Page 1 before the iowa industrial commissioner ____________________________________________________________ : THOMAS P. STARR, : : Claimant, : : File No. 869716 vs. : : WINNEBAGO INDUSTRIES, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Thomas P. Starr, claimant, against Winnebago Industries, employer, and self-insured defendant, for benefits as a result of an injury that occurred on November 9, 1987. A hearing was held in Mason City, Iowa, on August 15, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by E. W. Wilcke and defendant was represented by Timothy Wegman. The record consists of the testimony of Thomas P. Starr, claimant, Charlene Starr, claimant's wife, Ted D. Broege, claimant's friend, Darrell J. Bonner, manager of safety, health and workers' compensation; claimant's exhibits 1 through 16; and defendant's exhibits 1 through 23. The parties failed to get together prior to hearing and prepare a joint exhibit, as directed by paragraph 10 of the hearing assignment order and, therefore, most of the exhibits were duplicated. Duplicated exhibits inhibit and delay the decision making process. stipulations The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on November 9, 1987, which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability; that claimant was entitled to and was paid 10.143 weeks of workers' compensation temporary disability benefits for the period from November 15, 1987 to January 24, 1988 prior to hearing at the rate of $191.10 per week; and, that temporary disability benefits are no longer a disputed matter in this case at this time. That 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. Page 2 That the commencement date for permanent disability benefits in the event such benefits are awarded is January 24, 1988. That the rate of compensation in the event of an award is $191.10 per week. That claimant's entitlement to medical benefits is not in dispute at this time. That defendant seeks no credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendant did overpay claimant $81.79 in temporary disability benefits and that this overpayment can be used by defendant as a credit against any award of permanent disability benefits. That there are no bifurcated claims. issues The parties submitted the following issues for determination at the time of the hearing: 1. Whether the injury was the cause of permanent disability; and, 2. Whether claimant is entitled to permanent disability benefits, and, if so, the extent of benefits to which he is entitled. findings of fact causal connection - entitlement - permanent disability Claimant, born April 7, 1964, was 23 years old at the time of the injury and 26 years old at the time of the hearing. He was a high school graduate without further formal education. Prior employments include working on construction for about a year and working in a Qwik Shop for approximately one and one-half years. Claimant started to work for employer in November of 1983 and was terminated for absenteeism and tardiness approximately four and one-half years later on April 26, 1988. Claimant admitted that he had two other minor back incidents prior to this injury. In 1982, he pulled some back muscles. In 1984, he had a contusion of the back. Claimant contends he had no further consequences from these injuries and was performing manual labor every day at the time of this injury which occurred on November 9, 1987. At that time, claimant felt a sudden pain in his left low back while twisting and trying to unload some glue bars (Claimant's Exhibit 16, page 4). Claimant saw a physician's assistant at the clinic who referred him to Byron H. Carlson, M.D. On November 12, 1987, he diagnosed acute lumbar strain (Cl. Ex. 4, p. 9). Dr. Carlson referred Page 3 claimant to Kenneth B. Washburn, M.D., a doctor of physical medicine and rehabilitation. Dr. Washburn saw claimant on December 4, 1987, December 11, 1987, January 6, 1988, and on January 22, 1988 and released claimant to return to work on January 24, 1988. Dr. Washburn prescribed medications, physical therapy and a work hardening program (Cl. Ex. 4, pp. 4-5). Dr. Washburn said that the injury was caused by claimant's employment (Cl. Ex. 16, p. 53). Claimant did not see Dr. Washburn from January of 1988 until September 23 and September 30, 1988, at which time Dr. Washburn ordered a physical capacity examination and referred claimant to an orthopedic surgeon (Cl. Ex. 4, p. 5). On October 12, 1988, Dr. Washburn reported the results of the physical capacity examination on September 30, 1988 (Cl. Ex. 4, p. 11; Def. Ex. 1, p. 11) were as follows: [H]e can sit up to three hours a day in a day in an eight hour day at one time. He can stand up to two hours per day at one time. He can walk up to two hours at one time, in one day. He can lift and carry up to 35 pounds on a frequent basis. He can occasionally lift from 36 to 50 pounds. He can bend and stoop about one-third of the time during the day. He can push and pull carts weighing up to 14 pounds. He can reach above shoulder level with 30 pounds weights on a frequent basis. He can handle grip, rotate head, operate foot controls on a frequent basis and he can drive up to one-third of an eight hour day. (Cl. Ex. 4, p. 8; Def. Ex. 1, p. 12) Claimant did not see Dr. Washburn again until August 30, 1989, at which time he assessed a 2 percent disability for a continued mild myofascial pain syndrome (Cl. Ex. 1, p. 1; Def. Ex. 1, p. 15l; Cl. Ex. 16, p. 56). This 2 percent was not affected by the recurrence of back pain claimant had on February 28, 1989 through March 16, 1989 (Cl. Ex. 1, p. 15; Cl. Ex. 16, pp. 57-58). The doctor said his ratings were based upon the Guides to Evaluation of Permanent Impairment, third edition published by the American Medical Association (Cl. Ex. 16, p. 58). Claimant's only limitation of motion was a mild limitation in forward flexion (Ex. 16, p. 11). The doctor affirmed that this was a permanent impairment (Cl. Ex. 16, p. 58). The doctor confirmed that it was still his opinion as of the date of his deposition on September 6, 1989 that claimant has a 2 percent permanent impairment (Cl. Ex. 16, p. 61). He estimated that claimant would be able to perform moderate heavy labor in the future without too much difficulty if he continues his exercises and takes proper care of his back. He did not anticipate frequent future episodes (Cl. Ex. 16, pp. 62-63). He said his final diagnosis was somewhere between low back strain of the muscles and myofascial pain syndrome (Cl. Ex. 16, p. 65). The orthopedic surgeon who evaluated claimant for Dr. Washburn was Michael W. Crane, M.D., who did not believe claimant had a ruptured disc or any other lesion that needs to be worked up significantly (Cl. Ex. 16, p. 68). Dr. Washburn recorded several times in his office notes and also Page 4 testified at the time of his deposition that claimant failed to keep his regularly scheduled appointments on several occasions with himself, the physical therapist, and two specialists where Dr. Washburn had set up an appointment. Claimant both failed to show up and failed to call in to explain his absence (Cl. Ex. 16, p. 61). Claimant called attention to employment evaluations where he received good ratings. Defendant called attention to employment ratings where claimant was not completely satisfactory. Defendant did prove that claimant was disciplined for several times that he was either absent or tardy from work between 1984 and 1988 which caused his termination on April 26, 1988 (Def. Exs. 8 through 15). Claimant contends he could not keep his medical appointments because he did not have any money; however, defendant showed that claimant received regular checks in payment of workers' compensation benefits from November 24, 1987 through January 26, 1988 (Def. Exs. 9 through 23). Claimant testified that he either cannot do or is limited in doing the following tasks: gardening, remodeling his house, siding his house, lifting his children, performing automotive repair work, doing yard work, painting, and driving an automobile. His wife testified that his ability to fish, hunt, play golf, work on the yard, fix up their house, pick up their children, drive the car, repair the car and work in the garden has been impaired. Claimant's friend, Broege, testified that he does claimant's work at claimant's home. They no longer take long car trips or exploratory fishing trips. Claimant's wife testified that he missed work and medical appointments because sometimes the car broke down, she was pregnant, the kids were sick, claimant was too stiff to get out of bed, and claimant's medications made him so drowsy that he could not wake up. Claimant testified that he missed work and medical appointments because of financial reasons, car problems and bad weather. Claimant testified that he was earning $7.50 when he was terminated by employer and was now earning $7.94 with his current employer. He moved to obtain the current employment and now lives in a higher cost of living area. He testified that his rent has doubled. After he moved, it was too far away to see Dr. Washburn. He has not seen Dr. Washburn since August of 1989. The only medications he takes are Tylenol and Advil. Claimant had periods of unemployment after he was fired. He applied for jobs several places, completed applications and job interviews, and he believed that he was turned down for several jobs because he had a back injury and a workers' compensation claim. Claimant has had two rather long-term employers since he was terminated by employer. Claimant contends that he obtained his current job because he did not disclose his job injury to this employer. Darrell Bonner, claimant's workers' compensation manager, testified that claimant was terminated as a result of several tardies and absences where claimant did not call Page 5 in or provide the medical data required to explain the absences. In brief summary, it is determined that claimant suffered a back strain caused by his employment which resulted in a 2 percent permanent functional impairment to the body as a whole. Claimant also has several restrictions imposed by Dr. Washburn which were not demonstrated to be removed which would impair his ability to find other employment if they were known to prospective employers. Likewise, the fact that claimant has sustained a work-related back injury and litigated a workers' compensation case does tend to limit his employability. Claimant's young age, in the mid-20's, makes his industrial disability less severe than it would for an older employee in their peak earning years. Claimant has the advantage of a high school education. He received average grades in high school. He has performed well on most of his jobs and has demonstrated versatility in learning a number of different jobs. Claimant did not express an interest in vocational rehabilitation. He is performing his present job in a satisfactory manner. Wherefore, based upon the foregoing considerations, and all the factors used in determining industrial disability, and based upon agency expertise, it is determined that claimant has sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. conclusions of law Wherefore, based upon the evidence presented and the foregoing and following principles of law, the following conclusions of law are made: That claimant did sustain the burden of proof by a preponderance of the evidence that the injury of November 9, 1987 was the cause of permanent disability. 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). That claimant has sustained an industrial disability in the amount of 10 percent to the body as a whole. Iowa Code section 85.34(2)(u). Page 6 order THEREFORE, it is ordered: That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred ninety-one and 10/100 dollars ($191.10) per week, in the total amount of nine thousand five hundred fifty-five dollars ($9,555.00) commencing on January 24, 1988, as stipulated by the parties. That defendant is entitled to a credit in the amount of eighty-one and 79/100 dollars ($81.79) for the overpayment of temporary disability benefits, as stipulated to by the parties. That this award is to be paid in a lump sum. That interest will accrue, pursuant to Iowa Code section 85.30. That the costs of this action are charged to defendant, pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claimant activity reports as requested by this agency, pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of September, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr E W Wilcke Attorney at Law 826 1/2 Lake St P O Box 455 Spirit Lake IA 51360 Mr Stephen W Spencer Mr Timothy W Wegman Attorneys at Law 218 6th Ave Ste 300 P O Box 9130 Des Moines IA 50306 51401, 51402.40, 51803 Filed September 4, 1990 Walter R. McManus before the iowa industrial commissioner ____________________________________________________________ : THOMAS P. STARR, : : Claimant, : : File No. 869716 vs. : : WINNEBAGO INDUSTRIES, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant. : ___________________________________________________________ 51401; 51402.40; 51803 Nonprecedential determination of industrial disability. Claimant had a 2% permanent functional impairment of the lumbar spine and a number of doctor's restrictions which took him out of the heavy labor area and placed in the light to medium work area. Claimant, age 25, was young and adaptable and had a high school education. He was earning more now than when he was injured but had trouble finding permanent employment again. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BERNARD SCHNEIDER, : : Claimant, : : vs. : : File No. 869747 PRAIRIE CONTRACTORS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 25, 1991, is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Defendants challenged the reasonableness of a portion of the medical fees claimant is seeking. The record shows these fees were paid by claimant. There is no contrary evidence from defendants indicating the fees were unreasonable. Payment of medical fees can constitute evidence of their reasonableness and, in the absence of contrary evidence, is sufficient to carry claimant's burden of proof on this issue. To the extent McClellon v. Iowa Southern Utilities, Appeal Decision, January 31, 1992 (#894090) differs, that holding is hereby overruled on this limited ground. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of April, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James Spellman Page 2 Attorney at Law 1119 High Des Moines, Iowa 50309 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 2700 Filed April 20, 1992 BYRON K. ORTON LPW before the iowa industrial commissioner ____________________________________________________________ : BERNARD SCHNEIDER, : : Claimant, : : vs. : : File No. 869747 PRAIRIE CONTRACTORS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2700 Payment of medical fees can constitute evidence of the reasonableness of the fees and in the absence of contrary evidence is sufficient to carry claimant's burden. This overrules a holding in McClellon v. Iowa Southern Utilities, Appeal Decision, January 31, 1992 (#894090). Page 1 before the iowa industrial commissioner ____________________________________________________________ : BERNARD SCHNEIDER, : : Claimant, : : vs. : : File No. 869747 PRAIRIE CONTRACTORS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Bernard Schneider, claimant, against Prairie Contractors, Inc., employer (hereinafter referred to as Prairie), and Home Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on August 19, 1987. On September 25, 1991, a hearing was held on claimant's petition and the matter was consid ered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On August 19, 1987, claimant received an injury which arose out of and in the course of his employment with Prairie Contractors, Inc. 2. Claimant is seeking temporary total disability or healing period benefits from October 24, 1988 through July 21, 1989 and defendants agree that he was not working during this period of time. 3. The injury is a cause of some degree of temporary total and industrial disability to the body as a whole. 4. Claimant was married at the time of the injury. issues The parties submitted the following issues for determi Page 2 nation in this proceeding: I. The extent of claimant's entitlement to disabil ity benefits; II. The extent of claimant's entitlement to medical benefits; III. Claimant's rate of compensation; and, IV. The extent of claimant's entitlement, if any, to penalty benefits for an unreasonable denial or delay in payment of benefits. findings of fact Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the nature and extent of the disability; his entitlement to medical expenses; and, to the number of exemptions with reference to rate of compensation. From his demeanor while testifying, claimant is found credible. Claimant worked for Prairie from July 1985 until October 1988, at which time claimant left work upon the advice of his treating orthopedic surgeon as a result of back and leg pain caused by the injury herein. Claimant has not been employed in any capacity since that time. Claimant was a carpenter foreman for Prairie. However, he was a working foreman and required to perform manual labor along with his subordinates. Occasionally, he would serve as a project manager in charge of all the crews at a construction site. Much of the work assigned to claimant and his fellow employees was very physically demanding involving the assem bly and placement of concrete forms and the pouring of con crete. Almost all of the work at Prairie involved the con struction or remodeling of pipeline pumping stations. Claimant earned $13 per hour at the time of the injury and usually worked from 40 to 60 hours a week. With overtime pay, claimant was averaging over $880 a week in wages at the time of the injury. Claimant's work was year round and he would be assigned to work at the Prairie headquarters during the off season. Claimant earned approximately $43,000 annu ally before the injury. On or about August 19, 1987, claimant injured his low back when he fell while carrying a very heavy concrete form with another employee. When he fell, the form landed on his left side and his body struck the ground with his right side. Claimant initially sought chiropractic treatment for low back and left hip pain along with leg pain. After a few weeks claimant failed to improve and was referred by the chiropractor in October 1987 to an orthopedic surgeon, Page 3 William Pontarelli, M.D. After several weeks of conserva tive care by Dr. Pontarelli consisting of bed rest, medica tion and home exercises, claimant failed to improve and he underwent an epidural injection in December of 1987. According to claimant, this injection reduced the severity of the pain and alleviated much of the leg pain but he still continued to have relatively constant low back pain. Given continued pain and evidence of a herniated disc as the result of a CT scan, Dr. Pontarelli recommended back surgery to claimant in February 1988. After an explanation of the odds of a successful surgery, claimant rejected surgery. A few weeks later, Dr. Pontarelli changed his opinion and no longer recommended surgery because claimant appeared to be improving with less leg pain. The doctor indicated in his reports that the contemplated surgery would only improve the leg pain and not the low back pain. Also, according to Dr. Pontarellia, later enhanced CT scan failed to sufficiently confirm a ruptured herniated disc that could be surgically repaired. In December 1988, Dr. Pontarelli stated to claimant that there was little else he could offer him to alleviate his pain and he rated claimant as suffering from a five percent permanent partial impairment to the body as a whole. He also, at that time, imposed a five pound lifting restriction of claimant's physical activities. In May 1988, Dr. Pontarelli recommended that claimant receive further treatment at the University of Iowa Hospitals and Clinics Spinal Diagnostic and Treatment Center and specifically its Pain Clinic. Claimant was evaluated in June 1988, by this clinic and it was found at that time that claimant could benefit from their treatment. However, defendants did not authorize such treatment at that time and in lieu thereof had their vocational rehabilitation consul tant, Max Verling, seek from Dr. Pontarelli authorization for a different back program in Moline, Illinois. Dr. Pontarelli rejected this request and again recommended that claimant receive further treatment at the University of Iowa Pain Clinic. Finally, approximately one year later, claimant was given authority by defendants to attend the University of Iowa Pain Clinic and he did so between July 10, 1989 and July 21, 1989. At this pain clinic, claimant received extensive physi cal therapy, instruction on home exercises and counseling and instruction on coping with pain. According to physi cians and therapists at the clinic, claimant suffered a 10 percent permanent partial impairment to the body as a whole as a result of the work injury in this case. As an addi tional result of this injury, claimant has been restricted by clinic staff to lifting no more than 35 pounds only four times per hour and only 18 pounds on a repetitive bases. Also, the clinic staff felt that claimant had high potential for rehabilitation and they agreed with claimant's retrain ing plans consisting of course work at a local community college in an effort to obtain a degree in civil engineer ing. The staff of the clinic felt that claimant was honest and motivated in returning to a productive lifestyle. In his report of August 1, 1989, University of Iowa Pain Clinic director was very critical of the defendant Page 4 insurer's failure to authorize attendance at the pain clinic prior to July of 1989 and felt that as a result of this delay, claimant had not reached maximum healing until com pletion of their program on July 21, 1989. Based upon these views, it is found that claimant did not reach maximum heal ing from the injury until July 21, 1989. It should also be noted that the rehabilitation consultant retained by defen dants stated in his report of January 1989, that he did not believe claimant was "job ready" during this period of time due to extreme pain. In their report of August 1989, the staff of the University of Iowa Pain Clinic recommended that claimant continue home exercises to maintain and increase his strength and physical functioning. They also suggested that claimant seek counseling for Vietnam stress syndrome which they felt may be adversely affecting claimant's ability to cope with the pain. Claimant had served a tour of duty in Vietnam in the early 1970's. Claimant has been evaluated on three occasions since July 1989 by the Pain Clinic. Initially, claimant's strength was maintained. However, the last two evaluations in February 1990 and August 1991, found that claimant's strength and functioning had decreased from the gains accom plished at the clinic in July 1989. Also, claimant had not sought counseling for stress syndrome. Claimant explained at hearing that he had done what he could with reference to the exercises but that the pain was becoming an increasing problem. He offered no explanation why he had not sought counseling from the Veterans Administration for his Vietnam stress problems. Claimant stated that he felt that his major problem was the injury and the resulting pain from that injury, not any problems from his Vietman war experi ences. Consistent with the recommendations of the clinic to move ahead with his life despite his disability, claimant has sought assistance from the State of Iowa Vocational Rehabilitation Division and since January 1990, has been attending classes at a local community college earning cred its toward a degree in civil engineering. Claimant had attended college for one year before his Vietnam tour in the late 1960's. Claimant attempted a full load of case work in the fall and spring of 1990/1991 but had to drop out of school during the second semester due to severe back and neck pain. Claimant is back at school at the present time but only on a part-time basis. He states that he cannot physically handle a full load as a result of problems with concentration due to pain and an inability to sit for pro longed periods of time. Claimant estimated that due to his inability to attend school on a full time basis, the receipt of his degree will be delayed from four to six years. Although low back pain remains claimant's chief com plaint, he has been increasingly bothered by neck and arm pain along with headaches in recent months. Claimant has been treated recently by Dr. Pontarelli and his associate Richard Berge, M.D., for these problems. This treatment included several weeks of physical therapy at the Hawkeye Page 5 Rehabilitation Clinic. Defendants dispute the causal connection of these neck and arm problems to the work injury. Admittedly, Dr. Pontarelli's initial office notes prior to May 1991, do not mention any complaint of neck or arm pain. However, in his May 1, 1991 report (Exhibit 42), Dr. Pontarelli notes that he could not remember the exact date when claimant began to "decompensate" with neck and left arm pain. Obviously, such complaints were not new to Dr. Pontarelli. Also, at the request of defendants, claimant was evaluated in March 1988, by J. R. Lee, M.D. Although he agreed with Dr. Pontarelli's diagnoses of low back disc problems and conservative therapy, Dr. Lee noted at that time that claimant had complaints of neck and left arm pain and numbness with headaches. Therefore, it is found that claimant's neck and arm pain and his chronic headaches are causally connected to the work injury. However, it does not appear that any physician has opined that claimant suffers from permanent partial impairment or work restrictions as a result of these prob lems. As indicated by Dr. Pontarelli, these complaints stem from his compensation for the disabilities caused by the low back injury. However, the pain is continuing and requiring treatment along with claimant's low back and leg pain. As a result of the injury of August 19, 1987, claimant has a 10 percent permanent partial impairment to the body as a whole. Also, as a result of the injury, claimant is per manently restricted from activity consisting of no repeti tive lifting over 18 pounds and no lifting more than four times per hour over 35 pounds. These findings are based upon the assessment of claimant's condition by the University of Iowa Pain Clinic which is the most recent evaluation of claimant's abilities. Claimant failed to show by the greater weight of the evidence that he physically is unable to perform sedentary work over a normal 40 hour work week. Claimant stated that he must rest two to three hours a day on his back and cannot concentrate due to back pain. He states that he cannot sit to attend classes more than a couple hours a day. However, such a dismal assessment of claimant's abilities is not shared by Dr. Pontarelli or the physicians at the University of Iowa Pain Clinic. If such is true, it is largely due to claimant's failure to keep up with his exercises and coping techniques taught to him at the University of Iowa Pain Clinic in July 1989. Also, claimant is having difficulty coping with his pain in part due to his failure to seek counseling for Vietnam stress syndrome. This is a concern not only of his physicians but a concern expressed by members of the family according to claimant's mother at the time of hearing. It was very apparent to the undersigned from claimant's testimony at hearing that the Vietnam war and the loss of a friend in this war has left significant emotional scars. It is found that counseling and treatment is necessary to adequately treat the pain caused by the work injury. Consequently, any such future counseling and treatment would be causally related to the work injury and should be furnished by defen dants if the Veterans Administration is unable or unwilling Page 6 to provide such counseling or treatment. As a result of the work injury of August 19, 1987, claimant has suffered a 60 percent loss of earning capacity. Given the views of the University of Iowa Pain Clinic and those of Max Verling, the rehabilitation consultant, claimant failed to show a prima facie case that he is wholly unemployable or that his talents and skills are so limited in quality and quantity that a market for them does not exist. Verling testified that claimant has transferable supervisory, coordinating and estimating skills from his former management position from Prairie. Verling's testi mony was convincing. Less convincing was Verling's critical views of claimant's goal of achieving an engineering degree. Such a goal is concurred in by the State Vocational Rehabilitation counselors and the University of Iowa Pain Clinic. Verling has identified a few jobs which claimant could perform within his current activity restrictions, some of which are located at Prairie. However, despite a finding that claimant is employable, claimant's loss of earning capacity is extremely severe. Any placement now would have to be selective given his pain. Claimant is not able to perform construction work involving manual labor. Claimant's only work experience has been in construction work involving manual labor. Moving to a wholly total management or an administrative position in construction would be difficult for claimant. Although claimant has sufficient vocational rehabilitation potential given his past college course work, he has not completed this training. Basing an award in this decision upon an assumption that he will in fact complete his education and obtain an engineering job would be highly speculative and improper. Claimant is 42 years of age. He should be in the most productive era of his working life. His disability is more severe than would the case for a younger or an older individual. Claimant's earnings were in excess of $45,000 annually at the time of injury. The jobs identified by Verling pay from $24,000 to $31,000 annually. With reference to claimant's gross rate of compensa tion, it is found that claimant worked a total of 639.5 hours in the 13 week period prior to the injury. Although three of these weeks did not contain a full 40 hour work week, it is found that having less than 40 hours of work in a week on occasion was customary for claimant in his job. It was also customary for claimant to work in excess of 40 hours a week on a regular basis and this fact is reflected in this 13 week period prior to the injury. It is found that all of the weeks during the 13 week period prior to the injury are representative. Claimant was not sick or on vacation during any of these periods of time. Claimant's regular hourly rate was $13.00 an hour. Claimant received a subsistence allowance of $30 per day and mileage expenses when he was working at sites not within normal or reasonable commuting distance from his home. It is found that the sub sistence payment and mileage expense payment were not earn ings but reimbursement for expenses as they were paid only when claimant was incurring travel expenses. These payments were reasonably related to the actual cost incurred by Page 7 claimant. With reference to claimant's entitlement to exemptions, at the time of the injury, claimant was under a court ordered obligation to pay for the support of four minor children from a previous marriage. It is further found that claimant was not current in his child support obligations and this was admitted by claimant at hearing. Furthermore, it is found that claimant may have been supporting two chil dren living with him during his second marriage at the time of injury but these children were not his own. He was under no obligation to support any of these children and he has not done so since separating from his second wife. The reasonableness of the medical expenses set forth in exhibits 34 and 35 is in dispute. Based upon claimant's testimony that these expenses were incurred by him upon the direction of a licensed physician in this state and in the absence of contrary evidence, it is found that the expenses listed in exhibits 34 and 35 are necessary and related to the work injury found herein. With reference to the reasonableness of the charges, claimant testified that he paid the prescription medications set forth in exhibit 35 and he further testified that the charges for the medical services set forth in exhibit 34 are reasonable. Claimant paid the YMCA membership, the parking fees and travel expenses listed in exhibit 34. The balance of the charges in exhibit 34 are apparently unpaid to date. As will be explained in the conclusions of law portion of this decision, claimant's testimony as to reasonableness of the charges cannot be considered evidence by the undersigned. However, evidence of payment is evidence of reasonableness of the charges. Therefore, based upon claimant's testimony that he paid the expense listed in exhibit 35 and the parking and travel expenses, it is found that such charges are reasonable because there's no contrary evidence. With reference to the issue of penalty benefits, claimant was paid 54 4/7 weeks of permanent partial disabil ity benefits prior to hearing beginning on November 4, 1988. conclusions of law I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or Page 8 may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). This agency has decided that an assessment of future success of retraining is improper in an industrial disabil ity case. Such an assessment is too speculative. It is only claimant's present not future earning capacity which is to be measured in awarding permanent disability benefits. Stewart v. Crouse Cartage Company, Appeal Decision filed February 20, 1987; Umphress v. Armstrong Rubber Co., Appeal Decision filed August 27, 1987. Therefore, claimant's pre sent industrial disability will be fully compensated. Certainly, if claimant's educational efforts are eventually successful, this agency is available upon proper petition by defendants to review this award at a later date. Claimant argues for application of the odd-lot doc trine. This doctrine is a procedure device designed to shift the burden of proof with respect to employability to the employer in certain factual situations. Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986). A worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well known branch of the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). This doctrine is applicable, however, only when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market. If such a showing is made, burden to produce evidence shifts to the employer on the issue of availability of employment. In the case sub judice, claimant failed to show a prima facie case that he is unemployable in the labor market. Therefore, the odd-lot doctrine is not applicable to this case. However, it was found that claimant suffers from a 60 percent loss of earning capacity as a result of the work injury. Based upon such a finding, claimant is entitled as a matter of law to 300 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 60 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subjection. As claimant has established entitlement to permanent partial disability, claimant is entitled to weekly benefits Page 9 for healing period under Iowa Code section 85.34 from the date of injury until claimant returned to work; until claimant is medically capable of returning to substantial similar work to the work he was performing at the time of the injury; or, until it is indicated that significant improvement from the injury is no longer anticipated, whichever occurs first. It was found that claimant did not reach maximum healing after leaving work until completion of the Pain Clinic on July 21, 1989. It was stipulated that claimant was off work from October 24, 1988 until that time. Healing period benefits will be awarded accordingly. II. It has been held that there must be evidence of the reasonableness of a medical expense to support finding that the expenses are reasonable. Although claimant's tes timony may be evidence of the necessity of the charges, absent a showing of expertise, testimony from a lay witness such as claimant that the charges are reasonable is not evi dence of reasonableness of the charges. See Anderson v. High Rise Construction Specialists, Inc., Appeal Decision July 31, 1990, File No. 850996. The Anderson case is a binding precedent upon the undersigned deputy commissioner. Agency expertise apparently cannot be utilized to make such a finding. However, Iowa courts have held that the fact of payment alone is evidence of reasonableness and sufficient to carry the question of reasonableness to the finder of fact. Lawson v. Forcyce, 237 Iowa 28, 50, 51, 21 N.W.2d 69 (Iowa 1945). Therefore, in the absence of contrary evi dence, it was found that these requested expenses paid by claimant are reasonable. Consequently, these expenses will be awarded herein. However, the expenses which remain unpaid cannot be awarded due to a lack of evidence of their reasonableness. Furthermore, defendants assert a right to control the medical expenses and allege that many of the claimed expenses were not authorized by them. However, they have denied liability for the condition being treated according to paragraph 8, subparagraph C of the prehearing report. Therefore, claimant had no right to choose the care. Kindhart v. Fort Des Moines Hotel, I Iowa Industrial Commissioner Decisions 3, 611 (Appeal Decision 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). III. It was found that claimant earned $13 per hour for regular non-overtime work at the time of injury and worked a total of 639.5 hours over 13 weeks prior to the injury. It was found that the hours of work were represen tative of claimant's earnings. Using the straight rate for all hours as required by rule 343 IAC 8.2, claimant's gross weekly earnings averaged $639.50 per week. With reference to claimant's exemptions, the case cited by claimant in his brief, Biggs v. Donner, II Iowa Industrial Commissioner Reports 34 (Appeal Decision 1982) is still a binding agency precedent upon the undersigned. According to that appeal decision, although claimant is not current on child support payments, his natural children for which he is legally obli gated to support are qualified exemptions for the claimant. On the other hand, step-children living with claimant at the Page 10 time of hearing are not qualified exemptions. Claimant's wife was living with him and was dependent upon him at the time of injury. Therefore, claimant is entitled to six exemptions. Given claimant's marital status and six exemp tions, claimant's rate of compensation according to the com missioner's rate booklet for injury in August 1987 is $404.28. Finally, the rate did not take into account the subsistence allowance and mileage expenses. Reimbursement for expenses are not earnings to be included in gross weekly earnings. Iowa Code section 85.61(12). IV. Finally, claimant seeks additional weekly bene fits as a penalty. The unnumbered paragraph of Iowa Code section 86.13 states that if a delay in commencement or ter mination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award extra weekly benefits in an amount not to exceed 50 percent of the amount of benefits that were unreasonably delayed or denied. Defendants may deny or delay the benefits only when the claim is fairly debatable. Seydel v. U of I Physical Plant, Appeal Decision November 1, 1989. When the claim is "fairly debatable" the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. In this case, the occurrence of a work injury and its causal connection to both temporary total and permanent dis ability was not fairly debatable and was not disputed. The causal connection of claimant's neck and arm problems and the extent of healing period benefits were fairly debatable issues. However, the existence of a significant industrial disability was not fairly debatable as a result of the low back pain and leg problems. Prior to the hearing, claimant was only paid 54 4/7 weeks of permanent partial disability benefits from November 3, 1988 through November 20, 1989. This is approximately equivalent to the 10 percent impair ment rating issued by the University of Iowa Pain Clinic. However, claimant never returned to work and was not capable of ever returning to the job he performed at the time of injury. It is apparent that claimant was paid these bene fits based only on the impairment rating. To limit payment to an impairment rating in a clear industrial disability case where claimant has suffered a loss of his job and the ability to return to his job or to a similar job is not fairly debatable and unreasonable. Impairment is only one factor among many factors of industrial disability and loss of earning capacity according to the cases cited above. To pay only an impairment rating under these set of circum stances and facts as a matter of law is unreasonable. More importantly, there is nothing offered in the record by defendants to show their rationale for limiting payments to only the 10 percent of 500 weeks. Therefore, additional weekly benefits of 50 weeks will be assessed against the defendants for this unreasonable conduct. order 1. Defendants shall pay to claimant three hundred (300) weeks of permanent partial disability benefits at the rate of four hundred four and 28/l00 dollars ($404.28) per week from July 21, 1989. Page 11 2. Defendants shall pay healing period benefits from October 24, 1988 through July 20, 1989, at the rate of four hundred four and 28/l00 dollars ($404.28) per week. 3. Defendants shall reimburse claimant for all of the medical expenses listed in exhibit 35 and only the YMCA mem bership, medical parking and travel expenses listed in exhibit 34. 4. Defendants shall pay fifty (50) weeks of penalty benefits from November 21, 1989 at the same rate as other weekly benefits awarded herein. 5. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid. 6. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 8. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of October, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James Spellman Attorney at Law 1119 High Des Moines IA 50308 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg Des Moines IA 50309 1803; 2500; 3000; 4000.2; 4100 Filed October 25, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : BERNARD SCHNEIDER, : : Claimant, : : vs. : : File No. 869747 PRAIRIE CONTRACTORS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Sixty percent industrial disability awarded to unemployed carpenter foreman who is currently attempting retraining to be a civil engineering. Held: Any assumption at this point in time that he will complete his retraining and be successful in a job search would be speculative and improper. 2500 Applying agency precedent, claimant's testimony that the charges for medical services were reasonable was not considered as evidence of reasonableness. Therefore, absent evidence of reasonableness, the claim for unpaid medical expenses were denied. However, applying prior Iowa law that evidence of payment is sufficient evidence to submit the question of reasonableness to the finder of fact, those bills paid by claimant were found reasonable and awarded to claimant. 3000 Citing a 1982 agency precedent, although claimant was not current in his child support payments, claimant is able to claim expenses for all natural children for which he has a support obligation. This same precedent also denies exemptions for step-children living with the claimant at the time of injury when there is no legal obligation to support these children. 4000.2 Penalty benefits. An additional 50 weeks of compensation awarded as a penalty. Claimant had not been reemployed since leaving work due to the injury. It was held that limiting payment of permanent partial disability benefits to a 10 percent impairment rating is by law unreasonable when claimant's liability for a significant industrial disability is clear and undisputed. 4100 Application of the odd-lot doctrine was refused as claimant failed to show a prima facie case for unemployability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BERNARD SCHNEIDER, : : Claimant, : : File No. 869747 vs. : : M O D I F I C A T I O N PRAIRIE CONTRACTORS, INC., : : O F Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ Claimant moves to amend the findings of fact and conclusions of law contained in the arbitration decision filed October 25, 1991, with reference to healing period and exemptions. With reference to healing period, claimant states that the prehearing report is incorrect as to times off work. However, this report is not incorrect. Paragraph four of the report stipulated that claimant is seeking heal ing period benefits from October 24, 1988. Paragraph 10 of the report stipulated that claimant had already been paid healing period benefits from October 24, 1987 through October 23, 1988, prior to the hearing. Obviously, claimant was not seeking double payment of these benefits before October 24, 1988. However, in retrospect, the decision could be misinter preted to mean that the award of benefits from October 24, 1988 through July 20, 1989, was a holding as to the entire healing period. Therefore, the following sentence is added to the conclusions of law section: Claimant's entitlement to healing period benefits extends from October 24, 1987 through July 20, 1989. Claimant has been paid these benefits through October 23, 1988. The Order portion of this decision will award the balance of the remaining entitlement to healing period benefits. With reference to exemptions, claimant seeks a finding that he supported the two minor step children at the time of injury. Such a finding was made in the decision. As explained in the conclusions of law section, such finding still did not entitle claimant to claim these exemptions for reasons explained in the conclusions of law portion of the decision. Page 2 Signed and filed this ____ day of November, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James Spellman Attorney at Law 1119 High Des Moines IA 50308 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg Des Moines IA 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RONDA WEESE, Claimant, vs. File No. 869869 BUNN-O-MATIC CORPORATION, A P P E A L Employer, D E C I S I O N and INSURANCE COMPANY OF NORTH AMERICA (Sued as CIGNA), Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 27, 1993 is affirmed and is adopted as the final agency action in this case. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. shall pay all other costs. Signed and filed this ____ day of February, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Curtis J. Krull Attorney at Law 317 Sixth Ave., Ste 500 Des Moines, Iowa 50309 Mr. Jeffrey A. Baker Attorney at Law 729 Insurance Exchange Bldg. Des Moines, Iowa 50309 1802; 1402.30; 1108.50; 2209; 2503 Filed February 28, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RONDA WEESE, Claimant, vs. File No. 869869 BUNN-O-MATIC CORPORATION, A P P E A L Employer, D E C I S I O N and INSURANCE COMPANY OF NORTH AMERICA (Sued as CIGNA), Insurance Carrier, Defendants. ____________________________________________________________ 2503 Where claimant sought additional care without contacting the employer or its insurance carrier, the authorization defense succeeded. 1802; 1402.30; 1108.50; 2209 The assessment of the case made by the treating physician from Mayo Clinic was accepted over an assessment made by Dr. Neff from reviewing records. The specialist at Mayo Clinic was found to be a higher level of expertise and to have more knowledge concerning the case as a result of his being a treating physician. Further, the history relied upon by Dr. Neff was found to be insufficient because it assumed a complete recovery following the claimant's first surgery when in fact the record showed a continuation of symptoms whenever any type of moderate activity was attempted by the claimant. Claimant awarded additional healing period benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RONDA WEESE, : : Claimant, : : vs. : : File No. 869869 BUNN-O-MATIC CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : INSURANCE CO OF NORTH : AMERICA (sued as CIGNA), : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ronda Weese against her former employer, Bunn-O-Matic, based upon an injury of September 29, 1987. Claimant seeks to recover additional compensation for healing period and payment of medical expenses. She acknowledges receipt of all healing period compensation which was payable prior to June 17, 1988. No claim is made for additional permanent partial disability compensation. The record in the case contains testimony from Ronda Weese. The record also contains jointly offered exhibits 1 through 6, including exhibit 2 to the deposition of Peter C. Amadio, M.D., which deposition is in the record as exhibit 6. FINDINGS OF FACT Ronda Weese was employed by Bunn-O-Matic from March 1987 through January 1988. She developed pain in her right wrist including the back of her hand and forearm and was seen by Larry W. Goetz, M.D., the employer-selected physician, at the Creston Medical Clinic on October 26, 1987. The initial notes indicate that she uses an air tool approximately six out of eight hours per work day and that the rest of the time is spent performing a twisting motion with pliers. His notes state: Her grip on the right is less than the left and she has pain even with doing the Tinel's testing of the right wrist and pain at the distal portion of the mid flexor retinaculum. She has no tenderness at the elbow at this time. Does get pain in her wrist and forearm with supination and pronation. Page 2 (exhibit 5B, page 20) Dr. Goetz diagnosed claimant as having tenosynovitis, carpal tunnel syndrome, and advised her that she had a "classic situation." Claimant was placed into physical therapy and given prescription medication and a splint. (exhibit 5b, page 20, 21). Claimant was seen again by Dr. Goetz on November 6, 1987, at which time she reported that therapy had increased the pain. At the request of "Shirley in management at Bunn-o-matic [sic]" claimant was scheduled for EMG testing. She was also advised to see a surgeon and given stronger pain medication (ex. 5B, p. 21). An EMG was conducted on November 13, 1987, and was interpreted as being normal (ex. 5H, p. 121; ex. 5K, p. 132). Claimant was seen by Surgeon Robert M. Kuhl, M.D. She underwent right carpal tunnel decompression surgery on December 3, 1987. The prepatient surgical history and physical notes that the Tinel's at the right wrist crease produced pain but very little radiation. The Phalen's test produced pain in the wrist area but no numbness (ex. 5F, p. 113). Agency expertise is relied upon to note that the Tinel's and Phalen's tests typically produce tingling or numbness in the thumb, first and middle fingers if the median nerve is compressed at the wrist area, the condition which constitutes carpal tunnel syndrome. In persons with carpal tunnel syndrome, EMG tests are usually not interpreted as being normal. It is noted that none of the presurgical records in evidence in this case make reference to the presence of numbness and tingling in the thumb, first and middle fingers of claimant's right hand. The only comment that is consistent with the existence of carpal tunnel syndrome is that the hand falls asleep at night. The statement that it involves all of her fingers is, again, inconsistent with carpal tunnel syndrome since the condition does not involve the ring and little finger because their nerve function is supplied by the ulnar nerve. It is also noted that in the pre-outpatient surgical history and physical, the wrist x-ray is stated to be essentially normal (ex. 5F, p. 114). Interestingly, the operative record prepared by Dr. Kuhl makes reference to "...totally decompressing the median nerve." It also contains the statement, "It was felt that the ulnar nerve area had been freed up adequately." (ex. 5F, p. 115). There are ample indications that the original diagnosis was not completely correct. Eleven days after surgery claimant was again seen by Dr. Kuhl and was placed into physical therapy. The report from the physical therapist notes the existence of clicking in the wrist with pronation and supination and attributes it to soft tissue swelling. Agency expertise is relied upon to comment that such clicking is unusual following carpal tunnel release surgery. The first visit for therapy was on December 16, 1987. She was given written exercises. In Page 3 early December claimant's incision opened as a result of her shoveling snow. No physician has indicated that the incident is responsible for any of her continuing problems. Notes subsequent to that incident a complete lack of symptoms. The second visit was on January 6, 1988, at which time is was noted that she was doing very well. She was then encouraged to use her hand actively in her activities of daily living. Claimant expressed a strong desire to return to the job she had been performing (ex. 5H, p. 124). When claimant was seen by Dr. Kuhl on December 18, 1987, the notes indicate that she was having no pain at all in the hand. He released her to return to work effective January 12, 1988, "...with no specific restrictions." (ex. 5B, p. 123). A note from Dr. Kuhl dated January 21, 1988, notes that Ronda had started back to work and did well until being placed on an air gun at which time she again experienced significant pain in the wrist area, just above the wrist crease. She exhibited no Tinel's sign and no Phalen's sign (ex. 5B, p. 123). Claimant was again seen by Dr. Kuhl on February 19, 1988, at which time she continued to have pain in her right wrist and the back of her hand. She expressed concern because she felt that she was not improved since the surgery (ex. 5B, p. 124). Claimant was seen by the physical therapist on January 20 and February 27, 1988, at which times she complained of wrist pain. The physical therapist notes that she was not experiencing numbness or tingling in her hand and that pain was present along the lateral aspect of the wrist joint and into the fourth and fifth fingers. She complained of pain in the right elbow when she had her arm up overhead as when curling her hair (ex. 5H, p. 125). It should be noted that during this time, claimant was attempting to return to work and was not being successful at achieving a return to work due to her pain. Dr. Kuhl eventually referred claimant to Orthopedic Surgeon Arnis Grundberg on March 31, 1988. Dr. Kuhl's referral letter indicates that she has no hand numbness or nerve entrapment symptomatology, simply an area of pain and discomfort just above the wrist crease in the mid-aspect of the right distal forearm. He notes the possibility of a ganglion or a neuroma though he found no indication of such in his examination (ex. 5B, p. 32). Dr. Grundberg's report appears in the record at exhibit 5C, pages 34-46. His note of April 15, 1988, indicates that she has had no numbness and tingling like she did before the operation. It is not known whether he assumed that she had numbness and tingling before the operation or whether she expressly told him that she had numbness and tingling before the operation. No such symptoms are noted in the pre-surgical records. The note shows that the Tinel's sign was negative and that the Phalen's test caused pain at the wrist but no numbness or tingling. These are the same results as are shown in the records from before the surgery was performed. X-rays of the right wrist were interpreted as being normal. Dr. Grundberg found that claimant had no Page 4 tenderness over the ulnar nerve at the elbow though she had some discomfort at the elbow. The Tinel's sign at the elbow was negative. Dr. Grundberg provided an impairment rating of 10 percent of the right hand due to residuals from carpal tunnel syndrome (ex. 5C, pp. 35-36). In a note of May 6, 1988, Dr. Grundberg indicated that claimant could return to work at Bunn-O-Matic if they have work for her that does not involve the use of an air gun, an air screwdriver, pliers and does not involve repetitive work. Claimant was unable to resume work because no conforming work was available. Claimant's employment at Bunn-O-Matic was terminated due to her inability to perform the physical functions required of that employment. Claimant did, shortly thereafter, obtain employment in Sernett Department Store. She worked principally in the fabric department. Her job duties included using scissors to cut fabric for customers. The fact that she was able to perform that work for approximately nine months is strong evidence that the work placed much less stress and trauma on her hand than had the work at Bunn-O-Matic which she was not able to resume. The amount of time operating scissors would be relatively small since work in a fabric department includes taking the bolt of fabric from a rack, laying it on a cutting table, measuring the appropriate amount, cutting it off, returning the bolt to the storage rack, and then going to the cash register with the customer to collect payment for the fabric. The activity of operating the scissors would likely produce symptoms in a person who had a defect or injury in their hand. It would not be likely to produce damage to the hand, however, in view of the limited exertion involved and the limited amount of time scissors would actually be used in a typical work day. When compared to eight hours of running air tools or pliers at Bunn-O-Matic, the amount of stress and strain from the Sernett store is insignificant. On February 16, 1989, claimant sought care from Douglas S. Reagan, M.D., an orthopedic surgeon in Des Moines, Iowa, who like Dr. Grundberg has a subspecialty in hand and arm surgery. A substantial error appears in the first paragraph of his February 16, 1989 note, but that error is corrected in a note dated March 24, 1989. His initial notes list tenderness at the medial site of her right elbow and that the fourth and fifth fingers of her right hand go to sleep when she is sleeping. Dr. Reagan found a positive Tinel's test at the right wrist in the ulnar (fourth and fifth) fingers. He found her to have a positive Tinel's, positive Phalen's and negative Allen's tests at the wrist. Her Tinel's at the elbow was positive. He diagnosed her as having probable residual carpal tunnel syndrome, ulnar tunnel syndrome and cubital tunnel syndrome. EMG tests were again conducted on February 28, 1988, and were again interpreted as normal (ex. 5H, p. 122). Conservative care did not resolve claimant's complaints. The note of April 10, 1989, indicates that her Tinel's sign is tender but that she does not have a true Tinel's. This Page 5 is construed to mean that the tests showed pain but did not show radiation, tingling or numbness (ex. 5C, pp. 37-38). EMG's were then repeated which showed compression of the ulnar nerve at her elbows, bilaterally (ex. 5H, p. 123). An arthrogram showed a tear of the triangular fibrocartilage in her wrist. This is the cartilage which is at the distal end of the ulna. On June 14, 1989, Dr. Reagan performed surgery consisting of arthroscopy of the wrist with debridement of the torn triangular fibrocartilage, repeat carpal tunnel release, excision of an interconnecting muscle between the thumb flexor and the profundus of the index finger, ulnar tunnel release and cubital tunnel release (ulnar nerve at the elbow) (ex. 5C, pp. 40, 43, 44). By November 2, 1989, Ronda's complaints were much improved though she still had tenderness over the distal end of the ulna. It is in that office note that the increased length of the ulna is first noted. Further medication or aggressive treatment was deferred due to claimant being pregnant. In a note of January 18, 1990, Dr. Reagan notes pain at the pisotriquetral joint and tenderness at the interspace between the fourth and fifth and third and fourth metacarpals (ex. 5C, p. 41). When seen again on June 4, 1990, the pain was at the fourth and fifth CMC joints. The ulnar nerve was tender and was noted to sublux. The pisiform was also tender and she had tenderness over the flexor tendon. Claimant was seen on July 30, 1990, at the University of Iowa Hospitals and Clinics. The assessment made was that she had ulnar side wrist and hand pain of unknown etiology (origin). They also found no evidence of ulnar abutment syndrome. They agreed with Dr. Reagan that the case was a diagnostic dilemma (ex. 5I, p. 127). In August 1990, claimant began seeking care at the Mayo Clinic through a referral from Dr. Reagan to Peter C. Amadio, M.D. Dr. Reagan had released claimant to return to restricted work effective August 16, 1990 (ex. 5C, p. 42). She had left Sernett effective March 24, 1989, after having been advised to leave that work by Dr. Reagan (ex. 5C, p. 38). On October 29, 1990, claimant began active treatment at the Mayo Clinic. Dr. Amadio was her principle treating physician. Her first visit at Mayo Clinic was October 19, 1990. An MMPI was performed which showed her to be mildly depressed and pessimistic and found her number of physical symptoms and concern about bodily functions to be fairly typical for a medical patient. There was no indication of symptom exaggeration (ex. 5D, p. 50). EMG tests were normal (ex. 5D, pp. 51-52). Dr. Amadio diagnosed claimant as having right ulnocarpal abuttment syndrome and persistent right ulnar neuropathy. On October 30, 1990, right wrist arthrotomy surgery was performed, shortening the right ulna. Transposition of the right ulnar nerve at the elbow was also performed (ex. 5D, pp. 61, 69, 70). The surgery was successful and Dr. Amadio felt that she had recovered from Page 6 that surgery on March 1, 1991 (ex. 5D, p. 73; ex. 6, pp. 45-47). After achieving considerable success from Dr. Amadio's first surgery, claimant reported an additional persisting problem which was in the region of the pisiform bone. Dr. Amadio diagnosed right pisotriquetral arthritis (ex. 5D, p. 65). When next seen on April 4, 1991, claimant also voiced complaints in the region of the fourth and fifth metacarpal. This was also presented as a symptom which had been present, but which had not been treated due to her more troublesome wrist pain. After diagnostic testing Dr. Amadio diagnosed instability of the fifth carpometacarpal joint. On May 9, 1991, Dr. Amadio performed additional surgery consisting of excision of the pisiform bone and fusion of the right fourth and fifth carpometacarpals (ex. 5D, pp. 76, 90, 91). For this second surgery claimant entered into care on May 8, 1991, and completed recuperation on November 15, 1991 (ex. 5D, pp. 90-94; ex. 6, pp. 45-47). A solid union was not obtained with the fifth carpometacarpal arthrodesis. On July 28, 1992, a repeat of that surgery was performed (ex. 6, deposition ex. 2). On this attempt a solid fusion was obtained. According to Dr. Amadio recuperation from that surgery was completed on November 9, 1992 (ex. 6, pp. 45-47). By the date of hearing claimant had resumed employment working at a nursing home. She still has some difficulty with her right hand, but it is much improved over the situation that existed following the surgery which was performed by Dr. Kuhl. Based upon the history he has received, Dr. Amadio has indicated repeatedly that he feels that all of the conditions which he treated were causally connected with the original work and repetitive work activity that claimant performed at Bunn-O-Matic (ex. 5D, p. 89; dep. ex. 2 to ex. 7 at note dated 4-7-93 and ex. 6, pp. 4, 11, 14, 21-25, 38, 41, 42). As indicated by Dr.. Amadio the absence of a symptom being noted in medical records does not establish that the symptom was not present (ex. 6, pp. 18, 41, 44). A negative EMG does not necessarily establish that nerve entrapment does not exist (ex. 6, pp. 19-28). Dr. Amadio explained that ulnocarpal abuttment syndrome is a predisposing condition that places a person at risk but that trauma is required to produce a tear of the cartilage (ex. 6, pp. 29-30). Dr. Amadio explained that once the cartilage is torn it is inevitable that the tear will widen and that arthritis will develop. He stated that once a condition begins, often times it slowly worsens (ex. 6, p. 31). Dr. Amadio explained that arthritis of the pisiform bone is typically a result of repetitive work (ex. 6, pp. 34-35). Dr. Amadio notes that some of claimant's symptoms may have been missed during the time from 1987 through 1991 because they were overshadowed by other symptoms (ex. 6, pp. 42-43). Dr. Amadio explained that production work in a factory is much more strenuous and traumatic than typical work in a Page 7 department store or functions such as shucking corn or snapping beans from a garden and that it was highly unlikely that the department store or gardening activities produced the conditions which he treated (ex. 6, pp. 41-42). Claimant's records were evaluated by Scott Neff, D.O., a physician to whom defendants commonly refer claimants if the defendants wish to obtain a relatively low impairment rating or an opinion that causal connection does not exist. In this case Dr. Neff expressed the opinion that the conditions treated by Dr. Amadio were not caused by the employment because those symptoms developed after claimant separated from her employment with Bunn-O-Matic. He concludes that a tear in the triangular fibrocartilage was apparently not evident during Dr. Kuhl's evaluation (ex. 5A. p. 17). Since an arthrogram was not performed by Kuhl it is not known how Dr. Neff reached that conclusion. In this case it is determined that Dr. Amadio's assessment is correct. He is a specialist at the highly regard Mayo Clinic. His explanation that the greater symptoms masked the lesser symptoms as far as the pisiform bone and carpometacarpal instability are concerned is certainly reasonable. It is corroborated by claimant's own testimony. It is very evident from the record in this case that the surgery performed by Dr. Kuhl in 1987 did not solve the problem that this claimant was having in 1987. The records do not show the classic carpal tunnel complaints of numbness and tingling in the thumb, first and middle fingers in those initial entries which were made prior to the time of the surgery. While this claimant may very well have had carpal tunnel syndrome, the greater probability is that she also had the torn ulnar cartilage, a part of the diagnosis which was probably missed by Dr. Kuhl. The existence of such a tear provides a very plausible explanation for why she continued to have pain after surgery when nerve constriction symptoms were absent. It provides a very plausible explanation for why the initial carpal tunnel surgery was not successful. It provides a very plausible explanation for why the claimant was not able to tolerate resumption of work at Bunn-O-Matic. Dr. Amadio quite accurately stated that claimant's history consisted of recurrence or persistent symptomatology. His impression was that every time she tried to increase her activity or do anything that her hand bothered her. He concluded that this did not show an increase in symptoms. It merely showed the existence of a problem (ex. 6, pp. 20, 21, 38, 43). Dr. Amadio compared what has happened in this case to the act of pushing a bowling ball off the top step of a flight of stairs and the ball then rolling with increasing speed to the bottom. Agency expertise is relied upon to note that individuals with carpal tunnel syndrome often develop cubital tunnel syndrome as well and that the cubital tunnel syndrome complaints are often not diagnosed until after carpal tunnel surgery has been unsuccessful at resolving the complaints. In some cases thoracic outlet Page 8 syndrome follows. While a comparison to a bowling ball rolling down stairs may not necessarily be 100 percent accurate, the condition is, nevertheless, one in which one event commonly precipitates another. The undersigned would compare it to using a pool cue to strike a cue ball, which in turn strikes another ball which in turn strikes another. The whole sequence of events starts with the pool cue striking the cue ball and it is that action which causes other balls to be struck and moved. As far as professional status is concerned, it should be noted that Dr. Neff is an orthopedic surgeon. Dr. Reagan is an orthopedic surgeon with a subspecialty in hand and upper extremity surgery. Dr. Reagan's level of professional expertise for this case is therefore higher than that of Dr. Neff. Dr. Reagan in turn referred claimant on to Dr. Amadio at the Mayo Clinic. Accordingly, Dr. Amadio's expertise is considered to be the highest of those three orthopedic surgeons. Dr. Kuhl's is considered by the undersigned to be the lowest of all four surgeons who have a significant role in this case. Further, Dr. Amadio is a principle treating physician. This also is a very significant factor which is relied upon when assessing the positions and opinions of the various physicians in this case. As previously indicated, the assessment made by Dr. Amadio is accepted as being correct. The history he relies upon is one of continuing and resurfacing symptoms. That history is found to be correct. It is noted that during periods of inactivity claimant's symptoms subsided. She was understandably relatively inactive immediately following each of her surgeries. Dr. Neff's assessment that she recovered following Dr. Kuhl's surgery is not correct. She certainly did not recover because she was unable to resume her employment. As soon as she attempted to resume the routine activities of her employment at Bunn-O-Matic her symptoms returned. The record in this case fails to show that this claimant requested to see Dr. Reagan or Dr. Amadio or in any other manner made any indication to the employer or its insurance carrier that she was seeking additional medical care. Claimant did not give her employer or its insurance carrier a reasonable opportunity to exercise their right to direct medical care. CONCLUSIONS OF LAW In this case the claimant seeks to recover additional healing period compensation as well as payment of medical expenses. The bulk of the medical expenses have apparently been paid by a group carrier which provides coverage to her through her husband's employment. Iowa Code section 85.27 gives employers in the state of Iowa the right to choose the care which an injured employee is to receive. It is generally held that the employee should ordinarily not incur medical expense without first giving the employer a reasonable opportunity to furnish such services. If the employee fails to do so the employee will Page 9 be liable for the expenses which are incurred without the consent of the employer. 2 Larson Workmen's Compensation Law, 61.12(a)(e); Richards v. Department of General Services, Vol 1 No. 3 State of Iowa Industrial Commissioner Decisions 684 (App. Dec. 1985). In this case claimant's medical bills were not introduced into evidence because the claimant was unable to show that they had previously been submitted to the defendants prior to hearing. The failure to do so violated normal rules of discovery and the hearing assignment order. Absent a showing that the defendants had previously been served or provided with the bills for which recovery was sought, they cannot be held to prepare to defend against those bills. Accordingly, the claimant was not allowed to offer the bills into evidence. Further, in order to recover where the employee chooses the doctor, it is necessary for the employee to show that the employer was given notice that further care was desired and the employee must also show that the employer failed to provide reasonable care when requested. Evidence of that nature is also lacking in this case. It is therefore determined that defendants are not required to pay any of the medical expenses incurred by claimant with Dr. Reagan, Dr. Amadio, the Mayo Clinic, or any other providers of services who became involved as part of the course of treatment provided by Doctors Reagan or Amadio. Claimant also seeks healing period compensation for the period of time running from June 17, 1988 through November 9, 1992. In order to recover she must prove not only that she was disabled, but also that the original work injury at Bunn-O-Matic was a proximate cause of the disability. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). In this case it has been found that Dr. Amadio's Page 10 assessment is correct. It is therefore determined that the September 29, 1987 cumulative injury is a proximate cause of all the conditions which Doctors Reagan and Amadio treated and of all periods of disability associated with those conditions and the surgeries that were performed to remedy those conditions. It is noted that September 29, 1987, may not be a technically correct date of injury to be used in this case but it is clear that the right hand condition, which is the subject of this case, is the injury being dealt with. Claimant seeks additional healing period compensation. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). In this case it is determined that Ronda Weese is entitled to recover additional healing period on four separate occasions, all of which total 132 6/7 weeks. Healing period benefits are not payable when a person is physically capable of working or is not in a status of recuperation. Claimant is not entitled to recover healing period when she was working at Sernett. Her first of these four additional healing periods commences March 24, 1989, when she was under Dr. Reagan's care and it runs through August 16, 1990, when Dr. Reagan released her to return to work. This is a span of 73 weeks. The second of the additional healing periods commences on October 30, 1990 with the first surgery performed by Dr. Amadio. It ends on March 1, 1991, as indicated by Dr. Amadio in his deposition. This is a span of 17 4/7 weeks. The third commences on May 9, 1991, with the second surgery performed by Dr. Amadio. It runs through November 15, 1991, a span of 27 2/7 weeks. The fourth and final session of healing period entitlement commences with the July 28, 1992 surgery performed by Dr. Amadio and terminates on November 9, 1992, as indicated by Dr. Amadio. ORDER IT IS THEREFORE ORDERED that defendants pay Ronda Weese one hundred thirty-two and six-sevenths (132 6/7) weeks of compensation for healing period payable at the rate of one hundred thirty-three and 14/100 dollars ($133.14) per week with seventy-three (73) weeks thereof payable commencing March 24, 1989; with seventeen and four-sevenths (17 4/7) weeks thereof payable commencing October 30, 1990; with Page 11 twenty-seven and two-sevenths (27 2/7) weeks thereof payable commencing May 9, 1991 and with fifteen (15) weeks thereof payable commencing July 28, 1992. The entire amount is past due and owing and shall be paid to the claimant in a lump sum together with interest computed pursuant to section 85.30 from the date each weekly payment came due until the date it is actually paid. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency. Signed and filed this ____ day of September, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Curtis J. Krull Attorney at Law 318 6th Ave STE 500 Des Moines, Iowa 50309 Mr. Jeffrey Baker Attorney at Law 729 Insurance Exchange Bldg Des Moines, Iowa 50309 1802 1402.30 1108.50 2209 2503 Filed September 27, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RONDA WEESE, Claimant, vs. File No. 869869 BUNN-O-MATIC CORPORATION, A R B I T R A T I O N Employer, D E C I S I O N and INSURANCE CO OF NORTH AMERICA (sued as CIGNA), Insurance Carrier, Defendants. ___________________________________________________________ 2503 Where claimant sought additional care without contacting the employer or its insurance carrier, the authorization defense succeeded. 1802 1402.30 1108.50 2209 The assessment of the case made by the treating physician from Mayo Clinic was accepted over an assessment made by Dr. Neff from reviewing records. The specialist at Mayo Clinic was found to be a higher level of expertise and to have more knowledge concerning the case as a result of his being a treating physician. Further, the history relied upon by Dr. Neff was found to be insufficient because it assumed a complete recovery following the claimant's first surgery when in fact the record showed a continuation of symptoms whenever any type of moderate activity was attempted by the claimant. Claimant awarded additional healing period benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BILL ROUSTIO, : : Claimant, : : File No. 869879 vs. : : IOWA METHODIST MEDICAL : A R B I T R A T I O N CENTER, : : D E C I S I O N Employer, : : and : : AETNA CASUALTY & SURETY, : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by William Roustio, claimant, against Iowa Methodist Medical Center, employer, and Aetna Casualty & Surety Company, insurance company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on November 12, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner on February 13, 1990. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Sarah Roustio, Mary K. Hoogerwerf, Kathryn Bennett, Lynn Crank, and Eugene Veler, and Joint Exhibits 1 through 15, inclusive. issues Pursuant to the prehearing report and order submitted and approved February 13, 1990, the following issues are presented for resolution. 1. Whether the injury of November 12, 1987 is the cause of the permanent disability on which claimant now bases his claim; 2. The extent of claimant's entitlement, if any, to permanent partial disability benefits; 3. The applicability of the odd-lot doctrine; and 4. Claimant's entitlement to certain medical benefits provided by Iowa Code section 85.27. Although credit under Iowa Code section 85.38(2) had been in dispute at the time of the hearing, the parties have since advised the undersigned that: Page 2 The Pre-Hearing Report is correct in listing a credit of $7,692.88. We are agreeing by this letter that payment of this amount is stipulated and the entitlement to a credit for this amount is also stipulated. This issue, therefore, will not be addressed herein. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all the evidence, finds that: On November 12, 1987, claimant sustained an injury which arose out of and in the course of his employment when, while emptying an extractor into a sink, he "felt like somebody kicked [him] in the small of [his] back." Claimant, after reporting to the emergency room, remained off work for three or four days, then returned to work but left again as he could not do his job at that time. Claimant came under the care of Charles Denhart, M.D., who prescribed physical therapy and instructed claimant to remain active but off work. By December 7, 1987, claimant was reporting that he was feeling better until he had to fix a flat tire on December 6 which, according to claimant, "aggravated [the injury] but did not cause any more injury." On December 21, 1987, Dr. Denhart reported that claimant was continuing to slowly improve and although he complained of a "toothache like pain" in his mid low back, the pain did not radiate into either lower extremity. Claimant was advised to start a "slow work hardening program" in order to be ready to return to work. Claimant was arrested at the emergency room at Iowa Methodist Medical Center on January 2, 1988 after, in his own words, losing control of his pain and making an ass out of himself by insisting on more pain medication. When refused treatment at Iowa Methodist after his arrest, claimant's wife convinced him to see Lester Beachy, M.D., who saw him at and admitted him to Mercy Hospital Medical Center with a principle diagnosis of acute low back pain due to lumbosacral strain and a secondary diagnosis of acute psychotic episode. Claimant was discharged on January 5, 1988 with instructions to return to the low back clinic at Iowa Methodist Medical Clinic. Claimant saw Dr. Denhart again on January 11, 1988, at which time a CT scan was ordered and claimant was advised about the efficacy of narcotic medications over a long term. On January 18, 1988, Dr. Denhart reported: He has gotten a CT scan of the lumbar spine which demonstrated hypertrophic spurring at several levels. There is no evidence of neural compression or entrapment through L3-4. At the L4-5 level there is evidence for compression of the left L4 nerve root. The patient still does Page 3 not complain of radiating pain, but rather that the pain is localized in his low back. He continues to have symmetrical deep tendon reflexes in the knee jerks and ankle jerks at 1+, and the medial hamstrings jerks are trace. He complains of no loss of sensation and has no loss of strength in his lower extremities. I therefore am unsure whether he actually has a radiculopathy or not since he has no neurologic findings and no radiation of his pain. (Joint Exhibit 1, page 14) Claimant returned to see Dr. Denhart on January 25, 1988 because he fell on the ice that morning and had some change in the pain he was experiencing. Claimant felt his pain flared up and then settled back down to where it was. Dr. Denhart did not think claimant had seriously injured himself. Claimant saw Thomas Carlstrom, M.D., on January 29, 1988. Dr. Carlstrom opined: I saw his CT scan which does show some spondylosis but was not particularly unremarkable otherwise. On examination, he was slightly pudgy and has slightly diminished range of motion of his low back. His neurological exam was normal. I think this patient was experiencing symptoms of a myofascial low back syndrome. I do not think that further consideration for surgical treatment was warranted and would recommend probably at this point in time either a work-hardening effort or perhaps some type of job rehabilitation to change him to a lighter duty occupation. (Jt. Ex. 1, p. 90) A few days later, Dr. Denhart referred claimant to the chronic pain treatment program but on February 15, 1988, claimant was involved in an automobile accident described by him as a five car pileup. Dr. Denhart reported: He was driving on the freeway, and a car came over several lanes and hit another car, and he ran into this second car. He reports that he was initially going 50 miles an hour; however, was attempting to brake from the start of the incident, so was going slower when he actually hit the car. The car that he hit was stopped or nearly so at the time that he hit it. He complains of pain in the posterior neck, and also increased pian [sic] in the low back, so that it was approximately as bad as it had been when he first hurt his back. He went to the emergency room, was evaluated there, and no acute injuries were found. .... Page 4 Impression: I think the pain in the neck area is myofascial in nature. I continue to think that the back pain is mechanical and/or myofascial in nature. (Jt. Ex. 1, p. 11) Claimant originally resisted participating in a chronic pain clinic based on what other people had told him about such programs. On March 14, 1988, Dr. Denhart wrote: It has now been four months since his injury, and he has had essentially no improvement in his pain despite appropriate treatment. Therefore, I believe that he has reached maximum healing at this point. Also, since he does not appear to be improving with his Physical Therapy and indeed reports that it makes him uncomfortable for a time afterwards, I think it would be appropriate to discontinue this, at least for the time being. I plan to follow-up with him in approximately one month. With respect to degree of permanent partial impairment, since he does not have any loss of strength or sensation, I would base this impairment on his loss of range of motion as measured today. This would give a 10 percent permanent partial disability. (Jt. Ex. 1, p. 9) Dr. Denhart found claimant to be limited by an inability to lift over 20 pounds and an inability to bend and stoop. Claimant attempted to return to work for defendant employer June 1, 1988, but found he could not do the job. Claimant was released from Dr. Denhart's care on July 11, 1988 to return on a P.R.N. basis. Claimant was evaluated by Joshua D. Kimelman, D.O., of Orthopedic Associates, on May 31, 1988. Dr. Kimelman's impression was that claimant suffered from chronic lumbar strain without neurologic deficit and chronic pain syndrome. Dr. Kimelman wrote: Mr. Roustio's case is somewhat complicated by an intervening motor vehicle accident, he reports that he continues to have neck pain which is related to his motor vehicle accident, however, does not feel that subjectively that his back condition has been made materially worse as a result of this motor vehicle accident and review of Dr. Denhart's records, I believe that is this is consistent in the records. I believe there is some degree of permanency in this gentleman who, now 7 months post injury, has not been able to successfully return to work, that the chances of his being able to return to his previous level of occupation are extremely small. I agree with previous recommendations for Vocational Page 5 Rehabilitation. I additionally believe that this does represent a chronic pain condition and believe there's significant chance improvement with chronic pain with treatment at a center dealing with chronic pain syndrome. At this time I believe Mr. Roustio's injury represents between 5% and 10% impairment taking the body as a whole. (Jt. Ex. 1, p. 86) When asked for clarification, Dr. Kimelman advised claimant's counsel that claimant's cervical problem was related to a motor vehicle injury and was not considered for the purposes of his job-related back problems. Dr. Kimelman further advised that he believed claimant's back problems were causally related to his job injury. Claimant began working with Kathryn Bennett, Vocational Consultant, in approximately August of 1988. Ms. Bennett found claimant to be initially skeptical about employment outside his work with defendant employer and felt claimant was in a quandary since he was physically unable to do jobs with defendant but he was still "on the books" as an employee. It was not until after claimant's discharge from employment because his medical restrictions prevented him from working for the employer (see Jt. Ex. 2, p. 219) that she began to help claimant seek other employment. Ms. Bennett found claimant to be very talkative, very nice, a "people person" and opined that claimant can eventually find a job paying from minimum wage to what he was making with defendant employer in that claimant is capable of doing light to sedentary work. Ms. Bennett estimated that claimant, as a result of his injury, lost half or more of his job market prospect. Ms. Bennett's services were terminated by defendant insurance carrier on May 9, 1989. On July 10, 1989, claimant was admitted to the Iowa Methodist Pain Management Center for the "comprehensive interdisciplinary four week program." Claimant found that the comments he had heard did not prove true and he found the experience to be a positive one. J. Dan Smeltzer, M.A., Page 6 Sociologist, coordinator of the center, summarized claimant's overall program as: Mr. Roustio was compliant in all ways throughout the program. He demonstrated gross improvement in mood as well as appropriate increases in activity levels. Mr. Roustio did not report significant changes, specifically reductions in pain perception. It would seem given the outcome of treatment that Mr. Roustio pursue vocational rehabilitation as soon as can be arranged. The Pain Management Center staff does not see the need for further formal treatment at this time. The patient will be seen back for routine follow-up in the clinic as well as with Dr. Denhart as arranged. (Jt. Ex. 1, p. 74) After completing the program on August 4, 1989, claimant was referred to occupational therapy to identify his physical abilities and limitations. Subjectively, the evaluator found: I feel patient has a fear of reinjury and a hesitancy when he is dealing with weight and repetition, therefore, he moves slower and cautiously which can increase his pain levels as muscles are more tense. The patient's pain levels were fairly consistent throughout the program being at 4 and 5 on a scale of 5. Patient was at a 3 for less repetitive tasks and tasks that were sitting moreso [sic] than the standing tasks. (Jt. Ex. 1, page 94) Among the recommendations and conclusions reached by Vicki Torvik, work hardening consultant who conducted the maximum effort evaluation, were: I feel for this patient, working with weight of 5 or 10 lbs would be a maximum, however, working with minimal weight or under 5 lbs. would be more functional. I recommend that reaching above his shoulders and below his knees be kept to a minimum. Also, for patient to work at his own pace as he would accomplish more versus having the pressure of meeting a short deadline. PHYSICAL DEMAND CHARACTERISTICS: I place patient at the Sedentary Work category which is defined as follows: sitting for six hours out of an eight hour day; lifting no more than 10 lbs. occasionally (0-20x); possible frequent (20-100x) lifting of small objects weighing less than 10 lbs. The patient's maximum lifting of 25 lbs. would be Page 7 a high expectation for patient to meet. If patient is to transport paper in large quantities, it would be more advantageous for him to do it on a wheeled cart versus physically transporting it himself by walking and carrying the weight. I also recommend he not sit at one time for more than 20-30 minutes but be able to alternate his posture. (Jt. Ex. 1, p. 95-96) Claimant's reading skills were documented at the third grade level and math computation was at the 8.8 grade equivalency. Performances on the DAT mechanical reasoning aptitude test were poor while performances on the DAT relations aptitude test were strong. In June of 1989, claimant underwent a neuropsychological evaluation conducted by William R. McMordie, Ph.D., Clinical Neuropsychologist. Dr. McMordie stated his conclusions as: The current neuropsychological test results are consistent with a history of learning disabilities. There does not appear to be any indication that this gentleman is in the process of declining cognitively. Clinically, he would have probably been identified as an L-type dyslexic as a child. This would mean that his cognitive strengths are more of a visual learner. Relative to his complaints of memory functioning, he is likely to do better using visual aids and written notes in attempting to recall material. It does not appear that this gentleman is attempting to purposefully malinger a memory deficit, however, because of the unusual nature of the findings, the possibility of embellishment of an existing problem might be likely. (Jt. Ex. 1, p. 82) Claimant has a high school diploma through a "mail order" class having dropped out of school in the twelfth grade because it was "really hard" and he "could not keep up." Claimant is currently attending classes at the Des Moines Area Community College in "the basics" of spelling and reading. Claimant's wife has assisted him with his reading and spelling while he was employed as a supervisor with defendant employer. Claimant, at the time of hearing, found his pain "excruciating" at times and at times tolerable and that the use of a TENS unit has helped him deal with his pain. Claimant has been unsuccessful in securing employment and asserted he attempted to get alternate work with defendant employer but no work was available. Eugene Veler, director of environmental services with defendant employer, believes claimant, even in light of his medical restrictions, could fulfil the duties of an area manager, a job which claimant held from 1979 until a voluntary transfer occurred in 1987. No openings for an area manager have existed with the medical clinic. Page 8 reasoning and conclusions of law An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The parties have agreed that on November 12, 1987 claimant sustained an injury which arose out of and in the course of his employment which caused a temporary total disability/healing period from November 12, 1987 through March 18, 1988. What is at first an issue is whether this work injury is the cause of the disability on which claimant now bases his claim. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 12, 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). 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). As there is no dispute claimant was injured on November 12, 1987, there is likewise no dispute that claimant was injured in an automobile accident in 1982. However, Michael J. Stein, D.O., a neurologist, who primarily treated claimant for this injury, reported on April 21, 1983 that he could find no evidence that claimant needed to be followed medically any longer as claimant was doing well. This problem thus seems to have resolved well before the work injury. There is no evidence in the record to show that claimant ever received any permanent impairment rating or employment restrictions on account of this injury. Claimant has also had a number of incidents since this work injury including a slip and a fall and an automobile accident. However, Dr. Denhart, to whom all these incidents were reported, appears to consider these no more than flare-ups of claimant's underlying condition caused by the work injury. [See Jt. Ex. 1, p. 11..."I continue to think that the back pain is mechanical..." (emphasis added)] Dr. Page 9 Kimelman causally connected claimant's back condition to his work injury and considered the auto accident to have caused a separate cervical condition. Considering the evidence presented, it is concluded that the greater weight of evidence establishes a causal connection between the work injury of November 12, 1987 and the permanent disability on which claimant now bases his claim. Attention is thus turned to the extent of claimant's permanent disability and, concomitantly, the question of whether or not claimant is an odd-lot employee under Guyton v. Irving Jensen Co., 373 N.W.2d 102 (Iowa 1985). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd- lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such cases it should not be enough to show that claimant is physically capable of performing light work and then round out the case for noncompensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the Page 10 injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co, 288 N.W.2d 181, 192 (Iowa 1980). In determining whether claimant is an odd-lot employee, it must first be reviewed whether claimant has made a prima facie case of total disability by producing substantial evidence that he is not employable in the competitive labor market. Although the undersigned cannot dispute that claimant has obstacles to employment, it clearly has not been shown that claimant is not employable. Merely because claimant cannot return to work with defendant because of his work restrictions does not mean that claimant is not employable. The evidence presented by claimant on this issue falls far short of that needed to establish a prima facie showing that he is unemployable in the sense contemplated in Guyton, 373 N.W.2d 101. Even if claimant had made a prima facie showing, sufficient evidence has been presented to overcome this. Therefore, claimant's allegation must fail on this question as the evidence does not establish that the only services claimant can perform are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Claimant does, however, have a permanent partial disability. Dr. Kimelman opined claimant's injury represents a 5 to 10 percent permanent partial impairment to the body as a whole. Dr. Denhart rated claimant as 10 percent permanently partially impaired. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to Page 11 the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant's work history consists primarily of heavy labor: stacking bags, welding, loading, servicing mobile homes and housekeeping. However, claimant also has four years of experience with Building Maintenance Services as a working supervisor and was employed with defendant for a number of years as a supervisor before returning to housekeeping responsibilities. Claimant still possesses the transferable skills that he garnered as a supervisor. Claimant's former supervisor at Iowa Methodist Medical Center has opined that claimant, even in light of his employment restrictions, could perform the job of area supervisor. Yet, defendant employer made no effort to make any accommodations to claimant's work-caused medical restrictions. The Iowa Supreme Court has held that a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). It is unfortunate that such a large employer could find no work at all for claimant. In addition to medical restrictions imposed by his physicians, claimant has documented learning disabilities which complicate not only his ability to secure other work but also to complete some kind of retraining. Claimant has often returned to school to improve his reading and spelling skills and has again returned to Des Moines Area Community Page 12 College to get "the basics." Claimant is intellectually and emotionally (based on the rehabilitation progress notes) handicapped in his search for work. However, the greater weight of evidence establishes that claimant is employable. At 39, claimant is a relatively young man who should have many working years ahead of him. Claimant has not secured any employment since his injury. Yet, claimant appears to have cooperated with all experts who sought to help him. Consequently, his motivation should not be suspect, even if his cooperation was not freely given at the beginning. However, the fact that claimant has not secured even the most sedentary or lightest of work does cause some concern and does cause a question to be raised. When claimant voluntarily left his supervisory position for family reasons and went to a housekeeping position, he took what he described as a "large" pay cut - from $9.23 per hour to $5.68 per hour or almost 40 percent. If claimant can do nothing more than earn a minimum wage, his actual loss of earnings (not considering his time off work) is significant as a result of his injury. His work restrictions are also significant. For an individual who once was able to weld, stack bags, and perform the other heavy labor that he did as a housekeeper and working supervisor of housekeeping, lifting no more than ten pounds occasionally and less than ten pounds frequently with a maximum lifting of 25 pounds as a high expectation are fairly significant restrictions. There is little indication that claimant was malingering or not putting forth his best effort during the evaluations although claimant may be embellishing them somewhat. Therefore, considering all of the elements of industrial disability, it is determined that claimant has sustained a permanent partial disability of 50 percent for industrial purposes entitling him to 250 weeks of permanent partial disability benefits. The final issue for determination is whether claimant is entitled to certain medical expenses under Iowa Code section 85.27. That section of the law provides: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. Joint Exhibit 3 lists the disputed medical expenses as: William Roustio OUTSTANDING MEDICAL EXPENSES 1. Dr. Lester Beachy $ 142.00 Page 13 2. Mercy Hospital 1,255.00 3. Dr. Joshua Kimelman 135.00 4. City of DSM Ambulance 75.00 5. Weight Watchers 125.00 6. Exercise bike & treadmill 487.00 $2,219.00 (Jt. Ex. 1, p. 257) Defendants assert these expenses are either unauthorized (items 1, 2, 3 and 4) or not reasonable and necessary to treat the injury. Items 1, 2, 3 and 4 arise out of the incident of January 2, 1988 when claimant was refused further treatment at Iowa Methodist Medical Center after his arrest. While the undersigned would not dispute that claimant's conduct at the emergency room on that day may have been inappropriate or that neither Dr. Beachy nor Mercy Hospital Medical Center were authorized to care for claimant, claimant was left without recourse when he could not return to Iowa Methodist for treatment. It is therefore concluded that claimant's actions in contacting Dr. Beachy and reporting to Mercy Hospital under his direction constituted reasonable and necessary treatment and, therefore, defendants are liable for the expenses of items 1, 2 and 3. The same conclusion cannot be reached with regard to the ambulance charge. No evidence exists to support this as necessary and, therefore, no order for payment will be issued for item 4. Finally, claimant seeks reimbursement for the Weight Watchers program, an exercise bicycle and treadmill. These will be considered unauthorized medical expenses if for no other reason than the fact claimant was advised if he bought the equipment himself defendants would not authorize payment. Claimant was clearly on notice such expenses would be considered unauthorized. Claimant was offered a YMCA or gymnasium membership which he declined. Finally, while it may behoove us all to reduce our bulk, the Weight Watchers program was a voluntary endeavor and no order for payment for it will be issued. order THEREFORE, it is ordered: Defendants shall pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the stipulated rate of one hundred fifty-seven and 13/100 dollars ($157.13) per week commencing March 19, 1988. Defendants shall pay disputed medical expenses of: 1. Dr. Lester Beachy $ 142.00 2. Mercy Hospital 1,255.00 Page 14 3. Dr. Joshua Kimelman 135.00 1,532.00 Expenses that have accrued shall be paid in a lump sum together with statutory interest thereon, pursuant to Iowa Code section 85.30. Defendants shall receive credit for all permanent partial disability benefits previously paid as well as credit, pursuant to the stipulation in the prehearing report and order. Costs of this action are assessed against defendants, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this _____ day of July, 1990. ______________________________ DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Channing L Dutton Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Mr Glenn Goodwin Attorney at Law 4th Flr Equitable Bldg Des Moines IA 50309 5-1800 Filed July 30, 1990 Deborah A. Dubik before the iowa industrial commissioner ____________________________________________________________ : BILL ROUSTIO, : : Claimant, : : File No. 869879 vs. : : IOWA METHODIST MEDICAL : A R B I T R A T I O N CENTER, : : D E C I S I O N Employer, : : and : : AETNA CASUALTY & SURETY, : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Claimant awarded 50% permanent partial disability benefits based on work-related back injury.