant had received bonuses during 1981, 1982, 1983, 1984 and 1985. The largest was $13,300 which was paid in 1982. The smallest was $2,500 which was paid in 1985. Claimant did not receive any bonus in 1986 or 1987. According to Jim Sieh, claimant would probably have received a quite substantial bonus in 1987 if he had still been employed and if the practices of former years had been followed. On or about June 5, 1987, claimant was working at the gravel pit performing mechanical work on a dragline. He slipped off the track and fell approximately three feet to the ground. Claimant described feeling pain in his back. At lunch time he sought treatment from Dr. Anliker without success and then went home and lay on ice. Claimant stated that he tried for several weeks to continue working. As part of his routine he would lie on ice before work, at noon and after work, but that he did not get better. He stated that pain started shooting down his legs in a manner that had never occurred previously. Claimant stated that he went to Dr. Anliker, then to another chiropractor. Claimant stated that his condition worsened and he then was referred through his family physician to orthopaedic surgeon William Follows, M.D. Dr. Follows felt that claimant probably had lumbosacral disc herniation (exhibit 23). Upon a recommendation from his daughter, Veronica Eaton, Tesch entered into treatment from John L. Greene, M.D., an Omaha, Nebraska neurosurgeon. Dr. Greene diagnosed claimant as having a herniated disc and on July 24, 1987 a laminectomy was performed. The operative report indicates that Dr. Greene found a large, soft herniation and removed a large amount of herniated and degenerative disc material (exhibits 17 and 18). Following recuperation from the surgery, claimant was placed into a rehabilitation program under the direction of orthopaedic surgeon,J. Michael Donahue, M.D. Dr. Donahue initially indicated that claimant was deconditioned and recommended a rehabilitation program. Claimant initially made some improvement, but his participation in the program was compromised by claimant's pulmonary problems. Dr. Donahue and Jean Eichmeier, the rehabilitation consultant who was assisting claimant, both recommended that claimant obtain treatment for the pulmonary condition. Claimant was then treated by Linda B. Ford, M.D. Dr. Ford found claimant to be allergic to a number of substances and under her treatment his pulmonary function improved markedly (exhibit 20). Claimant returned to the rehabilitation program, but made no significant improvement. Dr. Donahue observed some new symptoms when he examined claimant on March 7, 1988. Despite the treatment from Dr. Ford, Dr. Donahue concluded that claimant was unable to aggressively pursue the rehabilitation program due to his pulmonary problems (exhibits 19, 31, 32 and 33). On April 13, 1988, Dr. Donahue reported that claimant had reached maximum medical improvement. He rated claimant as having a 14 percent impairment of the body as a whole attributed to the June 4, 1987 accident. Dr. Donahue imposed activity restrictions which included a 30-pound maximum lifting limit, avoidance of repetitive bending or lifting and avoidance of prolonged sitting or standing. Claimant stated that Dr. Donahue had recommended that he undergo further surgery. Claimant stated that he was doing well in the rehabilitation program until he got into a machine that made him bend. Claimant stated that he did not then want more surgery. Claimant stated that by the summer of 1988, his condition was nearly as bad as it had been prior to the first surgery and he requested authorization to see another physician from JoEllen Parrott, the rehabilitation consultant who replaced Jean Eichmeier in approximately February of 1988. Authorization was obtained for claimant to have an evaluation performed by Robert J. Hacker, M.D., an Omaha neurosurgeon. A CT scan was performed which showed only post-operative changes, but a myelogram confirmed nerve root entrapment on the right side at L4-5. Dr. Hacker indicated that he thought it was due to degenerative disc disease with lumbar spondylosis (exhibit 6, pages 5 and 6). On August 5, 1988, the day following the myelogram, Dr. Hacker performed surgery during which it was found that the L5 nerve root was distorted by a bulging disc at L4 within the confines of the lateral recess which was narrowed by thickening of the medial portion of the facet joint (exhibit 8, pages 10 and 11; exhibit 6, page 7). Following surgery, claimant initially showed a great deal of improvement. He was then placed into a course of physical therapy under the direction of Frank P. LaMarte, M.D. Dr. LaMarte felt that claimant was deconditioned and recommended a 12-week physical rehabilitation program. Claimant attended physical therapy under the direction of Kenneth D. Van Wyk, L.P.T., from September 12, 1988 through October 15, 1988 (exhibit 46). Claimant stated that the therapy had seemed to be beneficial. In early 1989, claimant entered physical therapy under the direction of Dr. LaMarte. Claimant stated that the program was similar to what Dr. Donahue had provided, that the same problems recurred as had previously and that his condition worsened (exhibit 12). Donald Tesch testified that before the injury which is the subject of this action, there was nothing which he could not do. He stated that now he is unable to operate a self-propelled lawn mower. He stated that he has tried to take his boat out onto the lake, but that when he does he pays for it. He stated that in general, he is okay if he stays down, but that if he does anything it exacerbates his symptoms. Claimant stated that on a typical day, he lies down at noon and again at 4:00. Claimant stated that for exercise he rides an exercise bicycle 12 minutes each morning. Tesch stated that he has not looked for work because he could not work a full day. He stated that he used to hire and fire people and would not hire someone like himself for anything. Tesch stated that the rehabilitation consultants have not directed him into any type of job. He has been awarded Social Security disability benefits which provide him $759 per month. Claimant has been evaluated by David J. Boarini, M.D., a Des Moines neurosurgeon. Dr. Boarini rated claimant as having a 6-8 percent permanent impairment, most of which he attributed to claimant's degenerative condition, although he felt that the fall of June 5, 1987 probably aggravated that condition somewhat (exhibit B, pages 16-18). Dr. Boarini recommended that claimant avoid repetitive bending and that he lift no more than 50 pounds or 25 pounds repetitively (exhibit B, pages 19 and 20). When Dr. Boarini examined claimant on May 8, 1989, he felt that claimant needed no further medical treatment and he expected no change to occur in claimant's condition (exhibit B, pages 19, 20 and 29). When he performed his physical examination, Dr. Boarini found claimant to have normal strength in his legs, normal knee and ankle reflexes, a normal straight leg raising test and slightly limited range of spinal motion (exhibit B, pages 9-12). Dr. Boarini attributed the majority of claimant's symptoms and problems to his long-standing degenerative condition rather than to the 1987 injury. Dr. Hacker, when deposed on May 8, 1989, stated that he had initially felt that claimant would be able to return to work following the surgery, but that he now sees a prolonged course of total disability which may possibly become permanent. Dr. Hacker stated that in view of the deterioration which claimant had recently experienced, the impairment rating he had previously given would change (exhibit 6, pages 18-20). Dr. Hacker felt that claimant may need a fusion in the future and had not yet reached maximum medical improvement (exhibit 6, pages 17 and 18). Dr. Hacker reported that claimant's L4 disc herniation problems all relate to the fall which occurred in 1987 (exhibit 6, pages 9-11). Claimant was evaluated by H. Randall Woodward, M.D., on May 16, 1989. Dr. Woodward reported that claimant's low back pain may be due to instability at the L4-5 level either as a result of the injury, degenerative changes, surgery or a combination of all of those factors. Dr. Woodward found claimant to be neurologically intact (exhibit 4). On June 28, 1989, Dr. Woodward reported that claimant has been getting relatively good results by treating with medication, but that he has not achieved a normal level of activity. Dr. Woodward also stated that surgical stabilization may possibly be indicated in the future. Dr. Woodward assigned claimant a 15 percent permanent impairment rating and stated that his work activity level should be in the light category. Dr. Woodward went on to state that since claimant did not report significant problems prior to the June 4, 1987 injury and has had significant problems since that date, it was his opinion that the injury of June 4, 1987 caused a significant aggravation of a preexisting condition (exhibit 5). Rehabilitation consultant Jean Eichmeier stated that when she discontinued work on claimant's case in February of 1988, claimant was not capable of working and that vocational placement was not then indicated (exhibit 48, pages 35 and 46). Vocational consultant JoEllen Parrott stated that it would be difficult, though not impossible, to place claimant in a job with some employer other than Sieh Farm Drainage Company. Bob Sieh stated that there might possibly be work for claimant if claimant were physically capable of performing it and that part-time work could be a possibility. Veronica Eaton, claimant's daughter, is currently a paralegal but has previously been a claims manager for Aetna Insurance Company where she handled workers' compensation cases. Eaton stated that while working in the insurance industry, she formed impressions concerning which physicians she would want to treat her and her family and that she selected Drs. Greene and Hacker for her father. Ronald Henningsen, publisher of the Omaha Daily Record, has a summer home next door to claimant's at Milford, Iowa. Henningsen stated that claimant's condition has deteriorated since September of 1987. He stated that claimant requests assistance in performing activities and that he has seen claimant lie on the floor. Henningsen stated that claimant appears to be in pain. He did not know of any gainful employment which claimant could perform. Claimant's history as given at Nebraska Methodist Hospital contains a denial of any prior back problems (exhibit A). APPLICABLE LAW AND ANALYSIS 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). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Aggravation of preexisting condition is one form of compensable injury. 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 500, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). A cause is proximate if it is a substantial factor in bringing about the result. It need not be the only factor. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Causation is the pivotal issue in this case. From the evidence submitted it is abundantly clear that Donald W. Tesch has had a long history of back problems. He presented as a quite stoic individual at hearing. His employer considered him to be a good, dependable employee. The rehabilitation consultants and Dr. Donahue all indicated that claimant had been very cooperative and had made a genuine effort to recover. These factors all corroborate the quite credible demeanor which claimant exhibited at hearing. On the other hand, the medical history which claimant has given to the various physicians has often omitted his years of chiropractic treatments. It is remarkable to note that the record of this case does not contain any reference to claimant obtaining treatment, other than chiropractic, for his back prior to June 4, 1987. Some back complaints are noted following the 1985 accident, but the records in evidence contain no indication of active medical treatment of claimant's back following that incident. According to claimant, he had obtained chiropractic treatments primarily because they felt good, rather than because of any particular severe problem. The records in this case do note leg complaints prior to June of 1987. It is found that Donald W. Tesch did have back and leg pain prior to the June 5, 1987 accident. (The undersigned believes that the actual date of injury was June 4, 1987, rather than June 5, 1987 in view of Dr. Anliker's treatment notes, but the stipulated injury date will not be disturbed.) Prior to the injury, Donald Tesch had not been subjected to surgery. No physician had recommended any particular activity restrictions. He had been fully employed as a heavy equipment operator and seldom missed work for his back condition despite the heavy nature of his job. Claimant's back condition was of long-standing duration, more than 30 years. It was a chronic problem which had occasional exacerbations. Prior to the incident of June 1987, Donald Tesch had always recovered from the exacerbations in a relatively short period of time. The injury of June 5, 1987 changed the long-standing pattern which Donald Tesch had experienced. The trauma which Tesch sustained would not normally be thought of as being particularly severe. For a person with a normal spine, it would not be a source of injury. For a person with a degenerative condition, the results could easily be more serious. After the June 5, 1987 injury, claimant did not recover with chiropractic treatment. He has undergone two spinal surgeries and three attempts at physical rehabilitation, but remains seriously impaired. The chronological order of events which has occurred indicates the existence of a causal connection between that June 5, 1987 injury and the disability which currently afflicts Donald Tesch as,a result of the condition of his back. Drs. Donahue, Hacker and Woodward have all expressed the opinion that the fall of June 5, 1987 is a cause for claimant's current back complaints. Dr. Woodward characterized it as an aggravation of a preexisting condition. The medical histories, however, upon which those three physicians were apparently relying did not contain any indication of claimant's long history of chiropractic treatments and back problems. It is also expected, however, that all three of those physicians would have recognized the degenerative condition in claimant's spine. Drs. Hacker and Woodward clearly referred to it in their notes and records. Claimant's failure to relate his history of chiropractic treatment and prior back difficulties is not perceived by the undersigned to have concealed his degenerative condition from the doctors who have treated him. They may not, however, have been aware of the symptoms which claimant had experienced prior to June of 1987. When it is considered that the symptoms had not generally been disabling prior to June of 1987, it is determined that claimant's failure to relate those symptoms to the physicians does not render their opinions regarding causation invalid. The opinion expressed by Dr. Boarini regarding causation is not inconsistent with that expressed by the other physicians. Clearly, claimant's degenerative condition is the primary factor responsible for his current state of disability. If that condition did not exist, the fall of approximately three feet from the crane in June of 1987 would probably not have produced any injury. In view of the preexisting condition, however, the fall was quite injurious. It is therefore determined that the fall of June 4 or June 5, 1987 is a proximate cause of claimant's current back condition. It is not the major cause, but it is the triggering event which caused his previously tolerable degenerative condition to become so intolerable as to require him to cease work, seek treatment from medical doctors and undergo surgery. The injury is clearly an aggravation of a preexisting condition. Since that event, he has never been able to regain sufficient physical capacity to enable him to resume any work which is even marginally similar to that which he has performed throughout his working life. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co. 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basis element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Donald Tesch is 64 years of age. Even if it were not for his June 1987 injury, his age and degenerative condition would have likely led to the end of his active work life at some point in the not too distant future. Retirement exists because the human body will eventually wear out through normal wear and tear, even without any particular identifiable trauma. At this point in time, Donald Tesch does not appear to have sufficient residual earning capacity to be self-supporting. From an industrial standpoint, his age, education and work experience does not give him access to any known jobs. The fact that his only realistic hope of employment would be an accommodated position with his former employer clearly shows that he is severely disabled. Claimant has not sought work and therefore he cannot rely on the odd-lot doctrine in view of the precedent which has been established by this agency. Brown v. Nissen Corp., file number 837608 (App. Decn. November 30, 1989; Emshoff v. Petroleum Transp. Servs., file number 753723 (App. Decn. March 31, 1987). In this case, however, it is not necessary to rely on the burden of proof shifting mechanism of the odd-lot doctrine. When all factors considered in evaluating industrial disability are taken into account, it is determined that Donald W. Tesch does not have sufficient earning capacity to earn a living for himself. His disability is therefore total disability. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 182 (Iowa 1980); Diederich v. Tri-City R., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). In view of Tesch's preexisting condition, it is abundantly clear that he had physical impairment and disability prior to June of 1987. The record contains no ratings for that impairment, however. When disability is to be apportioned, the burden of showing the extent of the preexisting disability rests upon the party who contends that there was preexisting disability, in this case defendants. Varied Enterprises. Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson Workmen's Compensation Law, section 59.22. In this case there is evidence, though not absolutely compelling, that Donald Tesch had some degree of preexisting industrial disability prior to June 5, 1987. Tesch is now permanently and totally disabled. Where total disability results, there is no practical means of apportioning out whatever degree of disability preexisted. Workers' compensation permanent total disability benefits are paid for life because the disability exists for life. Workers' compensation benefits are a statutorily created alternative to tort damages. It would leave a glaring gap in the entire benefit structure if a totally disabled person were required to wait for permanent total disability compensation weekly benefits to commence in order to offset whatever amount of partial disability had preexisted the current injury. Permanent total disability compensation is paid because the person is unable to earn sufficient wages to be self-supporting. Any construction of the statutes which imposed a waiting period or offset would result in a period of time when the injured worker would be destitute absent assistance from public welfare programs or beneficent parties. The undersigned concludes that the better construction of the statute is the one which provides compensation for the periods of time it is needed. In this case, that is the entire period of the disability. In view of the fact that an award of permanent total disability is made in this case, there is no need to determine a specific healing period or periods. The record of this case shows that claimant was paid $750.00 bimonthly. His pay also normally included an annual benefit which has been referred to as a "bonus." The bonus does not appear to have been irregular in the sense that the bonus was an annual expected event, even though the amount of the bonus was entirely discretionary with the owner of the business. In this case, it could reasonably be asserted that claimant's pay was computed on a two-level system. One part was the bimonthly salary of $750.00. The second part was on a yearly pay period basis which was somewhat in the nature of profit sharing. In this case, it does not matter, however, because claimant did not receive any bonus in 1986, the last full year that he worked. While others did receive a bonus for 1987, there is nothing in the record which would have required that claimant be paid a bonus even if he had worked all of 1987. It was entirely discretionary. For these reasons, claimant's rate of compensation is based only upon his $750.00 bimonthly salary. Under Code section 85.36(3) or (4), claimant's gross weekly wage was $346.15. When applied to the 1986 benefit schedule, claimant, being married with two exemptions, would be entitled to a rate of compensation which is $218.61 per week. FINDINGS OF FACT 1. The injury which claimant sustained on June 5, 1987 when he fell is a substantial factor in producing the disability which currently afflicts him as a result of the condition of his back. 2. The injury was an aggravation of a preexisting degenerative condition. 3. The-preexisting condition is the major factor in producing the current disability, but the fall triggered the onset of the disability. 4. Donald Tesch is a credible witness with regard to his description of his current symptoms and complaints, his current abilities and the effect that the preexisting condition had upon him prior to June of 1987. 5. Donald W. Tesch does not have sufficient residual earning capacity in order to earn a living to support himself due to the condition of his back. 6. Claimant's gross weekly earnings are $346.15. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury Donald Tesch sustained on or about June 5, 1987 is a proximate cause of the disability which currently afflicts him in view of the condition of his back. 3. Donald W. Tesch is permanently totally disabled within the provisions of Iowa code section 85.34(3). 4. Claimant's rate of compensation is $218.61 per week. ORDER IT IS THEREFORE ORDERED that defendants pay Donald W. Tesch compensation for permanent total disability at the rate of two hundred eighteen and 61/100 dollars ($218.61) per week payable commencing June 27, 1987. Defendants are entitled to credit for all weekly compensation previously paid and shall pay all compensation which is accrued but unpaid to the date of this decision in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 as follows: Cassel, Inc. deposition of Jim Sieh $186.00 Cassel, Inc. deposition of Jean Eichmeier 328.50 Blair & Assoc. - deposition of Dr. Hacker 130.83 Dr. Woodward - medical report 45.00 Dr. Hacker - expert witness fee 150.00 Filing fee 65.00 Total $840.33 IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of March, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Charles T. Patterson Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Mr. Frank T. Harrison Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue. Des Moines, Iowa 50312 1108.50, 1402.30, 1403 1404, 1702, 1804, 1806 2206, 3001, 4100 Filed March 27, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD W. TESCH, Claimant, vs. File No. 860672 SIEH FARM DRAINAGE COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL CASUALTY COMPANIES, Insurance Carrier, Defendants. 1108.40, 1402.30, 2206 Causal connection found to exist even though the preexisting condition was the major cause of the current state of disability. 1403, 1404, 1702, 1804, 1806, 4100 Claimant awarded permanent total disability. It was held that preexisting disability cannot be apportioned consistent with the intent of the statute where total disability is the end result. 3001 Where a major part of the income of the employee had typically been an annual bonus of several thousand, there was no consideration of the bonus in computing the rate of compensation since payment of a bonus was entirely discretionary with the employer and no bonus had been paid for the year preceding the year in which the injury occurred. 5-1801; 5-2500; 5-1803 Filed October 3, 1991 BYRON K. ORTON MAM before the iowa industrial commissioner ____________________________________________________________ : CRAIG D. REMSBURG, : : Claimant, : : vs. : : File No. 860994 AMERICAN NATIONAL CAN CORP.,: : A P P E A L Employer, : : D E C I S I O N and : : GALLAGHER BASSETT SERVICES,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801; 5-2500; 5-1803 Claimant proved entitlement to temporary total disability benefits and medical benefits. Claimant failed to prove entitlement to permanent partial disability benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CRAIG D. REMSBURG, : : Claimant, : : vs. : : File No. 860994 AMERICAN NATIONAL CAN CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GALLAGHER BASSETT SERVICES, INC.,: : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Craig D. Remsburg, against his employer, American National Can Corporation, and its insurance carrier, Gallagher Bassett Services, Inc., defendants. The case was heard on February 21, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant and the testimony of Marvin Huzen, program manager. Additionally, the record consists of claimant's exhibits 1-32 and defendants' exhibits A-F. issues The sole issues to be determined are: 1) whether claimant received an injury which arose out of and in the course of employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; 4) whether claimant is entitled to medical benefits under section 85.27; and 5) whether claimant is entitled to penalty benefits under section 86.13. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant was born on May 11, 1963. He commenced his employment with defendant-employer on June 8, 1981. In November of 1987, claimant was a press helper. His duties included filling tanks of solvents, keeping press rollers clean, filling press decks with solvents, and removing ink. During this time period, claimant worked 8 to 12 hours per Page 2 day, 6 to 7 days per week. Claimant wore latex gloves during work. The gloves extended to the middle of his forearm. He also wore safety glasses but they were without splash guards. On a daily basis, claimant came into contact with various solvents. Material Safety Data Sheets were available on site. On November 5, 1987, claimant was told to clean the parts washer. He had never performed this task before. The washer was made of cast iron and was 12 feet x 4 feet by 3 feet deep. It was designed to hold solvents for cleaning anything greasy, inky, and thick substances which could not be cleaned by hand. Often sledge would build up in the bottom of the washer. Claimant described the sludge as ink, dirty solvents, and other materials. He reported that while he was cleaning, he experienced a bad taste in his mouth. The company nurse removed claimant from the parts washer room, after he appeared light headed. Claimant contacted James Blessman, M.D. Claimant indicated he had been nauseated, he had a headache but he was not dizzy. Dr. Blessman ordered oxygen for 30 minutes. He diagnosed claimant's condition as "acute chemical exposure, hydrocarbons, and solvents." The medical exam was essentially unremarkable. Claimant returned to work on the following day. Later, he reported to Dr. Blessman that his symptoms increased when he returned to the workplace. Claimant was again removed from the work setting. He returned to work on December 3, 1987. He worked approximately one week. A report was issued by Kevin F. Smith, M.D., on January 4, 1988. Dr. Smith opined that: In direct response to your letter, it is my impression that this patient had acute organic solvent exposure and his continued subjective complaints have not been verified by objective findings. His medical work-up to date has been unremarkable. In regard to the respirator prescribed for the patient, it was adequate to fil ter out organic solvents. In fact, with the fit test the patient was not able to identify organic solvents as well as exposure to ammonia. Also, I am under the impression that there is no apparent causal relationship between the patient's ongoing subjective complaints and his exposure on ll-5-87, and the patient does not have any permanent disability from his acute exposure. I feel that he reached his maximum medical recuperation on December 3, 1987 and at that time was returned to regular duty. Patient started work without any re aggravation [sic] or symptomatic complaints. On January 11, 1988 I talked with the company. The patient had some complaints regarding exposure Page 3 to starch as if that would re initiate [sic] his symptomatic complaints and I do not believe there is an apparent association between his starch exposure and his symptomatic complaints. My recommendation for this patient is that he can return to regular work without any restriction and if necessary, a respirator with organic solvent canisters would be made available to him. Dr. Blessman and Dr. Smith referred claimant to Mark E. Thoman, M.D., a board certified physician in clinical toxicology. Dr. Thoman saw claimant on more than 14 occasions. He diagnosed claimant's condition in his report of January 20, 1988. The physician wrote: This letter will confirm that I have completed my initial review of the information regarding Craig Remsberg [sic] After carefully reviewing Craig's medical records and the toxicological literature available, it is my opinion as a board-certified clinical toxicologist, and to a reasonable degree of medical probability, that Craig Remsberg [sic] suffers from a toxic exposure to industrial solvents and petroleum products while employed at American National Can. Attached please find copies of my findings during the examination and subsequent laboratory work. These findings enable us to rule out any other organic cause for his symptomatology. Craig has attempted to return to work without much success. If he is able to return to work, it is my sincere recommendation that he do so for one to two hour periods per day and gradually increase the time as he is able to tolerate it. It is imperative that his environment be as free of industrial solvents and petroleum products or by-products as possible to avoid further exacerbation of his present signs & symptoms. It is also important that Craig carefully monitor his health status throughout the future for any delayed or cummulative [sic] effects of the exposure. He will be more sensitive to all chemicals and will most likely be more susceptible to infection. A logical component of any toxic exposure is Post Traumatic Stress Syndrome. Craig may need emotional support such as counselling to help him cope with the necessary adjustments in his lifestyle. Later, Dr. Thoman opined: It is my opinion as a board-certified clinical Page 4 toxicologist, and to a reasonable degree of medical probability, after carefully reviewing Craig Remsburg's medical records and the toxicological literature; that he suffers from a toxic exposure to industrial solvents and petroleum products while employed at American National Can. Copies of my findings during his physical exam and laboratory work are enclosed. These findings enable us to rule out any other organic cause for his symptomatology. Craig has attempted to return to work only to experience a return of his symptomatology. It was our recommendation that he return to work for short periods of time on a trial basis. He has been unable to return to work without experiencing symptoms. It is imperative that his environment be as free of industrial solvents and petroleum products as possible to avoid further exacerbation of his present signs and symptoms. It is important that Craig's health status be carefully monitored in the future for any delayed or cumulative effects of the exposure. He will be more sensitive to all chemicals and will most likely be more susceptible to infection. Claimant was released to return to work in the Saran Department. Restrictions were imposed by defendant-employer. They were outlined as follows: Craig Remsburg Clock #2008 For return to work Sunday, February 14, 1988- C Shift (11:00 PM - 7:00 AM): DEPARTMENT: Saran JOB: Utility Person RESTRICTIONS: You will be restricted to the Saran Department until further notice. Due to its proximity to the east end of the building where the employee entrance is located, you will not have need (nor be allowed) to enter any other parts of the plant. The Saran Department has restrooms and a lunchroom with microwave oven. You need to either bring your own beverage, or plan to have same purchased by a coworker from the main lunchroom for you. If you wish to visit the main office area while you are at work, you need to secure your supervisor's permission to leave your department (a normal requirement anyway) and enter from outside the building through the office front door. All of the above restrictions are imposed for your Page 5 protection and accomodation [sic] at this time to keep you from the discomfort of fumes and/or odors generated by the Press Department. You will not be required to wear a respirator in the Saran Department. Claimant worked eight hours on February 16, 1988. That was the last day he worked for defendant-employer. Claimant did not work again until December of 1988 when he began working in the construction field for his father. Claimant was examined and evaluated by several other experts. Todd F. Hines, Ph.D., P.C., performed a psychological evaluation on March 13, 1989. Dr. Hines wrote in his report of March 17, 1989: The patient describes a work-related exposure to toxic chemicals which occurred in November of 1987. Although he reports multiple efforts to return to work in the interim, he indicates that he has essentially been unable to achieve a successful return to the work place [sic] and he states that he has no idea of what kind of work he could do or whether he will be disabled for the rest of his life. Mr. Remsburg complains of headache, stomach ache, nausea, dizziness and fatigue which arise with his exposure to many different sources of fumes. He suggests that he cannot tolerate heights because of concern that he might lose consciousness. He denies all history of similar symptoms prior to 1987, with the exception of juvenile asthma which resolved early in his life. He indicates that he can be symptom free for long periods in the absence of exposure to specific fumes. He reports occasional sleep disturbance with no clear causation, fluctuations of appetite with a weight loss presently giving way to weight gain and some changes in sexual performance. He describes cognitive changes in concentration and memory. He denies depression, anxiety and all other forms of emotional disrup tion. He denies all other sources of stress in his life. He indicates that he saw a counselor briefly in 1988 for post-traumatic stress. The evaluation data reflect a clinically significant level of depression, along with a modicum of anxiety and a strong sense of alienation. Emotional responses tend to be labile, rising and falling with both intensity and rapidity. There is a core of anger which most likely serves to take some of the edge off the intropunitive depressive reactions by allowing the feelings to be externalized and directed toward others. However, self esteem and self confidence appear to be significantly low but sometimes masked by a patina of bravado. There may well be unmet dependency needs which undercut effective Page 6 problem solving and the initiation of autonomous behaviors. Coping skills appear generally weak. Denial and repression are utilized as primary emotional defenses. There is a strong focus upon somatic functioning and it is quite possible that physical symptoms are caused or aggravated by the discharge of emotional turmoil through somatic anomaly. There is no evidence of malingering or of the conscious manipulation of symptom presentation but elements of secondary gain could be reinforcing the continuing problems. It is my recommendation that a more complete psychological study be done and that the possibility of psychotherapeutic intervention be considered. David D. Sampel, Ph.D., conducted a psychological evaluation on August 29, 1988. The psychologist determined: Memory Test: Craig was given the Wechsler Memory Scale, Form I. This is a series of seven different tests designed to assess different aspects of memory. Craig had a memory quotient of 116. This would indicate that he is in the high average range on the Wechsler Memory Scale, Form I. On the subtest scales he was average or above average in all tests except digit forward. In this particular test he was slightly below average. The Page 7 results of this test would indicate that Craig's memory functioning appears to be quite good at this time. CONCLUSIONS: Craig is functioning in the average range of intelligence on the WAIS-R. He is functioning in the high average range on the Wechsler Memory Scale, Form I. Craig said he has had some problems with toxic overdose and has problems with getting sick and having stomach aches. He also said he gets tired easily. If he were to be awarded benefits, he would be able to manage these benefits. From a psychological perspective it would appear as though Craig is capable of doing some sort of routine repetitive task. Additionally, claimant was examined by Martin R. Aronow, D.O., a specialist in cardiology and internal medicine. His examination was negative for evidence of myocardial ischemia. Greg Hicklin, M.D., a specialist in pulmonary disease, disagreed with the opinions of Dr. Thoman relative to claimant's condition. Dr. Hicklin, in his report of April 5, 1989, opined: I believe that Craig Remsburg is a basically healthy young man. He has mild bronchial asthma which is asymptomatic and dates back to childhood. He is not currently impaired or limited in any way on a medical basis. He should be able to return to any job, including [sic] The event of November 1987 has caused Mr. Remsburg a great amount of unnecessary worrying and concern. I believe the worrying, concern and rumination about his problems has led to a great deal of fear and anxiety over odors which he smells and this in turn results in the vague symptoms of headache and stomach pain. I do not feel the toxic fumes or any fumes have caused this problem but rather his over concern about his perceived condition. I certainly do not see any limitation now and feel that he may return to work. In his report of January 18, 1990, Dr. Hicklin further opined: I have read a letter from Dr. Mark Thoman concerning Mr. Craig Remsburg. I disagree with Dr. Thoman [sic] conclusions, specifically in the following areas: 1) I see no evidence of a chemically induced Page 8 alteration in Mr. Remsbuerg's [sic] immune system. He has not suffered from increased infections or other disorders contributable to alterations in his immune system. 2) I do not feel that a change in climate would decrease Mr. Remsburg's susceptibility to infections nor do I feel that he is limited in his ability to work in outside ambient temperatures. There is no reason to believe that decreases in ambient temperatures would make Mr. Remsburg more susceptible to breathing problems or respiratory tract infections. In reviewing the references from Dr. Thoman in the book, Toxicology, by Klaassen, Amdur, and Doull; I see no references to TCE, initiating abnormalities in the immune system. In summary, I believe that Mr. Remsburg could have returned to work after seeing Dr. Smith following his initial exposure. I also believe that Mr. Remsburg is not now nor ever has been disabled and capable of working in Iowa at any job. Claimant worked for Dougherty Construction for 2 1/2 to 3 months starting in December of 1988. He was able to perform his job duties. He also worked for S & M Sanding for 5-6 months but he voluntarily terminated his position because of dust. At the time of the hearing, claimant was unemployed. However, defendant-employer was ready, willing and able to return claimant to work at its plant. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 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). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). Page 9 "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupa tional disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 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 Page 10 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 Hardward, 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). The requisite causal connection must be found even in cases involving chemical exposures. Dickenson v. John Deere Product Engineering, 2 Ind. Comm. Decisions 316 (1984), Bogge v. Wilson Foods, 2 Ind. Comm. Decisions 441 (1984). In the case at hand, there is absolutely no question that an incident occurred while claimant was working on November 5, 1987. Claimant was performing his assigned duties in the parts washing room. He became lightheaded, nauseated and confused. Claimant was not wearing a respirator and was eventually removed from the work site. The company nurse rendered first aid, including oxygen. Claimant was sent by taxi cab to Dr. Blessman, the company doctor. Chemical screening and CBC were done. The results were normal. Claimant was sent home. He was off work for a period of time. Further monitoring was performed. The monitoring included repeated blood tests, a pulmonary function test, EKG, chest x-ray and treadmill test. The tests were unremarkable. Claimant was in the normal range. No objective evidence demonstrated exposure to hazardous materials from the workplace. In the case before this division, claimant failed to prove that his alleged condition was causally related to the incident on November 5, 1987. Claimant testified he was removing sludge from the parts washer on the day in question. The sludge components were not identified. While Material Safety Data Sheets were admitted as evidence, there was no evidence that any of the chemical substances listed on the MSDS' were present in the sludge on November 5, 1987. No sample results were introduced at hearing. Nor was any testimony elicited from any person as to the chemical composition of the sludge. At best, there was the testimony of claimant that the washer contained, "inks, dirty solvents and whatever else was washed there." Even Dr. Thoman, claimant's physician, testified in his deposition that he did not know how much of each chemical claimant was exposed to, or the duration of that exposure. Furthermore, claimant's chemical screening and CBC revealed normal testing results. The screenings do not indicate exposure to hazardous chemicals. Page 11 As a consequence, this deputy is unable to determine that the sludge contained any harmful chemicals or that the chemicals, if present on November 5, 1987, caused claimant's alleged condition. The only evidence presented was the subjective complaints of claimant. No other test results supported claimant's allegations. THEREFORE, it is the decision of the undersigned that claimant has failed to meet his burden of proof that he was injured or that his alleged condition was the result of the incident on November 5, 1987. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing further from these proceedings. Each party shall pay its own costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of January, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Stephen D. Lombardi Attorney at Law 2190 NW 82nd Des Moines IA 50325 Mr. E. J. Kelly Mr. Jeff M. Margolin Attorneys at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 1108.30; 2205 Filed January 18, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : CRAIG D. REMSBURG, : : Claimant, : : vs. : : File No. 860994 AMERICAN NATIONAL CAN CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GALLAGHER BASSETT SERVICES, INC.,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.30; 2205 Claimant failed to causally relate his alleged condition to an incident which occurred on November 5, 1987. Claimant was performing his assigned duties in the parts washing room. He became lightheaded, nauseated, and confused. He was not wearing a respirator and was eventually removed from the work site. All tests results were normal. No objective evidence demonstrated any exposure to hazardous chemicals. Claimant testified there was sludge in the parts washer. The sludge components were not identified. While MSDS were admitted as evidence, there was no evidence that the chemical substances tested on the MSDS were present in the sludge. Nor was any testimony elicited as to the chemical composition of the sludge. At best, claimant testified there were present "inks, dirty solvents and whatever else." EWING V. IOWA POWER & LIGHT Page 1 before the iowa industrial commissioner ____________________________________________________________ : ?INEZ EWING, : : Claimant, : File No. 861067 : vs. : A R B I T R A T I O N : ?IOWA POWER & LIGHT COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ On July 11, 1989, Inez Ewing, (claimant) filed a petition for arbitration as a result of an injury to claimant's back occurring on July 13, 1987. Iowa Power and Light Company (Iowa Power or defendant) was identified as employer and is self-insured. On August 15, 1991, these matters came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by her counsel Fredd Haas of Des Moines, Iowa and Iowa Power by its counsel William L. Dawe of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Douglas Ewing, and Patricia Couch-Lynch. 2. Joint exhibits 1-23a and 24-35. 3. Claimant's exhibits A and B. stipulations The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on July 13, 1987, which arose out of and in the course of employment. c. The time off work is stipulated to be 91 weeks and is detailed in an attachment to the pre-hearing report and order incorporated into the record at the time of the hearing and is incorporated herein as if set out in full. d. The type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. e. The commencement date for permanent partial disability, is February 5, 1990. f. The rate of compensation, in the event of an award, is $204.78 per week based on a gross weekly wage of $304 per week. Claimant is married and has two children. She is entitled to four exemptions. EWING V. IOWA POWER & LIGHT Page 2 g. The parties agree that the providers of medical services would testify that the fees were reasonable and defendant is not offering contrary evidence. h. The parties agree that the providers of claimant's medical services would testify that the treatment was reasonable and necessary treatment of the work injury and defendant is not offering contrary evidence. i. The causal connection of the expenses to treatment for a medical condition upon which claimant is now basing her claim is admitted but the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. j. The expenses were authorized by the employer. k. Defendant seeks a credit for sick pay/disability income in the amount of $17,416.31 and medical/hospitalization expenses in the amount of $40,816.68. l. Defendant has paid 10.2857 weeks of workers' compensation benefits to claimant at the rate of $204.78 per week prior to hearing. m. The amount of costs to be assessed in this matter totals $983.25 plus the cost of the shorthand reporter for the hearing. Issues The issues for resolution are as follows: 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. 2. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. EWING V. IOWA POWER & LIGHT Page 3 FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 34 years old. At the time of her injury, claimant was 29. Claimant completed the tenth grade and then obtained a GED in 1975. Claimant also has obtained a clerk of business degree from the Des Moines Area Community College in 1981. Claimant was trained to perform office tasks as a part of this program. Claimant has not had any additional training since her course work at DMACC. 2. Claimant's work history has been primarily sedentary work. Claimant has worked as a teaching aide, a check encoder, a data entry clerk, an editing clerk with bookkeeping duties, and a word processor. Claimant's average hourly wage ranged from minimum wage to $5.22 per hour. 3. In November of 1984, claimant began working for Iowa Power as a part-time data entry clerk. Claimant bid on to a full-time data entry clerk position in January of 1985. Claimant was a special accounts representative at the time of her injury. As a special accounts representative, claimant worked with contractors and builders in establishing temporary accounts for electrical use at construction sites. Claimant's job was a sedentary position which included keyboarding skills at a typewriter and a computer and a ten key calculating machine. 4. Claimant's past health history is relevant in that she has a preexisting condition of uneven leg length that has caused rotoscoliosis in her back. One of claimant's legs is 3.3 centimeters longer than the other. Claimant's condition has been in existence since she was age 17. This condition can cause accelerated wear and tear on claimant's back. The condition was asymptomatic until a change in claimant's work station occurred. Claimant's work at Iowa Power did not cause claimant's rotoscoliosis. 5. In July of 1987, claimant went to see her family physician, David Swieskowski, M.D., and reported that she had a backache that had lasted for the previous two weeks with no known injury. Claimant indicated that she was particularly bothered when she was at work. Claimant gave Dr. Swieskowski a history regarding her work as a special accounts representative. Claimant indicated that when she typed at her typewriter, she could not get her legs under the typing stand because of the chair she was using. This in turn caused her to bend over to reach her machine. Claimant typed in this position for long periods of time. Her back hurt more at work than it did when she was at home on the weekend. Prior to the July 1987 complaints, claimant had never had any back complaints. After these complaints, claimant was taken off work for a week and sent for physical therapy. At the time of the physical therapy treatment, Thomas W. Bower, L.P.T., indicated that claimant had no significant radicular or sensory changes in her back. He noted EWING V. IOWA POWER & LIGHT Page 4 her range of motion was markedly guarded and restricted on July 21, 1987 but improved with treatment. After a week of treatment, claimant returned to work reporting no back pain. 6. When claimant returned to work on July 27, 1987 her work station had not changed. She still had the same chair and typing stand and she had to lean over to type. By July 31, she was again complaining of back pain. On July 31, Dr. Swieskowski took claimant off work until suitable working conditions could be obtained to avoid straining claimant's back. He was convinced that her pain and loss of work time was because of positional factors related to how she worked while typing. Dr. Swieskowski noted that working with arms outstretched clearly aggravates a back strain. 7. After she was taken off work, Iowa Power sent her to the Iowa Methodist Sports Clinic. Claimant was first seen by Raymond L. Webster, M.D., on August 3, 1987. Claimant gave a consistent history to Dr. Webster. After an examination by Dr. Webster Dr. Webster's impression was that claimant was suffering from myofascial back pain secondary to poor ergonomic work design. During this exam, claimant had good range of motion in her back and had negative bilateral straight leg raising tests. Claimant was seen again on August 6, 1987 and she reported improvement in her back pain. The assessment on this date was that claimant had resolving myofascial back discomfort. 8. On August 10, claimant was still making progress in resolving her myofascial back discomfort. She had full range of motion and negative straight leg raising test bilaterally. On this date, claimant was released to return to light duty work with restrictions of no sitting more than 30 minutes at a time, minimized typing duties with no more than 15 minutes per hour, no repetitive twisting, bending, pushing, pulling, or lifting greater than 10 pounds. 9. On September 3, and September 10, 1987, claimant saw Dr. Neff in connection with her back pain. Dr. Neff found claimant's leg length differential and rotoscoliosis. He believed that she should be treated with physical therapy at home, Tylenol, hot packs, and that the mechanical problem in her back be corrected with shoe and heel lifts. He also believed that once the biomechanical imbalance was improved the myofascial pain would improve. Dr. Neff did not attribute claimant's back complaints to the work station at Iowa Power. 10. Claimant began a new course of physical therapy treatments with the Iowa Methodist Sports Center on September, 2, 1987. Claimant continued to complain of pain in her low back. David Berg, D.O., became the treating physician at that time. Between September 2, 1987 and September 21, 1987, Dr. Berg examined claimant several times, generally after the physical therapy sessions. The following chart is a summary of the examination results and impressions from both Doctor Berg and Mike Dreibelbeis: EWING V. IOWA POWER & LIGHT Page 5 Date Tenderness Muscle Bilateral Comments to palpation spasms Straight leg and Raising Impression 9-2 Yes, bilateral No Negative Right posterior aspect of leg to feet aggravated with sitting. Recurrent myofascial back strain secondary to poor ergonomic working conditions 9-4 None Full ROM No *** No difficulty sitting for 45 minutes in typing position. Postural back dysfunction 9-9 Yes, more on No Negative Released to return right than left to work. Postural etiology. Condition aggravated with sitting. 9-11 Yes, posterior *** Yes pos @ Radiating pain aspect of LS area 10-20o down into lateral aspects of both legs very painful to walk Dorsiflexion did not produce more pain. Claimant has acute back pain. EWING V. IOWA POWER & LIGHT Page 6 Date Tenderness Muscle Bilateral Comments to palpation spasms Straight leg and Raising Impression 9-16 Normal range *** Negative Noted mild scoliosis motion but painful and unequal leg lengths with flexion Heel lifts prescribed to correct biomechanical imbalance 9-21 Some, no shooting None Negative Resolving low back pain pain. Heel lift helped. 11. On September 22, 1987 when claimant reported for physical therapy, she indicated to Mike Dreibelbeis, "I hurt getting into the tub this a.m. and could hardly work." (2) During this therapy session, Mr. Dreibelbeis noted that claimant could bend forward to the level of her mid-tibia; she had no muscle spasm; her straight leg raising were negative bilaterally; and claimant's gait was normal in terms of how quickly she moved. After therapy, claimant had no muscle spasms, her gait was normal and she had decreasing pain after ice and ultrasound. Significantly, claimant did not complain of left leg pain or weakness on this date.(3) 12. On September 24, 1987, claimant indicated when she reported for physical therapy that everything hurt and that the heel lift was not helping. After she had an ice treatment, she had total pain relief. Mike Dreibelbeis noted that there was no pain with palpation and no muscle spasms were detected with claimant prone on the table. Claimant was complaining of pain in the right and left anterior and posterior thighs and in both buttocks. Mike Dreibelbeis noted that claimant had very inconsistent findings as a result of this treatment session. 13. Dr. Berg examined claimant on September 24, 1987. Since Tuesday, September 22, claimant had complained of increasing back pain. Claimant had pain radiating across her back from the lumbosacral juncture right and left laterally in equal proportions. Claimant had the same right and left anterior thigh pain but this time it was anterior rather than lateral. She also had buttock pain on this date. Dr. Berg could find no tenderness to palpation. However, when he performed straight leg raising tests, these were positive with just a few degrees elevation, and the dorsiflexion of the foot brought tears to claimant's eyes. Dr. Berg's assessment at the conclusion of his examination was that claimant was suffering from lumbosacral pain of unknown etiology.(4) 14. Claimant was seen for the last time by Mr. Dreibelbeis (2) . When asked what his note of September 22 meant, Mr. Dreibelbeis advised that claimant told him that she had hurt herself getting into the tub that morning and she could hardly work. He believes that claimant injured her back on this date. (3) . Mr. Dreiblebeis was of the view, however, that claimant's pain complaints and condition changed after this incident. He felt the that the pain complaints were different from the prior dates. (4) . Dr. Berg later opined that claimant had herniated a disk on September 22 getting into the bathtub. A confirming CT scan was not done on this date however. Dr. Berg based his conclusion on the dramatic changes in symptoms in claimant from the physical therapy reports and his own examination. EWING V. IOWA POWER & LIGHT Page 7 on September 25, 1987. Claimant came in reporting a pain level of eight on a scale of one to ten. Straight leg raising on the right was positive for pain at 55 degrees and positive at 45 degrees on the left. In a sitting position, claimant reported pain at 20 degrees on the right and 20 degrees on the left. After the ice treatment, claimant was reporting no pain and was smiling prone on the table. Claimant also did prone press ups to 80 percent of an arm extension. Claimant was able to do six with no pain but on the seventh she reported a pain level of eight. Getting off the treatment table, claimant complained of pain in her left leg and she reported weakness in her left leg. 15. On September 28, 1987, claimant appeared for an examination with Dr. Berg and appeared to be in moderate acute distress. He noted that an examination of her low back revealed tenderness in the lumbosacral area bilaterally. Claimant was not able to do straight leg raising tests because they were falsely positive on both sides because of pain. Dr. Berg felt that there was a very strong emotional component to the problem but he also felt that she had an anatomical problem with her low back. 16. On October 2, a CT scan revealed that claimant had a disc protrusion at L5-S1 interspace centrally and on the left side. Dr. Berg felt that claimant had lumbar disk disease and made an appointment for claimant to see David J. Boarini, M.D., on October 12. 17. On October 9, 1987, Dr. Berg wrote an explanatory letter to Cindy Byrd at Iowa Power regarding claimant's condition. He indicated that claimant's recurrent back problems appeared to be improving but had followed an irregular course of improvement and regression. He indicated that her clinical signs and symptoms were so variable that claimant could not be consistently evaluated from one day to another. In connection with the protruding disk, Dr. Berg noted that the protrusion of her disc at L5-S1 interspace was centrally and on the left side. In all of the visits that claimant had with the Sports Medical Centre until September 25, 1987, her symptoms were primarily on the right side. Dr. Berg agreed with Dr. Neff that claimant had many preexisting conditions that would cause her to have back pain and he felt that it was extremely unlikely that the disk protrusion was a result of her work at Iowa Power. Dr. Berg did agree at the time of his deposition however, that claimant's pain changed on September 25, 1987. 18. On October 12, 1987, Dr. Boarini had an opportunity to examine claimant regarding her low back and left leg pain. Upon examination, claimant had a positive straight leg raising bilaterally. Her strength and sensation were intact. After reviewing the CT scan, Dr. Boarini felt that claimant had a probable defect at L5-S1 on the left. He discussed the situation with claimant and recommended that she have a myelogram. Dr. Boarini advised claimant that he did not believe that the disk protrusion was work related. Claimant did not agree with this conclusion and Dr. Boarini declined to treat claimant further. EWING V. IOWA POWER & LIGHT Page 8 He referred claimant to Dr. Winston. However, before that referral could made, claimant was seen by William R. Boulden, M.D, on October 16, 1987. After that examination, Dr. Boulden noted that claimant had a probable herniated disc at L5-S1. 19. In Dr. Boulden's consultation notes of October 16, 1987, claimant reported that during the last week of physical therapy she had started to develop left leg pain. After physical therapy, the pain started to get worse. Upon examination, Dr. Boulden felt that claimant had nerve entrapment, predominantly on the left. Eventually, Dr. Boulden reviewed Dr. Berg's notes and the notes of the physical therapist and indicated within a reasonable degree of medical certainty that as of September 21 and September 24, claimant still had a low back problem as opposed to a herniated or ruptured disc. After the report of September 25, 1987, where claimant reported radiating pain in her left leg, Dr. Boulden concluded claimant ruptured her disc while she was receiving physical therapy. Dr. Boulden did not believe that her work station caused her herniated disc. However, he did believe that the work station aggravated a preexisting degenerative condition in her lower back. 20. After a course of conservative treatment, claimant had a discectomy at L4-5 and L5-S1. In January of 1988, claimant was released to return to work. She was noticed increasing low back discomfort and that her left leg was dragging at times. Dr. Boulden could find no specific cause for the continuing problems and returned her to work. Claimant continued to have back pain when she sat to long. These symptoms persisted, and Dr. Boulden obtained a repeat MRI in February 1988. 21. Claimant continued to complain of leg pain and back pain through the spring. Dr. Boulden obtained a follow-up EMG study which showed a continuation of S1 nerve changes. Dr. Boulden concluded that claimant had residual nerve damage from the rupturing disc. He used epidural injections to see if he could get the pain under control for claimant. The epidural injections worked for awhile but did not successfully alleviate the leg pain. He then recommended manipulative therapy to control the pain. If not, then he was going to suggest facet blocks. 22. On July 29, 1988, Dr. Boulden gave claimant permanent restrictions for her back. Dr. Boulden assigned a 12 percent functional impairment rating to claimant. Dr. Boulden did conclude that claimant's initial problem was a degenerative disc irritation in her back. Sitting for extended period of time aggravated her degenerative disc condition. Dr. Boulden went on to opine that if claimant could alternate standing and sitting and walking, he believed that she would alleviate the stress on her back and she could return to work in a productive manner. He felt that she should not do any bending or twisting of any type. Claimant should not sit or stand in any particular spot for more than 30 minutes at a time without being able to move. In September of 1988, Dr. Boulden approved a job description for EWING V. IOWA POWER & LIGHT Page 9 claimant. 23. Apparently, claimant's pain did not abate and she underwent a transverse process and facet fusion surgery with bone grafts at L4-5 and L5-S1 on October 12, 1988. Dr. Boulden found that the pain was coming from symptomatic degenerative disc disease and mechanical back pain. After the surgery, Dr. Boulden felt she would recover in the next six months. On February 22, 1989, Dr. Boulden saw claimant and noted that she was healing very well but that she needed to participate in more activity. 24. On March 30, 1989, Dr. Boulden saw claimant again. Claimant continued to have off and on symptoms in her buttocks and down her left leg. Dr. Boulden reviewed x-ray films of claimant's spine. The fusion was stable. When Dr. Boulden spoke with claimant's physical therapist, he noted that at times claimant had excellent motion and at other times she did not. Dr. Boulden felt that there was a psychological overlay to claimant's pain complaints and he recommended a bio-feedback program. 25. In April of 1989, Dr. Boulden indicated that he had nothing further to offer claimant from an orthopaedic standpoint and released claimant. Dr. Boulden did not increase claimant's functional impairment rating or change her restrictions. She continued to complain of pain but he found no orthopaedic reason for her to have the pain other than the fact that she has some scar tissue in her low back. He felt that the pain center would probably be a good alternative treatment. Dr. Boulden felt that there was not a lot of organic pathology. Dr. Boulden felt that her pain was out of proportion to the pathological processes he observed. 26. On April 10, 1989, claimant was referred to United Behavior Clinics of Des Moines for her back pain. Claimant gave a consistent history of her injury and surgeries. The assessment by Mike Palmer, licensed psychologist, indicated that claimant had an adjustment disorder with mixed emotional features secondary to chronic pain syndrome. Claimant was evaluated for the purpose of assessing her chance of success at the Mercy Pain Clinic. 27. Claimant was subsequently evaluated by Karl Northwall, M.D., a psychiatrist. After his examination, he concluded that he did not see much of any psychiatrically pathological in claimant. He did not believe that she was malingering and that she has a life circumstance problem secondary to chronic pain. He believed that biofeedback, relaxation training and consideration of a pain center would be useful for claimant. 28. On July 11, 1989, Dr. Northwall again had an opportunity to evaluate claimant. He noted that she was still complaining of sharp shooting pain on this date. He estimated her pain at approximately 2-3 on a scale of 10 even though claimant indicated the pain was at 8 on the scale. Additionally, he noted that with her MMPI score and pain scale scores, claimant has a degree of histrionicity in her. As part of his assessment, EWING V. IOWA POWER & LIGHT Page 10 Dr. Northwall indicated that he believed he could stretch her condition into an adjustment disorder with a depressed mood secondary to her chronic pain syndrome. He also felt that there may be some degree of psychological overlay and that she had some degree of secondary gain but he was not clear as to what the gain would be. 29. After her evaluation at United Behavioral Clinic, claimant was admitted to the Mercy Pain Center for treatment for her back pain in January of 1990. Claimant gave a consistent history. Of note, claimant indicated that her husband was in good health but he was unemployed at the time of this examination due to a reading disability. Upon examination James L. Blessman, M.D., noted that claimant had amazingly good range of motion of her lumbar spine and rotation, side bending, flexion and extension. He noted that claimant had considerable amount of pain with extension. He straight leg raising tests were basically negative. Dr. Blessman noted that claimant had weakness of the dorsal flexion of her left foot and also some trouble walking on her heels on the left otherwise her gait was normal. He noted that she was unable to walk on her toes. At the end of the treatment period, claimant indicated that her pain EWING V. IOWA POWER & LIGHT Page 11 had improved. The staff encouraged claimant to obtain marital therapy. Claimant was released to return to her job on February 5, 1990. 30. Before claimant was released from the pain center, she had a block for pain in the lower lumbar area. At the time that the block was administered, James Ryan, M.D., found that on examination that the claimant was perfectly normal. Her straight leg raising test was also normal. Dr. Ryan could find no sensory problems. The block was performed and Dr. Ryan believed that this should assist claimant in dealing with her pain. 31. Dr. Swieskowski saw claimant on an intermittent basis after her back surgery for a couple of unrelated medical problems and for her back pain. After these visits, he concluded that claimant still had chronic back pain. By May 1990, Dr. Swieskowski restricted claimant from any lifting or carrying whatsoever, sitting for no more than one hour at a time, no stooping, climbing, kneeling or crawling. He also believed that traveling would be difficult for claimant. He believed that claimant was incapable of performing gainful employment. However, Dr. Swieskowski also believed that if a job could be structured whereby claimant would be seated for awhile and could stand for awhile and then she could walk around and not lift heavy objects then she could perform that kind of job. His opinion was based on subjective pain complaints by the claimant. There were very few objective findings to support these conclusions. The only objective findings Dr. Swieskowski could find were claimant's leg length difference and curvature of her spine. 32. In connection with causality, Dr. Swieskowski felt that claimant did not have a herniated disc when he began treating her in July 1987. He believed that it developed during the course of her treatment. He did not know whether the treatment caused her herniated disc. However, Dr. Swieskowski had no doubt that the herniated disc occurred sometime between the CT scan of October 2 and the MRI scan of October 16, 1987. He believed that the CT scan showed a bulging disc and the MRI study showed a herniation. 33. On July 31, 1991, claimant was evaluated by Michael J. Taylor, M.D., a psychiatrist. Dr. Taylor reviewed extensive medical records including the records pertaining to the care that claimant had received at the Pain Center at Mercy Medical Center and the mental health care she had received at United Behavior Clinics. He also reviewed a medical summary prepared by Mr. Dawe's office including the records from Dr. Swieskowski, Dr. Webster, Dr. Berg, Dr. Boulden, Dr. Neff and the physical therapists who have treated claimant. After the evaluation of claimant, Dr. Taylor concluded within reasonable degree of medical certainty that claimant was suffering from a major depressive disorder. He believes that claimant could be successfully treated for this condition and believes that it would not result in any type of permanent psychiatric impairment. EWING V. IOWA POWER & LIGHT Page 12 The major depressive disorder is related to the physical difficulty she is experiencing. He did conclude, however, that the depression was not directly caused by any factor related to her employment situation. 34. Claimant returned to work March 5, 1990. She was on duty from March 5 to March 19 on a part-time basis. Iowa Power designed a position for claimant that met her restrictions. Claimant was doing very well. She indicated that she felt good and was pleased to be back. She started working full-time March 19, 1990. Thereafter, claimant continued to complain of pain in her back. Prior to claimant's back complaints, she did have a chronic sick leave abuse problem. Claimant last worked in 1990. 35. Currently, claimant has ongoing low back pain. She has indicated that sitting bothers her when she sits for more than an hour. She indicates that she can't stand for more than an hour and she can't walk very far. Claimant also believes that she can not lift things in excess of five pounds and that her sleep pattern is currently irregular. She also believes that she is restricted from bending, pushing, and pulling and doing any type of repetitive stooping, bending, lifting, pushing or pulling. Claimant has been receiving social security disability income since March of 1990. Claimant has made no further attempts to obtain employment since she was awarded social security disability benefits. 36. Claimant has incurred medical bills with various providers over the course of her treatment. These are contained in exhibit 32. The total amount of the medical bills equals $40,816.68. CONCLUSIONS OF LAW 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. Claimant urges that her disability is a result of physical therapy treatment that took place on September 25, 1987. She contends that the treatment herniated a disk in the lumbosacral region of her back. This herniation caused her to have a laminectomy and ultimately a two level fusion leaving her permanently and totally disabled. Defendants argue that claimant herniated the disk in her back getting into a bathtub on September 22, 1987 and that this intervening event is the cause of her disability. In the alternative, if a causal connection is found, defendants urge that claimant's industrial disability is not substantial. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 13, 1987 and the subsequent treatment given in September of 1987, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). A cause EWING V. IOWA POWER & LIGHT Page 13 is proximate if it is a substantial factor in bringing about the result. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). There only needs to one cause; it does not have to be the only cause to make the claim compensable. Blacksmith, 290 N.W.2d at 354. The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. The Supreme Court has consistently held that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 254 N.W. 35,38 (Iowa 1934); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 737 (Iowa 1968); Barz v. Oler, 133 N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service Stores, 125 N.W.2d 251, 256 (Iowa 1963); Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 (Iowa 1960). The Supreme Court has also indicated that in order for an aggravation of a preexisting condition to be compensable, the aggravation should be material. Yeager, 112 N.W.2d at 302. Moreover, a condition that is aggravated or increased by treatment is also compensable provided the worker is not negligent in selecting the person who administers the treatment. Lindeken v. Lowden, 295 N.W. 112, 118-119 (Iowa 1941); Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice(2nd Ed. 1991), Section 4-4. In this instance, the medical evidence is unbalanced in its attempts to pinpoint the cause of claimant's disk herniation. Doctors Berg, Boarini and Swieskowski did not attribute claimant's herniation to the physical therapy treatment. Dr. Swieskowski, a board certified family practitioner, specifically said that he did not know whether the physical therapy treatment caused the herniation. He believed that the herniation occurred between October 2, 1987, the date of the CT scan and the MRI study that was done on October 16, 1987. He based this conclusion on the differences in the studies. The CT scan showed a protrusion and the MRI showed a herniation. Dr. Boarini, an orthopedist, believed that claimant's herniation was due to her EWING V. IOWA POWER & LIGHT Page 14 preexisting condition, rotoscoliosis caused by her uneven leg length. Dr. Berg, an occupational medicine specialist, eligible to take his board certification in 1991, believed that claimant may have herniated her disk getting into her bathtub at home on September 22, 1987. Dr. Boulden, a board certified orthopaedic surgeon, and the physician who performed claimant's surgeries is the only doctor to attribute claimant's herniated disk to the physical therapy treatment that she received at the end of September 1987. Dr. Boulden indicated that physical therapy treatment could herniate a disk. Dr. Boulden based his conclusion on the history obtained from claimant, the notes from Michael Dreibelbeis which indicate a change in claimant's left leg pain on September 25, 1987 and Dr. Berg's notes from September 24, 1987 and letter of September 28,1987. Dr. Boulden believed claimant's disk herniated sometime during physical therapy treatments between September 24, 1987 and September 28, 1987. This writer finds the testimony of Dr. Boulden most compelling. The record is clear that claimant's pain and complaints did not change substantially after September 22, 1987. The words, "I hurt getting into the tub this a.m. and could hardly work" connote an intervening event that could have broken the causation chain if there had been other evidence on this day of a changed condition. As it was, none of the medical professionals who have examined the record of September 22, 1987 find anything remarkable for a herniated disk. Claimant had negative leg raising, her gait and step were normal. She had full flexion and range of motion to the mid tibia. Her pain complaints did not change on this date. This report does not indicate that claimant had anything other than the same back pain she had started with when the course of physical therapy began in September. Claimant's pain complaints changed on September 24 and September 25, notably after the physical therapy treatment. Claimant complained of more pain, her gait had slowed, and her straight leg tests were negative for Therapist Dreibelbeis. However, when she was examined by Dr. Berg after therapy, her straight leg raising tests were positive and she was exhibiting more pain behaviors. This was sufficient for Dr. Berg to order a CT scan to pinpoint the cause of claimant's pain complaints. On September 25, claimant began her therapy session with pain of 8 on a scale of 10 that resolved during the first part of the session. The pain returned to 8 after claimant did prone press ups and when she got off the table she had left leg pain and weakness. This condition was new. As Dr. Berg had observed during his deposition and in his letter to Iowa Power on September 28, claimant's complaints had been largely on the right before September 25, 1987. This evidence when coupled with Dr. Boulden's assertion that physical therapy was the culprit in causing claimant's herniated disk is sufficient to establish the necessary causal link to carry claimant's burden of proof on this point and establish her entitlement to permanency benefits and EWING V. IOWA POWER & LIGHT Page 15 medical benefits. It is clear from Dr. Boulden's records that claimant has suffered a permanent injury as a result of the herniated disk and two level fusion that he performed. Dr. Boulden assigned a 12% functional impairment to claimant's body as a whole and indicated that claimant is restricted to sedentary work with alternating sitting, standing and walking positions. Dr. Boulden believes that claimant can work if the job matches her restrictions and Iowa Power is willing to accommodate her needs. Dr. Swieskowski assigned more severe restrictions which included no lifting of any weight, 30 minutes of sitting, standing and walking at any one time and no repetitive bending, stooping, or twisting. Again, because Dr. Boulden is the board certified orthopedist in this case, his assessment of claimant's permanent impairment and restrictions will be adopted. Where 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., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within the restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). In order to show that claimant is permanently and totally disabled, claimant must show that the only services she can perform are so limited in quality, dependability, or quantity, that a reasonable, stable market for them does not exist. When a combination of industrial disability factors precludes a worker from obtaining regular employment to earn a living, a worker with only a partial functional disability has a total industrial disability. Guyton v. Irving Jensen Company, 373 N.W.2d 101 (Iowa 1985). In this instance, claimant believes that she is precluded from any gainful employment because of the pain that she is experiencing as a result of her back surgeries. Pain that is not supported by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981); Fernandez v. Good Samaritan Nursing Center, No. 856640, Slip op. at 15 (Iowa Ind. Comm'r Arb. February 27, 1991). While there is no doubt in the minds of claimant's doctors that claimant has pain, there are no EWING V. IOWA POWER & LIGHT Page 16 objective reasons for the pain. Dr. Boulden indicated that he could find no orthopedic reason for claimant's pain complaints. Additionally, Dr. Blessman, the director of the pain center noted that claimant had amazing flexibility for someone in as much pain as she claimed she was in. Dr. Ryan, who saw claimant for a nerve block on February 2, 1990 indicated that claimant was perfectly normal and had normal straight leg raising. The mental health professionals that claimant saw also believed that claimant was exaggerating her pain complaints. The basis for Dr. Swieskowski's restrictions were based on subjective complaints of pain. This evidence is insufficient to find that claimant's pain is so debilitating as to prevent her from working. Moreover, Iowa Power is to be commended for attempting to work with claimant in structuring a position for her that fit within her restrictions. Claimant was being trained to read meter cards when she left her employment with Iowa Power. Iowa Power structured claimant's job so that she could stand, sit and walk around as she needed. Since claimant had employment on a regular basis with Iowa Power and left this job because of subjective complaints of pain, she is not totally and permanently disabled. Claimant has suffered an industrial loss however and the other factors must be considered. Claimant is young and has her whole working life ahead of her. Claimant has a GED and post high school training in office positions, positions that she is suited for as long as an employer will accommodate her restrictions of alternate sitting, standing and walking on a regular basis. These are significant restrictions which foreclose substantial portions of even the sedentary labor market to claimant. Claimant has had two surgeries which culminated in a two level fusion. Claimant has a 12 percent functional impairment rating as a result of the surgeries. Claimant's family life has been a distraction for her in that her husband has been unemployed due to a reading deficiency and has not been supportive of her treatment modalities. Claimant's motivation has been diminished with her qualifying for Social Security Disability benefits. Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 75 percent industrial disability. Since claimant has suffered a permanent disability, she is entitled to healing period benefits pursuant to Iowa Code Section 85.34 (1991). Healing period benefits may be characterized as that period during which there is a reasonable expectation of improvement of a disabling condition and ends when maximum medical improvement is reached. Armstrong Tire and Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981). In discussing the concept of healing period as contemplated by Iowa Code Section 85.34(1) (1991) the Kubli Court observed that recuperation refers to that condition in which healing is complete and the extent of the disability can be determined. Kubli, 312 N.W.2d at 65. The EWING V. IOWA POWER & LIGHT Page 17 healing period generally terminates at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Kubli, 312 N.W.2d at 65. When a permanent rating is given, it indicates that the physician does not expect the claimant to improve and this conclusion meets the criteria of Iowa Code section 85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984). The healing period can also terminate when claimant is released to return to work. In this instance, the parties have agreed that claimant was off work for 91 weeks. Consequently, claimant is entitled to 91 weeks of healing period benefits. 2. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. Defendants have also argued that claimant is not entitled to medical benefits on the same theories urged above. Claimant urges to the contrary. Claimant has the burden of demonstrating that the medical services obtained were causally related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). Claimant has shown by a preponderance of the evidence that she sustained an injury while working for Iowa Power. As a consequence, the necessary nexus has been established and Iowa Power must provide medical benefits to claimant pursuant to Iowa Code section 85.27 (1991). In this instance, claimant has incurred over $40,000 in medical services which have been paid by Share, claimant's group health carrier. Iowa Power is responsible for these charges. Claimant has also been responsible for paying co-payments in connection with this care. However, no amount was submitted as to claimant's out of pocket cost in connection with her care. Therefore no amounts will be awarded. order THEREFORE, it is ordered: 1. Iowa Power shall pay to claimant healing period benefits for ninety-one (91) weeks consistent with the dates and times described on the attachment to the prehearing order filed on August 15, 1991 at the rate of two hundred four and 78/100 dollars ($204.78) for the injury to claimant's back. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Iowa Power shall pay to claimant permanent partial disability benefits in the amount of seventy-five percent (75%) at the rate of two hundred four and 78/100 dollars ($204.78) for the injury to claimant's back with payment commencing on February 5, 1990. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 3. Iowa Power shall have a credit in the amount of ten EWING V. IOWA POWER & LIGHT Page 18 point two eight five seven (10.2857) weeks against any amounts owed. Additionally, Iowa Power shall have a credit for seventeen thousand four hundred sixteen and 31/100 dollars ($17,416.31) for sick pay or disability income paid to claimant. Finally, Iowa Power will have a credit in the amount of forty thousand eight hundred sixteen and 68/100 ($40,816.68) for a medical expenses paid by them. 4. The costs of this action totaling nine hundred eight-three and 25/100 dollars ($983.25) and the cost of the shorthand reporter for the hearing shall be assessed to Iowa Power pursuant to rule 343 IAC 4.33. 5. Iowa Power shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of May, 1992. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER EWING V. IOWA POWER & LIGHT Page 19 Copies To: Mr Fredd J Haas Attorney at Law 5001 SW 9th Street Des Moines Iowa 50315 Mr Cecil L Goettsch Attorney at Law 801 Grand Avenue Suite 3700 Des Moines Iowa 50309 5-1402.20 - 5-1803 Filed May 28, 1992 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : INEZ EWING, : : Claimant, : File No. 861067 : vs. : A R B I T R A T I O N : IOWA POWER & LIGHT COMPANY, : D E C I S I O N : Employer, : Self-Insured,, : Defendant. : ___________________________________________________________ 5-1402.20 Claimant had a preexisting condition in her back aggravated by poor ergonomic conditions at work. While receiving a course of physical therapy treatments, a disk in claimant's back was herniated. The evidence showed that the physical therapy and not a vague reference to a bathtub incident at home caused the disk herniation. 5-1803 Claimant, a 32-year-old office worker with some post high school training was awarded an industrial disability of 75 percent. Claimant's injury was severe and it prevented her from sitting, standing and moving about for substantial periods of time. However, claimant's employer was willing to design a job for claimant to accommodate her restrictions. Claimant's only complaints after her release from treatment were pain complaints.